The Customary International Law of War and Combatant Status: Does the Current Executive Branch Policy Determination on Unlawful Combatant Status for Terrorists Run Afoul of International Law, or Is It Just Poor Public Relations?

Josh Kastenberg, The Customary International Law of War and Combatant Status: Does the Current Executive Branch Policy Determination on Unlawful Combatant Status for Terrorists Run Afoul of International Law, or Is It Just Poor Public Relations?, 39 Gonz. L. Rev. 495 (2004).

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On September 11, 2001, more than 3,000 citizens, residents, and visitors in the United States were killed by the actions of an Islamic-based terrorist organization. More than any event since World War II, this act convulsed traditional views on individual rights, both under international and domestic law. As a result, the executive’s authority to determine combatant status was scrutinized by the legal community, civil rights groups, and international interests. Indeed, law reviews published a virtual plethora of articles criticizing both presidential authority and the military commission scheme. Some of this criticism stemmed from a lack of understanding of the sources of law for determining combatant status. The law of war regarding combatant status determinations is largely premised on traditional interstate warfare norms. Problematic to combating terrorism is that often, the participants are stateless persons who owe their allegiance to a belief rather than a government. Additionally, terrorist groups often employ universally condemned methods of warfare, such as the specific targeting of civilians. This is particularly true in the case of Islamic or other religious-based terrorist organizations. Yet, membership in extremist organizations is also regularly entangled with state sponsorship. The relationship between al-Qaeda and the former Taliban government in Afghanistan illustrates a working relationship between the state and a group of individuals whose core belief system included the killing of United States citizens. This belief system was embodied in a religious directive or fatwa.

This paper reviews the domestic and international law basis for the executive authority to determine combatant status, and analyzes the legality of contemporary practice. It also accepts, as a definition for unlawful combatants: “persons violating the traditional laws and customs of war.” Unlawful combatants do not meet the traditional captured combatant (prisoner of war) protections embodied in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter Geneva Convention III)…. Read More

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