In a press conference on September 8, 2002, nearly a year after the United States began deploying troops to Afghanistan, Secretary of Defence Donald H. Rumsfeld asserted that the Geneva Conventions did “not apply to the conflict with Al Qaeda, whether in Afghanistan or elsewhere.”1 By presidential determination, the members of this terror organization who had so flagrantly “demonstrated contempt for the principles of the Geneva Convention[s]” were held to fall outside of its protections. As terrorists, they were recognized as neither combatants nor as civilians, but occupied instead a vague and ill-defined third category to which no legal protections under international humanitarian law (IHL) were afforded, that of “unprivileged belligerents.”2
This designation highlights the inherent difficulty in properly defining the international legal status of terrorists who, by their very nature, seem to defy definition: non-state actors executing, through clandestine activity, acts of terror at home and abroad, with no clearly discernible group organization, no recognizable command structure, and no regard for the laws of war. Insofar as Al Qaeda believed itself above and beyond both international and domestic law, it is unsurprising that the Bush Administration deemed its members unworthy of receiving its protections. It was, however, wrong in doing so. As the International Criminal Tribunal for the Former Yugoslavia (ICTY) highlighted in the Delalic case, “[E]very person in enemy hands must have some status under international law.”3 This extends even to terrorists, who, though acting outside the law, nonetheless fall under the law—both its judgements and its protections. Although the precise legal status of terrorists under IHL must be determined on a case-by-case basis, both international humanitarian law and human rights law afford them protections in all cases.
Article 2 common to the Geneva Conventions defines the applicability of the provisions which follow, specifying that the Conventions “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.”4 Thus, to determine the applicability of IHL to conflicts with terror groups (which are never cases of “declared war”), the first requisite consideration is whether they can be considered instances of “armed conflict.” An armed conflict does not materialize from a single use of force, but is defined by “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”5 Armed conflict thus requires both a certain intensity and duration of violence, and the existence of two or more clearly defined belligerent parties. To fall under the provisions of the Geneva Conventions, an armed conflict must furthermore be between two or more state-parties. The main provisions of the Conventions apply, therefore, to armed conflicts which are strictly international in character.
In light of such definitions, conflicts between U.S. forces and Al Qaeda or similarly acting terrorist groups cannot be considered armed conflicts. This is for two reasons. First, the acts of terror for which Al Qaeda claims responsibility do not involve “protracted armed violence.”7 Terrorism is almost invariably marked by one-off acts of violence which, although often extreme (such as the September 11 attacks on the U.S., or the 2005 bombings in London), are not sustained for an extended duration of time. In this way, the actions of Al Qaeda may be differentiated from those of the Taliban. Emerging in response to countrywide anarchy wreaked by mujahideen warlords, the violent advance of the Taliban was systematic and deliberately aimed at establishing de facto control in Afghanistan.8 For the decade between 2001-2021, the war between U.S.-led forces and the Taliban was perpetual and ongoing, involving two clearly defined belligerent parties: the legal armed forces of an internationally recognized state on the one hand, and the organized armed forces on the other. Thus, it may be persuasively argued that the Afghan conflict against the Taliban could indeed be considered an armed conflict under IHL, although Al Qaeda-led terrorism could not.
Second, the Geneva Conventions specifically apply to armed conflicts that “arise between two or more of the High Contracting Parties.”9 Although Afghanistan and the U.S. are parties to the Geneva Conventions, Al Qaeda is not—nor it is associated with or acting under the consent of any domestic governmental authority. Indeed, as the International Committee of the Red Cross (ICRC) points out, “It is difficult to see how a loosely connected, clandestine network of cells… could qualify as a ‘party’ to the conflict” at all.10 Terrorism, when perpetrated by non-state actors without the the support of a domestic authority, cannot properly be considered an international armed conflict. Although terror attacks are carried out “internationally,” counterterrorism falls largely under the mandate of domestic law enforcement agencies. For this reason, terrorism may be better understood as transnational than as international. This is an intentional facet of IHL: “[S]tates have never been willing to accord armed groups the privileges enjoyed by members of regular armies. To say that a global international war is being waged against groups such as Al-Qaeda would mean that, under the law of war, their followers should be considered to have the same rights and obligations as members of regular armed forces.”11 The absence of a nexus with a domestic government is, therefore, central to the legal status of terrorists, as it precludes the designation of terrorists as “combatants” under Geneva Conventions, since the Conventions apply specifically to armed conflicts which are international in character.
