Combatant Status Research Articles

Assemblies of Chairs: The Politics of Spectatorship in Post-Traumatic Times

ABSTRACTWhat modalities of spectatorship and performance are emerging today, and why? How do we gather in the face of crisis—ordinary and extraordinary—and violence—traumatic and not-quite-traumatic? What might be gleaned from contemporary performance for other genres of response to crisis, whether clinical, critical, or political? To what extent are psychoanalytic theories of trauma helpful for describing modalities of historical violence in the present? This essay approaches questions such as these by turning to 3 disparate yet resonant sites of recent performance: Combatant Status Review Tribunal, pp. 002954-003064: A Public Reading by Andrea Geyer et al. (2012); Thomas Hirschhorn’s Gramsci Monument (2013); and Rashid Johnson’s production of LeRoi Jones/Amiri Baraka’s play, Dutchman, at the East Village’s Russian and Turkish Baths (2013).

Child Soldiers - Both Victims and Combatants: Is There Anything IHL Can Do?

The proliferation of child soldiers has raised a number of troubling questions for the laws of war. These children are the victims of international crimes committed by those who unlawfully enlist and deploy them. These children are also “combatants” under international law and like all combatants they lose the many protections afforded civilians. Apart from the physical and psychological harm caused to children by exposure to combat, child soldiers have also been the intentional victims of crimes perpetrated by members of the armed formation that incorporated them. Crimes specifically directed at them such as rape, sexual slavery and inhuman treatment. Some children have been summarily executed for indiscipline or attempting to escape. Yet, others have been used as disposable weapons in an emerging trend to use children as suicide bombers, sometimes remotely detonated by their adult handlers.This article examines the unique situation of child soldiers, and the several simultaneous yet inconsistent characterizations they embody. A child soldier can be at the same time: a lawful target of the enemy, an individual with the potential to commit international crimes, a victim of the international offense of child conscription and finally, often the intended victim of other acts constituting war crimes but for their unlawful conscription. This article examines the relevant laws and customs of war and questions whether International Humanitarian Law’s (IHL) rigid binary classification of actors as either combatants or civilians appropriately reflects the reality for children, the most vulnerable victims of contemporary conflicts.The article makes the argument that IHL must develop a third status in addition to the combatant/civilian distinction. A hybrid status for children unlawfully incorporated into an armed force or group. This hybrid status retains the child’s combatant status vis-a-vis belligerent forces as defined by well-established tests, yet treats them as civilians vis-a-vis members of the armed force that has unlawfully incorporated them. Perpetrators of crimes against child soldiers should not be able to strip children of the protections intended for them by committing the crime of unlawful conscription against them. The laws of war should be interpreted to deny them the ability to insulate themselves from criminal liability by virtue of their commission of another crime. There is no theoretical or conceptual barrier preventing an interpretation of IHL that affords children this hybrid status. This proposed hybrid status preserves the clarity necessary for the effective application of IHL and ensures that these children remain within the protections of international law.

Deconstitutive rhetoric: The destruction of legal personhood in the Global War on Terrorism

ABSTRACTThis essay examines a set of memoranda, speeches, and other official discourse issued during the Global War on Terrorism that transformed the legal paradigm under which the enemy was defined and authorized new norms of conduct previously prohibited by law. It argues that these texts employ “deconstitutive rhetoric,” defined as discursive action that undermines the existing legal status of those to whom it refers and produces a disarticulate, destitute subject by denying the individual access to the civic forums in which rhetorical agency may be exercised. The essay begins with an analysis of the use of deconstitutive rhetoric in the decision to legally re-define Afghanistan as a “failed state” in order to absolve the United States of treaty obligations with that nation. It then addresses the emergence of “unlawful enemy combatant status,” a new legal category not recognized under the international laws of war. The essay concludes with a discussion the Obama administration’s detention and drone strike policies, which have continued to use deconstitutive rhetoric to undermine the legal status of those captured and killed in the Global War on Terrorism.

