Should Terrorists Be Considered As Combatants under Humanitarian Law?

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In the past, the world had dealt with issues existing in war time which happened between state and state or among states. After World War II that caused a large number of people dead including soldiers and civilians, states come together to establish rules in order to limit the dead of people, protect civilians and ensure morality during armed conflict, particularly the Hague Law and Geneva Law. Under these humanitarian laws, states’ armed forces are classified as lawful combatants who can perform operation, participate in hostilities and can be a lawful target during war.[1] Also, the law provides a protection to non-combatants including civilians, prisoner of war (POW), wounded, sick, and so on.

However, in this new century, the world has to deal with other type of issue happening in a peace time. It is the act of terrorism committed by terrorist groups. Terrorism refers to “Only to those violent acts that are intended to create fear (terror); are perpetrated for a religious, political, or ideological goal; and deliberately target or disregard the safety of non-combatants (civilians).”[2] Recently, there is no provision mentioning in the International Humanitarian Law of terrorist groups in term of classification and measurement. At the same time, those acts continuously cause a thread to the world’s order and stability. Therefore, a question arises should terrorists be considered as combatants under humanitarian law?

In the last decades, the attacks of terrorist groups are increasing noticeably. Most of the time, they are considered as criminals under national law of states. In contrast, on 11 September 2001, two commercial airliners were deliberately flown into the World Trade Center towers, a third into the Pentagon, and a fourth, originally intended to target the United States Capitol, crashed in Pennsylvania. This severely and surprisingly attack leads the United States and the world to change their viewpoints on terrorists, and it is the starting point of a hot debate which terrorists should be referred as criminal or combatant. The US had shifted its stand to classify those groups as enemy combatants. The term “enemy combatant” can be defined as “a person who, either lawfully or unlawfully, engages in hostilities for the opposing side in an international armed conflict.”[3]

Enemy combatants can be divided in to lawful and unlawful. For lawful enemy combatant as mentioned above, are armed forces that engage or involve in fighting. According to article 4 of Geneva Convention on Prisoner of War provides clear conditions of lawful combatants following: “a) that of being commanded by a person responsible for his subordinates; b) that of having a fixed distinctive sign recognizable at a distance; c) that of carrying arms openly; d) that of conducting their operations in accordance with the laws and customs of war.”[4]

On the other hand, unlawful combatant is “an individual who violates the law by engaging in combat; an individual who is involved in but not authorized to take part in hostilities; also called illegal combatant, unprivileged combatant.”[5]  For instance, it can be civilians and protected personnel taking part in hostilities. The US had considered terrorists as enemy combatants who are much more refer to unlawful combatants. The US under Bush administration decided to declare so because it intended to use the military forced to take action in combating terrorists rather than just using state security which is somehow hard to deal with this case.

Therefore, terrorists should be considered as combatants due to three main arguments. First, terrorist groups are large groups of forces which conduct serious attacks. Though it does not really take part in hostilities; however, it causes a serious attack and kill a large number of civilian who are innocent, for instance, there was 3000 people died in the 9/11 attack.[6] With different from criminals, they are threatening not just one area or city, yet the whole nation’s and the world’s peace and stability. Hence, such the case 9/11 attack by using a police state to prevent this kind of case is quite impossible due to they can protect only the surface of the problem, but not the root cause of it. Thus, in order to get into the root cause, there is a need of state combatants taking action and perform an operation to fight against terrorist groups. It is the only way in order to eliminate the terrorism and terrorist to continue taking actions which can be much more seriously in the future. Otherwise, there will be still terrorism existed again and again from time to time which will never end. Since it is a large group of people, by just considering them as criminals, it will be hard to deal with them because the problem will only be solved with individual and single person, and not the whole group, and thus, the issue will never end. Additionally, if the world considers terrorists as criminals, then states need to arrest them one by one to prosecute in domestic court, yet by doing so it will be a waste of time and likely to provide time for terrorist groups to commit further destruction and fulfill their goals.[7] We need to understand the reality of it – there are thousands of them, so it would be impossible to arrest all of them to prosecute and detent all of them in domestic custody. States cannot just wait for them to arrive and successfully commit operations in their states that they take action to deal with it. They need to take action directly, to seek for them, and combat them by using forces governed by the Law of Armed Conflict to apply.

Second, terrorists normally do not perform an attack through their own purposes but commanded by a person from higher level. This is the major point which can be pointed out to distinguish between criminals and combatants. The purpose of criminal acts often for self-interest and decision is made by criminals themselves. Even there are an order from someone, still there is no purpose to act against state governments, whereas terrorists which are commanded from their top leaders to perform an attack, have a purpose to fight against the government of one state in term of politics, religions, and ideologies, for example, Al-Qaeda.

