an individual who violates the law by engaging in combat; an individual who is involved in but not authorized to take part in hostilities; also called illegal combatant, unprivileged combatant. An unlawful combatant is someone who commits belligerent acts, but does not qualify under the Geneva Convention as a prisoner of war. The Geneva Conventions do not recognize any lawful status for combatants in conflicts not involving two or more nation states. A state in such a conflict is legally only bound to observe Article 3 of the Geneva Conventions, and may ignore all the other Articles.
The most significant point that should be retrieved from this definition is that in the Geneva conventions, unlawful combatants are not considered prisoners of wars but belligerents. In my opinion the reason terrorists are not and cannot be considered prisoners of war is that they are not recognized as legitimate combatants. There are many reasons why they are not recognized, the first is that terrorists are not viewed as lawful combatants. If terrorist were lawful combatants then violent crimes that they commit would be given immunity as long as the act complied with lawful war acts. Another reason terrorist can not be prisoners of war is that they do not comply with the fourth Geneva convention, which means combatants must have distinctive markings and bear open arms. Terrorists are well known for concealing weapons such as explosives, guns and knives and furthermore terrorists try to blend into society and for the majority do not show visible markings.
Legal application of law
Terrorism is proving to be major challenge for anti-terrorist forces especially since the Geneva conventions and the laws of war set out strict guidelines for lawful combatants. Governments around the globe have been fighting terrorism for many decades now, but no government can has fought more relentlessly than the United State. The dilemma that is being faced now is, how can the United States and its allies combat terrorism on an equal playing field if they are still mainly abiding be the rules of war? For example the United States army wears uniforms; this is seen as a distinctive marking and is in compliance with the rules of war. The extended list of law abiding war guidelines is embedded in most international anti-terrorist military operants. In most cases this should be viewed as a good thing but with respect to terrorism this type of compliance acts as a draw back to concrete anti-terrorist operations. Terrorist as a whole do not follow rules of war, therefore monitoring and apprehending suspects is extremely difficult for anti-terrorist forces since they comply to internationally agreed upon rules. The laws of war really in my view cannot be formally applicable to anti-terrorist forces because most of the time not all anti-terrorist military activity nor terrorist activity embody what is seen as conflict between states. An example of this situation is when a terrorist group causes death or harm to American/Canadian troops in Afghanistan, this indeed is a conflict of arms but the terrorist groups are not recognized as state while the anti- terrorist forces most likely are. Another reason why the rules of law cannot be clearly and adequately applied to anti-terrorist forces is because terrorist do not clearly mark or distinguish them self as military personal they are usually blend in like civilians. This creates a challenge for anti-terrorist forces because terrorist attacks are aimed at public venues and target civilians. These are just a few of the issues facing governments when they try and apply the laws of war to civil wars and to anti-terrorist forces. It is wise to note that although the application of laws may be difficult in anti-terrorist operations, it is not irrelevant. With the war on terrorist at hand it is only fitting that there have been some issues with counter-terrorist forces violating basic legal boundaries. A very controversial example of this is the American extraordinary rendition. The extraordinary rendition program has multiple offshore/private prisons, the well known ones are located in Jordan, Iraq, Egypt, Diego Garcia, Afghanistan and Guantánamo.
Beginning in the early 1990s and continuing to this day, the Central Intelligence Agency, together with other U.S. government agencies, has utilized an intelligence-gathering program involving the transfer of foreign nationals suspected of involvement in terrorism to detention and interrogation in countries where -- in the CIA's view -- federal and international legal safeguards do not apply. Suspects are detained and interrogated either by U.S. personnel at U.S.-run detention facilities outside U.S. sovereign territory or, alternatively, are handed over to the custody of foreign agents for interrogation. In both instances, interrogation methods are employed that do not comport with federal and internationally recognized standards. This program is commonly known as "extraordinary rendition."… The Department of Justice's arguments notwithstanding, the extraordinary rendition program is illegal. It is clearly prohibited by the United Nations Convention against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment.
The last portion of this quote really answers the question, laws of war cannot be applicable to anti-terrorist forces because they will discover alternative means that are morally wrong (rendition) and make them legitimate. The passing of such acts/legislation on the behalf of the United States government has brought mixed feelings and responses from the international community. Some states believe that in order to properly combat terrorism rules and guidelines must be shift or bent in order to efficiently combat the issue. Others state that breaking or bending the laws of war place anti-terrorist forces in the same category as the belligerents they seek to apprehend. There is no unity regarding this issue of whether rules of law can formally be applicable to anti-terrorist military operations. The main reason I believe rules of law cannot be formally applied to anti-terrorist forces is because terrorism is not a formally recognized as a legitimate or formal means of combat or rebellion. A good example of this is comes from the Canadian anti-terrorist act and the USA patriot act when it is stated that terrorist negotiations are unacceptable because they are not recognized as a legitimate force/combatant. The main issue governments and policy makers are trying to avoid is the torture and mistreatment of individuals captured who are suspected of terrorism.