Young People’s Response to The Response: The Impact of Political Diversity and Media Framing on Discussions of Combatant Tribunals

This article presents results of a study of the impact of political dynamics on group deliberations of issues presented in the short film The Response. We selected four groups of 18-22 year-old participants based on political views, engagement, and efficacy (liberal, conservative, and two mixed groups), and asked them to view and discuss issues presented in The Response related to the combatant status review tribunals held at Guantanamo Bay. We found the groups with mixed political views had higher quality discussions of the issues and a better understanding of the issues post-discussion – in particular the tension between national security versus individual rights and of the nature of the tribunals. We also found a significant number of conservative group members became more conservative in their views as a result of their discussion. We discuss implications for secondary and post-secondary education as well as for political polarization overall in society.

Zverev P.G. On the issue of the legal status of combatants and non-combatants

Zverev P.G. On the issue of the legal status of combatants and non-combatants

Changing The Rules of War: The Controversies Surrounding the United States’ Expanded Use of Drones

<div class="page" title="Page 1"><div class="section"><div class="layoutArea"><div class="column"> <span>Th</span><span>is work is licensed under a </span><span>Creative Commons Attribution 3.0 License</span><span>. </span> <span>The Obama administration has an opportunity, and some would say an obligation, to create a doctrine that sets guidelines for the development and deployment of unmanned aerial vehicles (UAVs), also known as drones. </span><span>Th</span><span>ere are a number of debates surrounding the use of drones, the most contentious </span>of which have been as to whether governments have legal authorization to do so, and of how combatant status is defined under current international law. In Obama’s first term, his administration worked to rollback the world’s arsenal of nuclear weapons. His efforts and vision of a world without nuclear weapons was one of the reasons why President Obama was awarded the Nobel Peace Prize—inclusive, of course, of his effortto strengthen international diplomacy. Yet, during this same period, his administration has developed and utilized revolutionary military technologies that may well become signature weapons of the 21st century. Since 9/11, there has been an alarming increase in the use of drones. </div></div></div></div>

Aerial Drone Deployment on 4 October 2010 in Mir Ali/Pakistan (Targeted Killing in Pakistan CASE)

War and armed conflict — Non-international armed conflict — Terrorism — Combatant status — Targets — Air strike from unmanned drone — Conflicts in Afghanistan and Pakistan border region — Whether separate conflicts — Status of conflict — “War on terror” — Whether Central Intelligence Agency officers controlling drone combatants — Whether persons attacked by drone combatants or civilians — Necessity and proportionalityJurisdiction — Universal jurisdiction — Passive personality principle — German national killed by United States drone strike in Pakistan — Whether killing within jurisdiction of German authorities — The law of Germany

The International Humanitarian Law Notion of Direct Participation in Hostilities – A Review of The ICRC Interpretive Guide and Subsequent Debate

The phrase participation in has a very specific meaning in international humanitarian law (IHL). Those individuals who are clothed with combatant status are authorised to participate directly in hostilities without fear of prosecution, while civilians lose their civilian immunity against direct targeting whilst they participate directly in hostilities. Any civilian activity which amounts to participation in temporarily suspends their presumptive civilian protection and exposes them to both direct targeting as a legitimate military target and prosecution for their unauthorised participation in hostilities. Since existing treaty sources of IHL do not provide a definition of what activities amount to participation in hostilities, the ICRC in 2009 released an Interpretive Guide on the Notion of Direct Participation in Hostilities - in the hope of providing a neutral, impartial and balanced interpretation of the longstanding IHL principle of direct participation in hostilities. While not without criticism, the Interpretive Guide aims to respect the customary IHL distinction between participation in and mere involvement in the general war effort. The Guide proposes a three-pronged test which establishes a threshold of harm, and requires direct causation together with a belligerent nexus. Collectively, these criteria limit overly-broad targeting policies, while distinguishing occasions of legitimate military targeting from common, criminal activities. Together with these three criteria, the Guide introduces the notion of the revolving door of protection, together with the concept of a continuous combat function. Both these new concepts have been the subject of criticism, as too the idea that a presumption of non-participation status should apply in cases of doubt. Nevertheless nothing indicates that the ICRC's interpretive guidance is substantively inaccurate, unbalanced, or otherwise inappropriate, or that its recommendations cannot be realistically translated into operational practice[1] in a way which will ensure that the fundamental principles of distinction and civilian immunity upon which all of IHL is built are observed.

