THE CONCEPT Of ILLEGAL COMBATANTS: A CASE STUDY OF THE AFGHAN DETAINEES IN GUANTANAMO BAY
M.O.U Gasiokwu, Ph.D
On 11September 2001, the unexpected happened. Terrorists, in four separate gangs, hijacked four American passenger planes to attack New York and Washington D.C. The attacks on New York and Washington were successful as they pulled down the twin towers of the World TradeCentre (W.T.e .)andThe Pentagon (the military nerve centre of the United States).
The U.S. authorities linked the attack to a terrorist network known as AI Qaeda.This organization is said to have been founded, and is being funded and managed by a dissident Saudi Prince, Osama binLaden. At the time of this attack, Osama binLaden was saidto beresiding in Afghanistan. Osama denied involvement in the attack, but expressedhappiness that it happened.
America subsequently declaredwar on terrorism, which also meant war against Afghanistan, which allegedlywas hosting Osama binLaden terrorism personified.
The war against terrorism, the Afghan sector, has now come to an end with America emerging the victor. Taliban- the then officialgovernment of Afghanistan, and the alleged custodian of terrorism has been overthrown. The officialsof Talibani,ncluding soldiersand various other combatants and other actors labelleads supporters of terrorism were captured and taken to a specialdetentioncamp(specificallbyuiltfortheallegedterrorists)in Guantanamo Bay, Cuba.
One would have thought that these people captured or who surrendered would ordinarilyqualify as prisoners of war for the purpose of availing themselves of the relevant provisions of The Hague Rules and Geneva
Conventions with respect to the treatment of such persons. America has, however, said that the captives are not prisoners of war but detainees as they are (accordingto the Americans) illegcaolmbetsnts. A 'ccording to S Andrew Card - the White House Chief of Staff, the detainees are unlawful combatants and not protected under the Geneva Conventions.
James Inhofe, a member of the U.S. Senate, and Mr. Rumsfield, the U. S. Secretary of Defence allagreed with Mr. Andrew Card in his assertion that the detainees are illegalcombatants. They allproffered the same reasons, which are that the detainees do not belong to any military unit, they do not wear uniforms nor have any externalinsigma and are not an organized unit. So they are terrorists.
The aim of this chapter is to locate and .determine the concept of illegal combatants, and examine their legal status in the jurisprudence of 1 international humanitarian law. To achieve this, the chapter examines generally the concept of war and the causes of war. The chapter further determines the actors/combatants in war, for the purpose of ascertaining who can lawfully participate as a combatant in a war and those who can be christened illegalcombatants. The position of mercenaries and spies is also determined. The question as to who prisoners of war are is also answered herein, to enablea clearunderstanding of the distinction (ifany) between those who can enjoy the status of prisoners of war (POW), and illegal combatants, as being canvassed bythe USA.
The Talibanhas also been x-rayed to determine its place in the political configuration of Afghanistan and its status as the recipient of the wrath of the U.S-ledwar against terrorism.
THE CONCEPT OF WAR 2
According to Vattel". war is the condition in which nations prosecute their
rights byforce. [n the opinion of Washington, J. o , f the U.S. Supreme Court, war is "an external contention by force between ... two nations?", while Wheaton opines that war is essentiallya struggle between States, involving the applicationof force.
These definitions clearlyillustrate the prevailing attitude towards war that existed at the end of the eighteenth century and even throughout the nineteenth century. Wars then could be only between nations or between States as the sole subjects of international.
War in the succeeding years has been defined to take cognizance of other subjects of international law other than States, and other entities that have, out of necessity, been forced to prosecute their rights byforce. War has thus also been defined as a "contest between two distinct entities." "a state of conflict:a contest between two States or between two parties within a State (civwialr)carriedoutbyarms.?''
Inallof these definitions, some elements appear to becommon, namely, two or more parties are involved, there is prosecution of rights, and it is carried out by arms. However, while the eighteenth century writers restricted the prosecution of war to mean between nations or between States, their successors saw wisdom in expanding the definition to encompass other subjects of international law. Blischenko, who prefers the use of the term "armed conflict" defines it to mean "a military confrontation between subjects of international law, which include, from the viewpoint of international practiceand contemporary international law, States fighting for national independence and nations and international organizations committing acts of aggression, breaching the peace, or threatening international oeace.;. H ' e concludes that" ... the concept of armed conflict includes alltypes of militaryoperations in any form"."
