Firstly, I’d like to thank Brian for his willingness to share his experiences in what was an extremely interesting write-up of the Hamdan trial. For my part, I want to focus on the distinction between lawful and unlawful combatancy, which was at the core of Hamdan’s defence strategy. I want also to say something about the significance of this trial by placing it in a wider normative context and conclude by posing some questions.
As we heard, the defence team argued that the SA7 missiles found in Hamdan’s car could not prove he was a terrorist because it was likely that they were to be used by the “Ansars” against American forces. Because the Ansars had a chain of command and wore a kind of uniform it was possible that they could be considered lawful combatants. Under the laws of war, therefore, Hamdan was not doing anything unlawful by helping to resist the US occupation of Afghanistan. This argument, it appears, helped persuade the jury to reject the charge of conspiracy to commit terrorism.
It’s worth pausing here to remind ourselves of the normative purpose behind the idea of ‘lawful’ and ‘unlawful combatancy’, which was not, despite the popular impression, a distinction that was invented by the Bush Administration. One purpose is to help stop unnecessary civilian deaths by enforcing the principle of distinction. Combatants should not target civilians and they should also distinguish themselves from civilians by wearing uniforms. Likewise, civilians cannot abuse their privileged position by suddenly deciding to become combatants. Should they decide to do this, then they can be charged with ‘unlawful combatancy’.
Another purpose is to make sure that the right to use organized violence (i.e. lawful combatancy) rests exclusively in the hands of the state and to make sure that international order is based on the idea of a society of states. The principle of ‘unlawful combatancy’, in other words, is a way of reaffirming the idea that the state has a monopoly on violence. From this perspective, the violence of a non-state actor is by definition unlawful and its perpetrators can be prosecuted. It is, therefore, a political move of some significance to define non-state actors as enemy combatants rather than criminals (in peacetime) or unlawful combatants (in wartime). At one level it undermines state sovereignty because individuals can be granted immunity from prosecution if they are recognized as enemy combatants. Furthermore, it potentially bestows legitimacy on the group that is aiming to become a state.
This concern was partly why the Reagan administration refused to ratify Protocol I additional to the Geneva Convention. Policymakers like Douglas Feith (who later served in the Bush Administration) were particularly concerned that the Protocol made it easier for national liberation movements to be defined as lawful combatants and that it would bestow credibility on the PLO. As long as the state’s exclusive right to violence is ceded only to state-like actors, however, the international significance of such a move is somewhat absorbed.
In other words, to bestow a right of lawful combatancy on “national liberation movements” is not a threat to international order because such movements want to be recognised as states. It is, however, a radically different prospect to bestow the right of lawful combatancy on transnational non-state actors because such entities do not even aspire to join the society of states. In fact, such a move would imply that the laws of war are helping to constitute a very different kind of (post-Westphalian) international society, one where the right to violence no longer rests in the hand of state or state-like actors.
Now, although the Bush Administration risked this implication by calling the Al Qaeda network enemy combatants (as opposed to common criminals), it also avoided it by arguing that Al Qaeda operatives were in fact unlawful combatants. This was because, the administration explained, the detainees were fighting on behalf of a transnational network that had not (and indeed could not) sign the Geneva Conventions. This was clearly a self-serving (and ultimately incorrect) interpretation of the GCs, one that sought to release US officials from their obligations to, for example, convene a competent tribunal and to treat detainees humanely. But the Administration’s classification of Al Qaeda as unlawful combatants did reaffirm the principle that transnational non-state actors could not claim those rights (e.g. immunity from prosecution) that the lawful enemy combatants of state and state-like actors can claim.
This brings me to the question that has been raised by Brian’s account of the Hamdan trial. Certainly it was a defeat for the Bush Administration and a victory for those who believed the Geneva Conventions should not have been discarded in the ‘war on terror’. But what is the implication of saying that the Ansars, a wing of Al Qaida, are lawful combatants? Of course, it makes sense if we limit the ‘war on terror’ to US action in Afghanistan. We might be able to accept that these fighters had a right (if not a reasonable justification) to defend Afghani sovereignty. But can we be sure that we have not set a precedent whereby the Ansars will be able to claim the rights of lawful combatants when they act on the transnational battlefield?
Any attack against civilians will of course be illegal and should be prosecuted. But will the Ansar’s status as lawful combatants now mean it has to be prosecuted as a ‘war crime’ rather than a criminal act in peacetime? And what if the Ansars observe the principle of distinction and attack military targets in western countries such as the Pentagon? Will their status as ‘lawful combatants’ mean they can only be detained as prisoners of war with immunity from prosecution? Of course, these questions would not be asked if the US dropped the idea of a “transnational battlefield” and adopted the practice of other liberal democracies, which is to see terrorists as “criminals” rather than “combatants” and to deal with them through the normal criminal justice process.
Jason Ralph is Senior Lecturer in International Relations and School Director of Research, School of Politics and International Studies (POLIS), University of Leeds. He is the author of Defending the Society of States: Why America opposes the International Criminal Court and its Vision of World Society (Oxford University Press, 2007).