The Notion of Combatancy in Cyber Warfare

The class of combatant constitutes one of the most important instrumentalities of the law of war. Combatant status resolves critical and enduring legal questions such as immunity from prosecution for warlike acts, susceptibility to intentional targeting, and, in part, treatment upon capture. Since the late nineteenth century, codifications of the international law of war have included criteria for combatant status keyed to ensuring desirable battlefield conduct and, to the extent possible, humanity in war. This paper revisits the author's prior work on the topic of combatancy in cyber warfare. Building on recent public revelations concerning state capacity for offensive cyber attacks, as well as new developments in computer network attack, this paper highlights logical and normative shortcomings in current understandings of combatant status in cyberspace. In place of rote reliance on existing criteria intended for the kinetic battlefield, this paper proposes reliance on State affiliation as the sole criterion for evaluating combatant status in cyber warfare between States. An admitted interpretive gloss on current criteria, the proposed framework offers a workable and realistic reconciliation of humanitarian goals and emerging State practice in cyber warfare.

Flying under the radar: A study of public attitudes towards unmanned aerial vehicles

Unmanned aerial vehicles, also known as drones, have become a central feature of American foreign policy, with over 400 strikes in Pakistan, Somalia, and Yemen in the last decade. Despite criticisms that have arisen about ethics and legality of this policy, polls have registered high levels of public support for drone strikes. This article shows that the standard formulation of poll questions takes as a given the government’s controversial claims about combatant status and source of legal authorization. I conduct a survey experiment that evaluates how varying the terms of the debate –in particular whether the strikes are compatible with international humanitarian law (IHL) and have legal authorization – affects public support for the drone policy. Treatments that incorporated contested assumptions about IHL meaningfully decreased public support while the public was less moved by questions about domestic or international legal authorization.

The Disputation of Ashraf Salim

In Kafka's fable ‘Before the Law’ the appeal to infinite regress, to higher and deeper authority, creates the illusion of an interiority of law that someone or something is within the hallowed and hollowed abode of the law even if this indwelling is merely the performance of withholding law from others. The Combatant Status Review Tribunals at Guantanamo (2004–2005) similarly inscribed a territory, a space and a speculum where the sovereignty of the state was performed as the event of withholding of law. In the recesses of the security state, in the security state as an assemblage of recesses, the law itself is securitized and subjected to an extraordinary rendition and consigned to a black site from which all other black sites are authored and transmitted.

Assassination: Targeting Nuclear Scientists

Since 2007, five scientists involved in Iran’s nuclear program have been killed under mysterious circumstances. This is not the first time that nuclear scientists have come under direct attack. Scientists are legally civilians. Like the rest of us, they are protected by laws prohibiting murder and perfidious killing, and enjoy civilian immunity during wartime. Moreover, powerful moral arguments oppose assassination policies specifically. Nevertheless, contemporary theories of just war allow for the partial extension of combatant status to civilians who are either threatening or responsible for unjust threats. Weapons manufacturers, their factories and employees, are accorded less than absolute protection within just war theory, and even under international law. Dramatic events compel us to think through these issues of political violence in a principled manner, whatever our particular views on the Iranian case may be. The various moral arguments against assassination on the one hand and the complex status of munitions workers on the other suggest that scientists involved in weapons manufacturing may in some cases be morally liable to direct harm, as well as being legally liable to proportionate collateral damage.

