Illegal combatant

Illegal combatant (also unlafwul combatant) is a term that has been introduced in the U.S.A. and in Israel for a person who carries arms or engages in warlike acts in alleged violation of the laws of war. Such a person is not considered a lawful combatant and therefore is not accorded the rights of a prisoner of war (POW).

The term was first introduced in 1942 by a United States Supreme Court decision in the case ex parte Quirin (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=1). In this case, the Supreme Court upheld the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs in the US. This decision states (emphasis added and footnotes removed):

"...the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

The term was also introduced in Israeli legislation in the year 2000 to make it possible to detain Palestinians accused of security offences without trying them under civilian law.

Criticism

This term has no status in international law whatsoever, and the introduction of this category of prisoner by these nations has little support in other nations - many view it as a simple attempt to sidestep the Geneva Convention's terms.

Under this Convention and other treaties, the established approach is that a person is either a civilian tried under civilian law or a combatant treated as a prisoner of war. Furthermore, it is generally accepted that the detaining power does not have final authority over the PoW designation of detainees.

The term illegal combatant has mainly been used to deny detainees basic civil rights, such as the right to a counsellor, a speedy trial and right of appeal. It has been argued that this gives governments a right to arbitrarily suspend the rule of law in a way that should not be accepted.

Some governments whose nationals have been detained with this status, notably Canada, Britain, and Sweden, have intervened to limit the degree to which the rights of their nationals have been suspended. In general this has been handled on a case-by-case basis as numbers are few.

Many governments and human rights organizations worry that the introduction of the illegal combatant status sets a dangerous precedent for other regimes to follow. Ironically, when the government of Liberia detained American activist Hassan Bility[?] in 2002, Liberian authorities dismissed the complaints (http://www.state.gov/r/pa/prs/ps/2002/11718.htm) of the United States, responding that he had been detained as an illegal combatant.

Protest

Some citizens have declared solidarity with prisoners accorded this status, especially by declaring their profession to be 'illegal combatant' on official forms, especially if arrested during anti-war protest[?] or anti-globalization movement activities. This practice is most common among anarchists, situationists, and Marxists who view the eradication of human rights as a necessary pre-requisite to the eradication of the state. Rather than seek reinstatement of international law, they seek its abolition or ridicule. Some argue that this strategy plays into an oppressor's hands.

References

• Executive Order authorizing the detention and trial by military tribunal of those deemed to be foreign terrorists (http://www.law.uchicago.edu/tribunals/exec_order)
• ex parte Quirin (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=1), U.S. Supreme Court Decision (1942)
• Eurolegal services page on the legal status of the Guantanamo Bay detainees (http://www.eurolegal.org/uscivilrightspage5.htm)

See also: combatant, franc-tireur, laws of war, class war