Thinking the Unthinkable: Has the Time Come to Offer Combatant Immunity to Non-State Actors?

Abstract

If there is one designation that has come to symbolize the complexity of characterizing the struggle against international terrorism as an armed conflict, it is “unlawful enemy combatant.” For the U.S. military and the al Qaeda and Taliban operatives it detained following September 11th, the characterization defined a group subdued enemy personnel who would be detained to prevent their return to hostilities, but who would also be denied the legal status of prisoner of war and the accordant protections of the Third Geneva Convention. Operating as a “combatant” without privilege (President Obama has substituted the term “unprivileged belligerent” for these detainees) deprives the individual of legal and moral equivalency with his privileged opponent: state actors. As a result, the rules established by international law to protect these “privileged” combatants must be denied to the unprivileged counterpart. This theory of “status” and “privilege” among combatants is a genuine article of faith. It is derived from an unassailable interpretation of the Third Geneva Convention’s prisoner of war qualification equation. Prisoner of war status, which is international law’s manifestation of the “privileged” or “lawful” combatant, is reserved exclusively for combatants who fight on behalf of a state during inter-state armed conflict, and who satisfy four widely known conditions of carrying arms openly, wearing a fixed distinctive emblem recognizable at a distance, operating under responsible command, and complying with the laws and customs of war. What is equally important in this equation, however, is that these factors apply only to combatants engaged in inter-state armed conflicts, effectively excluding from the lawful combatant status any individual fighting on behalf on an entity not affiliated with state authority. What has been absent from the avalanche of scholarship, debate, and even judicial analysis of the validity of this detention without privilege theory is a critical assessment of whether the underlying rationale for the legal dichotomy between the lawful and unlawful combatant is logically applicable to non-state transnational actors. Such an assessment must focus on not only the origins of this dichotomy, but also - and perhaps more importantly - on the ostensible effect intended by denial of lawful combatant status for non-state actors. Considering the issue through this “effects based” analytical lens raises a genuine question as to whether the denial is the most effective way to achieve these desired effects.This article will explore this question by focusing on both these proposed analytical elements. It will begin with a review of the origins of the lawful/unlawful enemy combatant dichotomy. It will then discuss the ostensible effects the United States desires to achieve by applying this dichotomy to transnational non-state actors. Ultimately, it will question whether the unthinkable – extending the opportunity to qualify for the privileged combatant’s immunity – might actually offer a greater likelihood of achieving these effects than clinging to the current lawful/unlawful combatant dichotomy.