The Moral Status of Combatants during Military Humanitarian Intervention

Recent debates in just war theory have been concerned with the status of combatants during war. Unfortunately, however, the debate has, up to now, focused on self-defensive wars. The present article changes the focus slightly by exploring the status of combatants during military humanitarian intervention (MHI). It begins by arguing that MHI poses a number of challenges to our thinking about the status of combatants. To solve these it draws on Jeff McMahan's theory of combatant liability. On this basis, the article contends that, first, combatants engaged in atrocities lack the same set of rights and liberties held by intervening combatants. Second, and more controversially, drawing on McMahan's theory as well as the notion of complicity, it suggests that the same applies to those combatants who do not perpetrate atrocities but are merely ordered to defend the target state against the intervening state.

Prisoners of War and Civilian Internees of the Japanese in British Asia: The Similarities and Contrasts of Experience

The similarities and differences between the experiences of prisoners of war and civilian internees of the Japanese have largely been overlooked by studies of Japanese-held prisoners. This article aims to provide this critical comparative perspective by examining the experiences of prisoners of war and civilians in four key theatres of the war in British Asia: Hong Kong, Malaya, Singapore and Borneo. It draws largely, however, on the intriguing case study of the Lintang Camp in Borneo (Sarawak) where prisoners of war were imprisoned alongside civilian internees during the war. It argues that there were overarching similarities and constraints to both sets of experiences, but key differences in Japanese wartime policies and a variety of other factors such as combatant status, class, rank, active agency, leadership, and gender also contributed to how captivity was experienced during this tumultuous period.

Guantanamo, Rasul and the Twilight of Law

In Rasul v. Bush, the Supreme Court held that U.S. district courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. In this paper, I explore what has happened since the Rasul decision: most notably, the introduction of combatant status review tribunals as a response to Rasul and the challenges that have been filed thereto and adjudicated in the federal courts (Khalid, In re Guantanamo Detainee Cases); the charges brought against certain detainees by military commissions and challenges to these commissions filed in the federal district courts (e.g. Hamdan v. Rumsfeld); and the disaggregating of conventional and customary international law from the conduct of the war on terror. I argue that Guantanamo stands as a metaphor for a broader view that posits law as impairing instead of promoting national security interests. The resultant twilight of law extends well beyond Guantanamo to include detentions in Iraq and Afghanistan; renditions; attempts to minimize judicial review of decisions of the executive branch; and bold reinterpretations of the Geneva Conventions and Convention Against Torture. The paper ends by proposing a different model that, instead of viewing the crimping of law as necessary to promote national security interests, posits a synergy between respect for law and protection of national security.

The ethics of war and peace: an introduction

Introduction 1. Self-Defence 2. War and Self-Defence 3. The Conditions of Jus ad Bellum 4. Just Wars? 5. The Conditions of Jus in Bello 6. The Moral Status of Combatants 7. The Principle of Non-Combatant Immunity 8. The Nature of Terrorism 9. Terrorists, Torture and Just War Theory 10. Jus Post Bellum. Index

Executive Order 13567: Executive Branch Policy Meets International Law in the Evolution of the Domestic Law of Detention

This paper considers the March, 2011 issuance of Executive Order 13567: Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force. As its title suggests, the Order establishes a system of periodic review for detainees held at Guantanamo Bay, but the release of the Order suggests much more than merely the adoption of new procedures for reviewing detention determinations. In a “Fact Sheet” issued with the Order, the Obama administration suggested some concrete changes to how the U.S. views the international law of detention, specifically with regard to Additional Protocols I and II of the Geneva Conventions. Those changes, when combined with the content of the Order itself, may signal an even more profound shift in the role of international law in the shaping of the domestic law of detention.The paper proceeds by describing the Order in detail and comparing the procedures adopted in the Order with those that proceeded it, namely the Combatant Status Review Tribunals and the Administrative Review Boards previously used for Guantanamo Bay detainees. The paper next analyzes the the Order’s procedures under Article 75 of Additional Protocol I and Articles 4-6 of Additional Protocol II, as suggested by the Fact Sheet. Finally, the paper considers the broader questions raised by the Order and Fact Sheet’s stated approach to the international law of detention. By recognizing an increased role for Additional Protocols I and II, the Order and Fact Sheet go some distance toward providing an avenue to the incorporation of international human rights norms into the U.S. domestic law of detention, an approach that sharply diverges with previous U.S. positions on the law of armed conflict.

