Here is an interesting Perspective, in Part. From 2004
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1. REPORT DATE (DD-MM-YYYY)
09-02-2004
2. REPORT TYPE
FINAL
3. DATES COVERED (From - To)
4. TITLE AND SUBTITLE
TERRORISTS AS ENEMY COMBATANTS
5a. CONTRACT NUMBER
An Analysis of How the United States Applies the Law of Armed Conflict
5b. GRANT NUMBER
in the Global War on Terrorism
5c. PROGRAM ELEMENT NUMBER
6. AUTHOR(S)
MAJ Scott Reid, USA
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Paper Advisor (if Any): CDR Burton Waltman
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Joint Military Operations Department
Naval War College
686 Cushing Road
Newport, RI 02841-1207
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13. SUPPLEMENTARY NOTES A paper submitted to the faculty of the NWC in partial satisfaction of the
requirements of the JMO Department. The contents of this paper reflect my own personal views and
are not necessarily endorsed by the NWC or the Department of the Navy.
14. ABSTRACT
Commanders need to understand how the law of armed conflict applies to the various enemy forces they are likely to
encounter while combating terrorism. Historically, terrorists have been regarded as bandits and held criminally responsible for
their unlawful acts under domestic law. However, after the attacks on the World Trade Center and Pentagon in September 2001,
the U.S. decided to engage transnational terrorists in armed conflict. As enemy combatants, terrorists may be lawfully killed by
virtue of their membership in the enemy group rather than their individual conduct.
If a nation’s armed forces harbor or support terrorists, the facts will determine whether they are lawful or unlawful
combatants. Lawful combatants are protected under the Geneva Convention Relative to the Treatment of Prisoners of War and
entitled to specific privileges while captured. Unlawful combatants have no such rights. The President has considerable latitude
in identifying, detaining, and punishing them.
As U.S. forces engage terrorists and the states that harbor them, we should expect to encounter both lawful and unlawful
combatants. This paper explains what the difference is and why it matters.
15. SUBJECT TERMS
Terrorism; combatants; POWs; detain
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TERRORISTS AS ENEMY COMBATANTS
An Analysis of How the United States Applies the Law of Armed Conflict
in the Global War on Terrorism
By
Scott Reid
MAJ, U.S. Army
A paper submitted to the Faculty of the Naval War College in partial satisfaction of the
requirements of the Department of Joint Maritime Operations.
The contents of this paper reflect my own personal views and are not necessarily endorsed by
the Naval War College or the Department of the Navy.
Signature: ___________________
9 February 2004
TABLE OF CONTENTS
Introduction -------------------------------------------------------------------------------------- 1
Part I: Jus ad Bellum – Justifying the Use
of Armed Force Against Terrorists ------------------------------------------------ 2
A. The Significance of Engaging Terrorists
As Enemies Instead of Criminals ---------------------------------------------------- 2
B. Authority to Use Military Force Against Terrorists ----------------------------- 2
Part II: Jus in Bello – Examining the Rules That Apply
to Al Qaeda and Taliban Forces as Enemy Combatants ----------------------- 3
A. The Privileges of Lawful Combatancy --------------------------------------------- 3
B. The U.S. View: Al Qaeda and Taliban
Are Unlawful Combatants ----------------------------------------------------------- 4
C. Al Qaeda Members Are Always
Unlawful Combatants ----------------------------------------------------------------- 4
D. Taliban Forces Are Unlawful Combatants
Because of Their Conduct ------------------------------------------------------------ 5
1. The Geneva Conventions Apply to the Taliban ------------------------------ 5
2. The Taliban Failed to Qualify As Lawful
Combatants Eligible for POW Protections ------------------------------------ 7
a. Wearing emblems and carrying arms --------------------------------- 8
b. Failure to conduct operations in accordance
with the laws and customs of war --------------------------------------- 10
c. A cautionary note ---------------------------------------------------------- 10
E. Rules Governing Detention ------------------------------------------------------------ 11
1. Conditions of Internment ----------------------------------------------------------- 11
2. Repatriation --------------------------------------------------------------------------- 11
3. The President’s Military Order
– Authority to Detain “Certain Non-Citizens” ----------------------------------- 12
4. Challenging Detention ----------------------------------------------------------------- 13
a. In Federal Court --------------------------------------------------------------- 13
b. Geneva POW Convention -- Article 5 Tribunals ------------------------ 14
F. Lawful Combatants Receive Greater Due Process
if Charged With a Crime ------------------------------------------------------------------ 15
Conclusion --------------------------------------------------------------------------------------------- 16
Abstract
TERRORISTS AS ENEMY COMBATANTS
An Analysis of How the United States Applies the Law of Armed Conflict
in the Global War on Terrorism
Commanders need to understand how the law of armed conflict applies to the various
enemy forces they are likely to encounter while combating terrorism. Historically, terrorists
have been regarded as bandits and held criminally responsible for their unlawful acts under
domestic law. However, after the attacks on the World Trade Center and Pentagon in
September 2001, the U.S. decided to engage transnational terrorists in armed conflict. As
enemy combatants, terrorists may be lawfully killed by virtue of their membership in the
enemy group rather than their individual conduct.
If a nation’s armed forces harbor or support terrorists, the facts will determine whether
they are lawful or unlawful combatants. Lawful combatants are protected under the Geneva
Convention Relative to the Treatment of Prisoners of War and entitled to specific privileges
while captured. Unlawful combatants have no such rights. The President has considerable
latitude in identifying, detaining, and punishing them.
As U.S. forces engage terrorists and the states that harbor them, we should expect to
encounter both lawful and unlawful combatants. This paper explains what the difference is
and why it matters.
1
INTRODUCTION
The recent activities of transnational1 terrorist organizations have transcended the realm
of mere criminality. For more than a decade, the Al Qaeda terror network has repeatedly
attacked U.S. citizens, property, and military interests, to wit: the World Trade Center in
1993, the U.S. Embassies in Kenya and Tanzania in 1998, the U.S.S. Cole in a Yemeni port
in 2000, and the World Trade Center and Pentagon on September 11, 2001. Al Qaeda has
been characterized by one observer as a “modern army” with combat power, considerable
financial resources, decentralized command and control, and operational reach into all the
nations of the world.2 The President has responded to Al Qaeda’s asymmetric attacks with
military force, which perversely elevates the status of these terrorists from criminals to
enemies.3 When the Taliban government of Afghanistan persisted in providing Al Qaeda
with a safe haven, it became our enemy as well.4
Military commanders need to understand how the laws of armed conflict apply when
terrorists are treated as enemy combatants. Using Operation Enduring Freedom as an
analytical model, this paper demonstrates the legal advantages of treating terrorists as
enemies while highlighting the distinctions between lawful and unlawful combatants. Part I
sets forth the legal framework for using armed force against Al Qaeda and the Taliban, and
explains the advantages of treating terrorists as enemy combatants instead of criminals. Part
II analyzes the Bush Administration’s decision that neither Al Qaeda nor Taliban forces are
lawful combatants, focusing on the criteria for lawful combatancy and the rules regarding
detention and punishment. Careful study reveals that transnational terrorists will always be
unlawful enemy combatants, but the issue is fact-dependent with regard to the armed forces
of states that support terrorism...............
http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA422754&Location=U2&doc=GetTRDoc.pdf
http://www.fas.org/man/eprint/reid.pdf