Whereas in relationto States or nations engaging in war, there is complete
agreement in both theory and practice, in relation to international organizations and peoples struggling for self-determination, opinions may differ. It is, however, submitted here that whatever objectionexiststo their inclusion as parties to armed conflicts cannot be sustained in the face of contemporary realities.The 1991 "Operation Desert Storm" which ejected Iraq out of Kuwait was carriedout under the auspices of the United Nations (aninternational organization). Years after, NATO descended on Yugoslavia in defence of human rights violation by the government of Milosovic. ECOMOG operation in Sierra-Leone to restore the democraticallyelected government of Kabbah was also a war against unlawful seizure of government.
The right of every people and nations to wage armed struggle for self -determination has also been recognized by the comity of nations. A resolution of the Twenty-Third GeneralAssembly reaffirmed the legitimacy of armed struggle waged bycolonialpeople in the exerciseof their right to self determination and independence. Many of such movements - SWAPO in Namibia,ANC in South Africa, ZANU in Zimbabwe, MPLA in Angola, PLO in Middle East, engaged at one time or the other in armed struggles for their cherished idealsand receivedinternational recognition. To that extent, the definition of Blishchenko enjoys the approval of this author ..
Human history has witnessed various causes of war - beginning with war between slaves and slave owners, the feudal lordsand the vassalsand the bourgeois classand the proletariat.These struggles within the four historic socialeconomic formations were anchored on violation of human rights.
Class/group oppression and domination has given riseto rebellionrsesulting in armed conflicts.Some of these rebellionwsere successful and resulted in proclamation of legal acts limiting some of the powers of the ruler in favour of his vassals;for example, in England, the 1215 Magna Carta Libertatum and in Poland 1425 NeminemCaptivabimusnis i ureVietum. The French
1789 bourgeois revolution was an armed conflict in protest against the oppression and exploitation by the -feudal ruling class and unbearable limitation imposed by them on the rights of individuals. That revolution produced what is today known as "The Solemn Declaration of Natural, Inalienablaend Sacred Rights of Man and Citizen." In May 1755, thirteen British Colonies in America had declaredwar against England in protest against the politicallyoppressive and economically exploitative British Colonialdominion.Theresultofthisrebelliownasthe4 th of July 1776 United States Declarationof Independence.
The various liberationwars that took place in Africa were struggles for independence, self-determination (in Angola, Namibia and Zimbabwe) abolitionof racialdiscrimination and apartheid (inSouth Africa).Wars have also been fought in order to establishor resist the establishment of one or the other form of socio-economic formation (inVietnam, Korea),to secure territories (Israealnd PLO) to protect the norms of international law (UN Allied Forces in Kuwait), to prevent genocide (NATO Forces in Yugoslavia) to restore democracy (ECOMOG in Sierra-Leone),etc.
Before the League of Nations, States were a lick to resort to war at the slightest provocation. Diplomatic channels were not exploredfully to clear any misunderstandings.
ItwasawidelyheldbeliefatthetimeoftheFirstWorldWar,thatifStates only had a forum in which to discuss their problems, misunderstandings would have been clearedup .and that war would have been avoided.
Ina famous introductory passage to his work TEMPRAMENTA BELLI, GROTUS' laments thus:
Throughout the Christian World, Iobserveda lack of restrainin relation to war which ...even barbarousraceswould beashamed of.
Iobservedthat men rush to arms for slight causes of no causalat and that when arms have once been taken up, there is no longer and respect for law,divine or human it is as if in accordancewith a general decree, frenzy had openly been let loose for the committing of allcrimes."
