The United States, Israel, and Unlawful Combatants

Abstract

This essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. The proper categorization can have significant implications for the nation’s authority under both international and domestic law to subject members of a terrorist organization to military targeting and detention. As a result of judicial decisions, Israel ostensibly follows a two category approach, pursuant to which anyone who is not a lawful combatant, including a member of a terrorist organization, is a civilian. The United States, by contrast, currently follows a three category approach, whereby members of a terrorist organization can be considered “unlawful combatants” and thus treated as legally distinct from civilians. Although the two category approach may seem at first glance to be the most protective for civil liberties, it is not clear that this is the case. If a conflict with a terrorist organization is pushed into the civilian category, it is very likely that this category will be stretched in order to accommodate the security needs of the nation. The net result may be a reduction in protection for true non-combatants. While the three category approach is less anchored in existing treaties than the two category approach, it allows for a more realistic description of how members of a terrorist organization operate. Moreover, depending on how it is defined, the third category could contain significant substantive and procedural protections that are similar to those available under the two category approach.