Alternate measures and powers
Most terrorist operation are designed to be executed with an element of surprise, therefore anti-terrorist forces are faced with the issue of whether or not they should conform and act in reaction to these attacks. Rules of international armed conflict are set and are to be abided by those who wish to classify themselves as lawful combatants. Unfortunately terrorist activity calls for a change in the rules of war; changes that will allow for a more reaction based response form anti-terrorist forces as opposed to a guideline based approach. September 9/11 is a prime example of how the United States followed protocol by not immediately retaliating physically against terrorist. After 9/11 the United States along with other allies went through a building process by assessing security, fixing damaged property and raising the level of national security. All of these measures are excellent for fighting a “legitimate” war, but terrorism can is not legitimate, doesn’t follow laws and cannot be easily detected. What I am trying to say is that all of these text book measures are not sufficient to address such a spontaneous occurrence. For this reason counter terrorist forces are seeking to be allowed more leniency and judgment when responding to current terrorist threats or actions. Many individuals and government officials are against giving more powers to anti-terrorist forces because they fear that there will be an abuse of power, which could result in civilian harassment and casualties since terrorist blend in with civilians. A strong opposition statement was made by Richard Myers who is the former general of the United States air force which speaks for those who oppose giving more powers to anti-terrorist forces.
The last thing we want are any civilian casualties. So we plan every military target with great care. We try to match the weapon to the target and the goal is, one, to destroy the target, and two, is to prevent any what we call 'collateral damage' or damage to civilian structures or civilian population.
Governments who support legislation adaptation towards spontaneous terrorist activity have found was to not only present their retaliation as just but have done so by manipulating the laws of war. A prime example of this is the Israeli attack on Lebanon in 1982. This issue arose because Israel believed that Lebanon was harboring terrorists. In response to this the Lebanese government claimed that they could not control or monitor these terrorist actions. With this exchange Israel stated that if terrorist transactions and activities were not controlled in Lebanon that they would face counter measures. This is seen as legitimate because Lebanon’s inability to effectively contain terrorism in their own state is immediately threatening the well being of their neighboring country Israel. The main inhabitants that were effected in this ordeal were Shatila and Sabra these were refugee camps located outside Beirut, this occurred in September 1982. In my opinion empirical research and knowledge such as this should be adequate enough to inform anti-terrorist operant’s that more power/leeway to act in a spontaneous and retaliating manner cannot be given. I say this because even though at times terrorist situations may call for these types of measures, by conducting operation in this manner counter terrorist forces would be conforming to the acts of the belligerents and unlawful combatants that they are trying to eliminate.
Conclusion
Terrorism has risen infamously to the top of government, media and civilian attention. Its methods of operations have proven not to conform to any accepted international laws of conflict. But what they have proven to accomplish is cause moral, legal and ethical dilemmas and decisions to be made by those who counter terrorism “legitimately”. The unfortunate reality is that governments and anti-terrorist operant’s must now choose between abiding by set laws or interpret, bend and creating laws that better suit their needs in fight against international armed conflict and terrorism. Whatever the decision may be, we can be sure of one thing and that is it will not be a unanimous decision.
Bibliography
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International Armed Conflict
Michael Ubong Akpan
Trevor Purvis
100661643
April 7th 2008
The American Journal of International Law, Vol. 92, No. 2. (Apr., 1998), pp. 213-231.
The American Journal of International Law, Vol. 92, No. 2. (Apr., 1998), pp. 213-231.
CALLEN, JASON, "Unlawful Combatants and the Geneva Conventions", in : Virginia Journal of International Law, 44 (2004), no. 4, pp. 1025-1072.
CALLEN, JASON, "Unlawful Combatants and the Geneva Conventions", in : Virginia Journal of International Law, 44 (2004), no. 4, pp. 1025-1072.
CALLEN, JASON, "Unlawful Combatants and the Geneva Conventions", in : Virginia Journal of International Law, 44 (2004), no. 4, pp. 1025-1072.
GANDHI, M., "Common article 3 of Geneva Conventions, 1949 in the era of International Criminal Tribunals", in : ISIL year book of international humanitarian and refugee law, 1 (2001), pp. 207-218.
Etzioni, Amitai. How Patriotic is the Patriot Act?: Freedom versus Security in the Age of Terrorism. New York: Routledge, 2004.
Boister, Neil. "The Exclusion of Treaty Crimes from the Jurisdiction of Proposed International Criminal Court: Law, Pragmatism, Politics,"(1998) 3 journal of armed conflict law 27.
Vöneky, Silja. "The Fight against Terrorism and the Rules of International Law ." German Law Journal 8(2007): 14.
HASSOUNA, HUSSEIN A., "The enforcement of the Fourth Geneva Convention in the occupied Palestinian teritory, including Jerusalem", in : ILSA Journal of International & Comparative Law, 7 (2001), no. 2, pp. 461-468.
Vöneky, Silja. "The Fight against Terrorism and the Rules of International Law ." German Law Journal 8(2007): 14.
"Fact Sheet: Extraordinary Rendition ." American civil liberties union 12 May 2006 1. 12 Mar 2008 <http://www.aclu.org/safefree/extraordinaryrendition/22203res20051206.html>.
"Fact Sheet: Extraordinary Rendition ." American civil liberties union 12 May 2006 1. 12 Mar 2008 <http://www.aclu.org/safefree/extraordinaryrendition/22203res20051206.html>.
Boister, Neil. "The Exclusion of Treaty Crimes from the Jurisdiction of Proposed International Criminal Court: Law, Pragmatism, Politics,"(1998) 3 journal of armed conflict law 27.
Etzioni, Amitai. How Patriotic is the Patriot Act?: Freedom versus Security in the Age of Terrorism. New York: Routledge, 2004.
Etzioni, Amitai. How Patriotic is the Patriot Act?: Freedom versus Security in the Age of Terrorism. New York: Routledge, 2004.
Richard Myers, interview with This Week on ABC TV, 21 October 2001, .
Christopher, John B. Lebanon: Yesterday and Today. New
York: Holt, Rinehart, and Winston, 1966.
Christopher, John B. Lebanon: Yesterday and Today. New
York: Holt, Rinehart, and Winston, 1966.