The League of Nations was thus created to provide a forum for discussion. The Covenant of the League restrictedthe right to resort to force, but did not abolishwar. Under Article 12(1) member States agreed that, if there arose between them any dispute capableof leading to armed conflict, they would submit the matter either to arbitrationor judicialsettlement, or inquiry by the Council, and they agreed in no case to resort to war, until three months after the award of the arbitratoror the judicialdecisionor the report bythe Council. This three months "cooling period", it was reasoned, would prevent the accidentaloutbreak of hostilities." In 1928 however, the Kellogg Briand Pact ll was signed in which sixty-three States solemnly declaredin the names of their respective peoples that they condemned "recourse to war for the solution of international controversies" and renounced it "as an instrument of national Policy in the relationswith one another."
The United Nations had alsoin its Article 2(3 & 4) enjoined member States to settle their international disputes by peaceful means in order not to endanger international peace and security. "All members shallrefrainin their international relationsfrom the threat or use of force against the territorial integrity or politicalindependence of any State ... "
From the Kellogg-Briand Pactto the U.N. Charter, it would besafe to say that States ought to settle their differences through diplomatic channels and that any event of war is reason enough to conclude that diplomacy has failed.
Tunkin'", had noted that between 1945 - 1985 there have been more than 140 wars and armed conflicts; and that within the said period, armed conflicts and wars broke out on the territory of 69 countries with the participation of 81 States. One could at risk of speculation say that between
1985 -200 I,more than 10 wars have been fought allover the world. The American war against terrorism, which generated the subject matter of this chapter, isstillon.
Participants in MilitaryOperations Inany war situation, international law placesdistinction between combatants and non-combatants; for the purpose of determining who could qualify as a Prisoner of War (POW). Before the Additional Protocol of 1977, combatants under the Geneva Convention of 1949 included members of armed forces, irregular forces and alsoresistancefighters who upon capture are entitled to prisoner-of-war status.
The non-combatants are usually the civilianpopulation. It has been reasoned that:
Private individuals who take up arms and commit hostilities against the enemy do not enjoy the privilege of armed ∙forces and the enemy has ... the right to treat such individualsas war criminals. But they cease to be private individuals if they organize themselves in a manner which according to the Hague Convention confer upon them the status of members of regular forces 13.
This reasoning has been probablyanchored on the attitude of that period, that war is often a matter for States and their armies, not individuals.Non-combatants are those who cannot lawfully be attacked but who cannot themselvescommitactsofhostilityor,iftheydo,willbeliabltoetrialaswar criminals.
The law identifiesthree categories of combatants; namely;
(aJ Armed forces-whose membership constitutes the largest number of
persons in this group. They are referred to as regular combatants. Every State has the right to determine the composition of its armed forces, be it part time, volunteer, or militiaqroup'", The important thing is whether these different groups are included in the broadgroup' Army'. Where they do, it follows that they should beaccordedprisoner-of-war status"
(b) Resistanftorces-This is another category of combatants otherwise referred to as non-regular combatants. These are not members of the regular armed forces. According to the Geneva Convention of 1949 Relative to the Treatment of Prisoners of War:
The inhabitants of a non- occupied territory who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves (intoregular armed units in accordance with (Art. I)shall be regarded as belligerentif they carryarms openly and if they respect the laws and customs of war. 16
Irregularforces will, therefore, enjoy the rights of combatants if they comply with the above-mentioned conditions.
ee R l esistanMtovements-this is the third group of combatants that are entitled to prisoner-of-war status. The Hague Rules of 1907 did not cover themandsobeforetheGenevaConventionof1949wereliabltoeexecution as war criminals.Art 4(a)of the Prisoner-of-war Convention 1949 provided for members of other militiaand members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflict and operating in their own territory, even if this territory is occupied, provided that such militia or volunteer corps including organized resistant movements, fulfillthe following conditions:
i. becommanded bya person responsiblefor his
ii. have a fixeddistinctive sign recognizableat a distance,
iii. carryarms openly, and
IV. conduct their operations in accordancewith the laws and customs of war.
It is necessary to point out that the second and third of these conditions do not always accord with the conditions of guerrilla warfare On occupied territory, because the less exposed they are, the better for their cause. Important additions to the Geneva Conventions of 1949 are the two Protocols adopted bythe Geneva Conference un loth June 1977; namely, the protocols concerning the Protection of Victims of InternationalArmed Conflicts, and the Protocol concerning the Protection of Victims of ,Non- International Armed Conflicts. (ProtocolsI & II).