Third, terrorist groups are established with a clear structure within their organizations. From this point, there are much different between group of criminals which have no specific structure and positions. Thus, even they are just a formation of organization, yet they should be considered as combatants since they are structured similarly to state combatants and acting against state governments. For terrorist groups like Taliban, it can even be classified as a state armed force. There are four criteria for entity to be recognized as a state under international law such as a defined territory, a permanent population, and control by its own internal government, and the capacity to enter into international relations.[8] Likewise, the Taliban controls ninety percent of the territory of Afghanistan as well as governed the population. It had the capacity to establish diplomatic relations with Pakistan, Saudi Arabia, and United Arab Emirates.[9] Therefore, it is likely that the Taliban can be regarded as a state, yet it does not seek to be so due to the condemned of the world to its method of govern the country.

Terrorists have been regarded as criminals and responsible for their unlawful acts under the domestic jurisdiction and laws of the state that captures them, yet there is a change in recent time. When terrorist violence rose to the level of an armed attack against states, the world viewed the perpetrators as enemy combatants. Also, it is necessary for commanders to understand how the law of armed conflict applies to the various enemy forces they are likely to encounter while combating terrorism.

To sum up, to regard terrorists as criminals or combatants is still blurred. However, terrorists should be considered as combatants due to they are large structured groups which conduct attacks again states. By considering terrorists as combatants, states will be able to deal with them much conveniently and effectively to ensure peace and stability in all nations on earth. On the other hand, going to war with terrorists might be the last resort, so states need to try their best to choose other measures by all means to deal with the issue before declare war with terrorists. In 2009, President Barack Obama declared ending the classification of terrorism as enemy states; as a result, there will be more difficult to deal with terrorists.

 

End notes

[1] “The relevance of IHL in the context of terrorism,” ICRC: Resource Centre, 2011,

http://www.icrc.org/eng/resources/documents/faq/terrorism-ihl-210705.htm, February, 21 2014.

[2] “Terrorism Definitions,” Terrorism Today, http://terrorismtoday.org/definitions/, February, 21 2014.

[3] Supra note 1

[4] “The Geneva Convention of 12 August 1949,” ICRC.

[5] “Unlawful Combatant,” https://www.princeton.edu/~achaney/tmve/wiki100k/docs/Unlawful_combatant.html, February, 21 2014.

[6] “Winnipegger heads to NY for 9/11 memorial,” CBC News, Sep 9, 2011,

http://www.cbc.ca/news/canada/manitoba/winnipegger-heads-to-ny-for-9-11-memorial-1.991431,  February 21, 2014.

[7] Feldman, Noah, “Choices of Law, Choices of War,” Harvard Journal of Law and Public

Policy, vol. 25 (Spring 2002): 468.

[8] Restatement of Foreign Relations Law 3d, Sec. 201 (1986)

[9] “Saudis Break Diplomatic Ties With Taliban,” CNN.com./World, 25 September 2001,

http://www.cnn.com/2001/WORLD/asiapcf/central/09/25/ret.saudi.taliban/, February 21, 2014.

 

Bibliographies

“The relevance of IHL in the context of terrorism,” ICRC: Resource Centre, 2011,

http://www.icrc.org/eng/resources/documents/faq/terrorism-ihl-210705.htm, February, 21 2014.

“The Geneva Convention of 12 August 1949,” ICRC.

“Unlawful Combatant,”

https://www.princeton.edu/~achaney/tmve/wiki100k/docs/Unlawful_combatant.html, February, 21 2014.

“Saudis Break Diplomatic Ties With Taliban,” CNN.com./World, 25 September 2001,

http://www.cnn.com/2001/WORLD/asiapcf/central/09/25/ret.saudi.taliban/, February 21, 2014.

Restatement of Foreign Relations Law 3d, Sec. 201 (1986)

Feldman, Noah, “Choices of Law, Choices of War,” Harvard Journal of Law and Public Policy, vol. 25

(Spring 2002): 468.

“Winnipegger heads to NY for 9/11 memorial,” CBC News, Sep 9, 2011,

http://www.cbc.ca/news/canada/manitoba/winnipegger-heads-to-ny-for-9-11-memorial-1.991431,  February 21, 2014.

Clark, Wesley K. & Raustiala, Kal,”Why Terrorists Aren’t Soldiers,” The New York Times:

Opinion, Aug 8, 2007, http://www.nytimes.com/2007/08/08/opinion/08clark.html?_r=0, February 21, 2014.

“Terrorism Definitions,” Terrorism Today, http://terrorismtoday.org/definitions/, February, 21 2014.

2 thoughts on “Should Terrorists Be Considered As Combatants under Humanitarian Law?

  1. I hadn’t thought much about the legal methodology with which international law should classify various “terrorists,” so your post was really thought-provoking. Thanks!

    Do you know when the UN will complete an international convention regarding this issue of combatant-or-criminal? Is there some kind of target date?

    I wrote a post recently that’s related, if only tangentially (below):
    http://themedfordpact.wordpress.com/2014/04/17/syria-and-shedding-pop-tarts/

  2. You’re welcome! Actually, it is an interesting topic to discuss or debate. By the way, I don’t think the UN has a plan to do so right now, but hopefully in the future. Thanks for your suggestion. I will spend time to read yours.

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