Since terrorism and the “war” on terror are best considered non-international armed conflicts, terrorists belonging to groups such as Al Qaeda cannot rightly be considered “combatants” under IHL. Nor, consequently, are they afforded rights as prisoners-of-war which are granted to regular armed forces under the Third Convention. As per the ICRC, “Combatant status, which entails the right to participate directly in hostilities, and prisoner-of-war status, do not exist in non-international armed conflicts.”12 This does not imply, however, that terrorists exist in a legal limbo beyond the protection of international humanitarian and human rights law. In the Delalic case, the ICTY maintained that “every person in enemy hands must have some status under international law: he is either a prisoner of war… a civilian… [or] a member of the medical personnel of the armed forces… There is no intermediate status; nobody in enemy hands can be outside the law.”13 Although the U.S. has previously held that the Geneva Conventions applied to neither the conflict with the Taliban nor with Al Qaeda, suggesting instead that their members occupied a third category—that of unlawful combatants—was not under any legal protection, this perspective is incorrect.14
Under the 1907 Hague Convention and the Geneva Conventions, only two statuses exist in IHL: combatants and civilians. Uses of force by and against terror organizations, especially groups like Al Qaeda which consist of fragmented cells that act only sporadically, may be designated on a case-by-case basis as either a non-international armed conflict or a domestic incident. Where such conflicts rise to the level of a non-international armed conflict, terrorists must, insofar as they cannot be deemed “combatants”, be considered civilians. IHL does not prohibit civilians from taking up arms in an armed conflict. For the duration of their active participation in hostilities, however, such civilians are divested of their immunity from attack and may be treated as legitimate military targets. Furthermore, unlike legal combatants, they are not guaranteed protections under the First or Third Geneva Conventions. In particular, their “lack of prisoner-of-war status implies that such persons are, among other things, not protected from prosecution under the applicable domestic laws upon capture.”15 Prisoners-of-war are protected against criminal liability for legitimate armed conduct; civilians are not. Even so, they are nonetheless protected under Article 3 common to all Geneva Conventions, which provides for the humane treatment of all parties, and prohibits violence, the taking of hostages, outrages of dignity, and extra-judicial executions. The ICRC describes Article 3 as “a baseline from which no departure, under any circumstances, is allowed. It applies to the treatment of all persons in enemy hands, regardless of how they may be legally or politically classified or in whose custody they may be held.”16 Even terrorists must fall under Article 3 protections. Where acts of terrorism do not rise to the level of a non-international armed conflict and are merely domestic incidences, an informal designation which applies to the preponderance of, if not all, Al Qaeda terrorist attacks, they do not fall under specific IHL protections. In such cases, terrorists must instead be granted such rights and protections as are constitutionally afforded to criminal non-citizens under domestic law, in addition to any non-derogable human rights afforded to all human beings.
It is tempting, when faced with a crime as monstrously unnecessary and indiscriminate as terrorism, to interpret the law in whatever manner best allows vengeance to be poured out upon the heads of those responsible. Thus, the Bush Administration determined that the members of Al Qaeda and the Taliban were neither combatants nor civilians, occupying some nebulous legal middle-ground where they possessed no protections under the Geneva Conventions. The law, however, exists as much to punish crime as it does to check retribution. Abiding by the law is not a prerequisite to being protected by and receiving justice under it. Indeed, precisely the opposite may be said. The “full weight of the law” is most heavily shouldered by those who breach it. Although the international legal status of terrorists must, as demonstrated above, be determined on a case-by-case basis, it remains a fact that terrorists do, in fact, possess a legal status under IHL. As such, they are entitled to no fewer rights and protections than any other individual in an armed conflict (non-international or otherwise).
Terrorists are additionally worthy of basic human rights protections by virtue of their intrinsic humanness—a fact which is as fundamentally uncomfortable as it is legally and morally undeniable. Yet, it is precisely within this tension that justice exists, bridging the gap between our inherent need for retribution and a criminal’s inherent dignity as a human. Retribution without regard for human dignity will devolve into vengeance, and human dignity without the check of retribution will devolve into lawlessness. International humanitarian law and human rights law inform that tension, acknowledging the rights to which all humans are entitled even while stipulating the punishments to which they may be subject. That the law extends to even terrorists is a humbling reminder that justice must be upheld, even though it can never be earned.
Footnotes
1 U.S. Department of Defence News Briefing, Secretary Rumsfeld and Gen. Myers, Washington, 8 February 2002, https://casebook.icrc.org/case-study/united-states-status-and-treatment-detainees-held-guantanamo-naval-base.
2 Alexander Orakhelashvili, Akehurt’s Modern Introduction to International Law, 8th ed. (New York: Routledge, 2018), 487.
3 Delalic, Trial Chamber, 16 November 1998, para. 271, quoted in Alexander Orakhelashvili, Akehurt’s Modern Introduction to International Law, 8th ed. (New York: Routledge, 2018), 488.
4 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287, Art. 2.
5 Tadic, IT-94-1 (Appeal Chamber), Interlocutory Appeal on Jurisdiction 2 October 1995, para. 70, quoted in Alexander Orakhelashvili, Akehurt’s Modern Introduction to International Law, 8th ed. (New York: Routledge, 2018), 475.
6 Geneva Conventions, Art 2.
7 Tadic, quoted in Orakhelashvili, International Law, 475.
8 Josh Schott, “The Differences Between the Taliban and Al-Qaeda,” 14 March 2012, https://www.e-ir.info/2012/11/17/the-differences-between-the-taliban-and-al-qaeda/.
9 Geneva Conventions, Art 2.
10 “How does the law protect in war?” International Committee of the Red Cross, 28th International Conference of the Red Cross and Red Crescent, 2-6 December 2003: 14.
11 Ibid., 27.
12 Ibid., 32.
13 Delalic, quoted in Orakhelashvili, International Law, 488.
14 U.S. Department of Defence News Briefing, Secretary Rumsfeld and Gen. Myers, Washington, 8 February 2002, https://casebook.icrc.org/case-study/united-states-status-and-treatment-detainees-held-guantanamo-naval-base.
15 ICRC, “International Humanitarian Law,” 4.
16 Ibid., 37.