Protocol 1 of 1977 abolishedthe method of allowing States the right to determine who should be treated as combatants. It provides that all members of the armed forces of a party to a conflict are combatants, with the exception of medical personnel and chaplains. Should these groups of persons. fallinto the hands of the adversary,they are entitled to prisoner-of-war status. Where members of armed forces refuse to comply with the rules ofinternaldisciplinarysystem,theywillbeliablteotrialaswillothernon-combatants who take part directlyin hostilities and shall not enjoy prisoner-of-war status. Non-combatants, made up of the population, medical personnel and chaplains, provided that they do not directlyparticipate in hostilities, have the right to defend themselves when attacked, and shall not losetheir prisoner-of-war status byso doing.
Mercenaries and Spies
The Geneva Conference of 1977 did not recognize mercenaries as legitimate combatants. They are criminally liableA.ccording to Article 47 of the
Additional Protocol I, a mercenary does not enjoy the right to the status of a combatant or prisoner-of-war. In the Protocol, the mercenary is defined as "any person who is specificallyrecruited locallyor abroad,to fight in an armed conflict. for material compensation substantially in excess of that promised or paid to combatants of similarranks and functions in the armed forces of that party." A mercenary is neither a national of the State involved in the armed conflict nor resident therein nor in a territory in the control of that State. He isalsonot a member of the armed forces of that country nor is he sent byhis own State on officialduty to take part in the hostilities.
In relationto spies, the law forbidsthe obtaining of information through the employment of spies. Under the Hague Rules as amplified by Protocol 1,17 a spy is any person who when acting clandestinelyand under false pretences, obtains or endeavours to obtain information in a zone of operations of a belligerentor in a territory controlled by a belligerentwith the intention of communicating such information to a hostile party. A person so acting is engaged in espionage. Any member of the armed forces of a State who actually engages in espionage is a spy and is not entitled to prisoner-of war status H . o "wever, members of the armed forces who engage in espionage while in uniform are not to be regarded as spies . Also, a member of an armed force resident in a territory occupied by the enemy who gathers or attempts to gather military intelligencefor his own side within that territory is not to be treated as a spy unless he acts under false pretences or in a deliberatelyclandestinemannerandiscapturedwhileactuallyengagedin espionage.
It can be deduced from the foregoing that a spy, resident in an occupied territory that has been identifiedas much but not captured at the time, does not, on subsequent capture, forfeit his prisoner-of-war status on account of his earlieractivities".
According to Professor EbereOsleke'". "any war or armed conflict involves victor and vanquished." International humanitarian law is, however, concerned with the humane treatment of the so-calledvanquished as prisonerof-war rather than as war criminals.
Legallyspeaking, the term prisoner-of-war is applicabloenly in international armed conflicts. The basicprinciplesof the 1949 Convention is for a "guardian" to be provided for foreign combatants placed hors de combat. Both the Hague Rules of 1907 and the 1949 Geneva Conventions provided for the treatment of Prisoners-of-war. A major deficiency in the Rules was that the definition of prisoners-of-war did not take cognisance of "freedom fighters"wagingwarsofnationalliberation.Thisdeficiencywascorrectedby the adoption of the Additional Protocol Iof 1977. The protocol expanded the definition of prisoners-of-war to include all.Members of armed forces of a party to the conflict as well as members of armed groups and units, which are under a command responsibleto that party. This enables liberation fighters such as guerrilla movements to be now included in the category of those to benefit from prisoners-of-war status, providedthat they comply with the rules of warfare and observeinternational humanitarian law.
Afghanistan At a Glance 22
Afghanistan is a landlockedcountry in Central Asia; Turkmrenia, Uzbekistan and Tadzhikstan bound it in the north, on the extreme northeast byChina, on the east and south byPakistan, and on the west byIran.
The officialgovernment estimate of its population by 1975 stood at 18.7 million.The UN had projected a population of 22, 038, 000 for 1980 and an annual growth rate of 2.7% (assuming a crude birth rate of 48.1 per 1000 population, a crude death rate of 21.4, and net natural increase of 26.7). Between 2 and 3 millionpersons are saidto benomadic or semi nomadic.