Combatants, not bandits: the status of rebels in Islamic law

AbstractThe Islamic law on rebellion offers a comprehensive code for regulating the conduct of hostilities in non-international armed conflicts and thus it can be used as a model for improving the contemporary international legal regime. It not only provides an objective criterion for ascertaining existence of armed conflict but also recognizes the combatant status for rebels and the necessary corollaries of their de facto authority in the territory under their control. Thus it helps reduce the sufferings of civilians and ordinary citizens during rebellion and civil wars. At the same time, Islamic law asserts that the territory under the de facto control of the rebels is de jure part of the parent state. It therefore answers the worries of those who fear that the grant of combatant status to rebels might give legitimacy to their struggle.

CHILD SOLDIERS AND KILLING IN SELF-DEFENCE: CHALLENGING THE ‘MORAL VIEW’ ON KILLING IN WAR

According to the so-called Moral View on justified killing in war, mere status as a soldier is not a sufficient condition for a combatant to lose his immunity against not being killed in war. While the traditional theory of war maintains that all soldiers are morally equally liable to be killed, the ‘Moral View’ stresses that it is moral culpability, not a mere combatant status, that makes one eligible to be killed and hence one must differentiate between morally innocent and non-innocent combatants – from which only the latter category are justifiably killed in war, even in self-defence. In this paper I will challenge the Moral View and its plausibility to the hard cases and will explore if, according to this view, child soldiers are eligible targets in war. Intuitively, children as morally innocent persons should belong to the category of innocent combatants. And yet, an armed child may be as brutal a soldier as his adult colleague. By using the example of child soldiers this paper aims to show certain difficulties of the Moral View compared to the traditional moral symmetry thesis on combatant equality.

Beyond Habeas: Stripping the Federal Courts of Jurisdiction to Hear Alien-Detainee Treatment Claims

By enacting 28 U.S.C. 2241(e)(1) Congress stripped the judiciary of jurisdiction to hear habeas claims of alien-detainees. Boumediene held that this statute represented an unconstitutional commandeering of judicial power to provide habeas and that the judiciary had the jurisdictional authority to review the cause of detention as well as the Executive’s power to detain.One of the major questions left open in the wake of the Boumediene decision concerns 28 U.S.C. § 2441(e)(2), another jurisdiction-stripping provision, which prohibits courts from adjudicating on alien-detainee claims involving detention, transfer, treatment, trial, or conditions of confinement. Section 2441(e)(2) does provide for some process in the form of Combatant Status Review Tribunal (CSRT) hearings. The DC circuit exercises exclusive jurisdiction over appeals from the CSRTs. The scope of the DC circuit’s review, however, is limited to determining if the CSRT correctly applied its own procedures, not the actual claims of the detainees. Thus, no Article III court has jurisdiction to adjudicate on the merits of an alien-detainee’s claims. After Boumediene, § 2441(e)(2) might seem to present an easy case. Congress enacted a statute that strips jurisdiction in much the same way as the one struck down in Boumediene. Thus, on separation of powers grounds, the Court should find that any statute stripping all the courts of jurisdiction violates the principles set out in Bouemediene and represents an unconstitutional usurpation of judicial power. Unfortunately, there is a strong argument that jurisdiction to hear a claim of habeas corpus is fundamentally different than jurisdiction to hear other claims, particularly for separation of powers concerns. The Court in Boumediene noted such a difference and attempted to limit its holding to the habeas context. Moreover, the lower courts have interpreted the Bouemediene holding to be limited to habeas and have refused to extend the holding to § 2441(e)(2). Thus, rather than assume that Bouemediene provides a framework that can now fit all future claims, this note discusses the unconstitutionality of § 2441(e)(2) independently of the Court’s holding in Boumediene. This requires revisiting the debate surrounding the Madisonian Compromise and the Exceptions Clause of Article III in formulating the argument that § 2441(e)(2) represents an unconstitutional appropriation of judicial power.