Illegal combatant
Unlawful combatant ( English unlawful combatant , illegal combatant ) is a term used by several states to denote a person who is involved in a military conflict and who also violates martial law. The essential feature is therefore not participation in the conflict, but the violation of the rules of war. Such persons are therefore not legal combatants and therefore may not receive the status of prisoners of war .
Conceptual origin
The term was used by the United States Supreme Court in the Quirin case in 1942 :
“… The law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. "
“... the law of war differentiates between the armed forces and the peaceful population of conflicting parties and also between lawful and illegal combatants. Legitimate combatants are subject to capture and internment as prisoners of war by opposing forces. Unlawful combatants are also subject to capture and detention, but are also subject to charge and punishment by military tribunals for acts that have made their warfare unlawful. The spy who secretly passes the front lines of a conflicting party in times of war and without uniform and tries to gain militarily significant information and to pass it on to the enemy, or a combatant of the enemy who passes the front lines without uniform and secretly with the intention of war through the destruction of human life or property are well-known examples of warring persons who, according to the general opinion, do not fall under the status of prisoners of war, but are subject to charges and punishment by military tribunals as persons violating martial law. "
Use outside of the US
The United Kingdom , Australia , Israel and Canada also differentiate between legal and illegal combatants.
Application in the USA from 2001
As a result of the terrorist attacks on September 11, 2001, the US government uses the term “unlawful combatant” in a different context by subsuming other issues as well as linking other consequences to it and ultimately wants the term to be developed into a new comprehensive legal institution . The starting point is the non-application of III. Geneva Convention on the Treatment of Prisoners of War . In January 2009, around 245 people were still imprisoned as alleged illegal combatants in the Guantanamo prison camp .
The principles of the Supreme Court from the Quirin formula are not applied because the procedures that have been established so far did not deal with the violation of martial law, but with the actual act of terrorism.
criticism
American practice has been widely criticized. In favor of this new approach, the objection is raised that only a member of the armed forces of an attacking or defending country can be a combatant. In addition, US agencies refuse to view the war on terror as a bilateral conflict between states, even though they see a "war" in it. However, the relatives argument evades the critics:
- The legal consequence that someone loses all rights if they violate the law is not recognized. Rather, every legal system develops a selective and sharply defined assignment of infringement and legal consequences, including sanctions ( see, however, enemy criminal law ).
- The Bush administration goes beyond the statements of the Quirin ruling in that it does not limit itself to (military) sanctions procedures with regard to cumulative violations of martial law, but rather believes that it can infer a universal loss of fundamental rights as well as legal protection and remedies . Also, the violation of martial law in relation to the main offense, the act of terrorism, is almost insignificant and does not justify any serious deviations from ordinary criminal proceedings.
- The Supreme Court essentially invalidated this stance by ruling that those detained there could very well sue in US courts and that they had both legal and legal capacity. In the meantime, a fundamental decision has also been made on the procedural standards to be applied.
After the Bush administration's actions were found to be unconstitutional in the last decision, it created a highly controversial legal basis, the Military Commissions Act, in response . It came into force on October 17, 2006.
According to human rights organizations and the International Committee of the Red Cross , the Guantanamo prisoners are combatants who, as prisoners of war, are subject to the protection provisions of III. Geneva Convention covered. The UN observer for human rights in the fight against terrorism, Martin Scheinin, criticized the classification as enemy combatants in his 2007 report and called for them to either be brought to justice or released.
literature
- George H. Aldrich: The Taliban, al Qaeda, and the Determination of Illegal Combatants , in: Humanitäres Völkerrecht - Informationsschriften 15 (2002) pp. 202–206. PDF .
- Joseph P. Bialke: Al-Qaeda and Taliban Unlawful Combatant Detainees, Unlawful Belligerency, and the International Laws of Armed Conflict , in: Air Force Law Review 55 (2004) pp. 1-86. PDF .
- Knut Dörmann: The Legal Situation of "Unlawful / Unprivileged Combatants" , in: International Review of the Red Cross 85 (2003) pp. 45-74. PDF .
Web links
- Michael Greenberger, " Is Criminal Justice a Casualty of the Bush Administration's 'War on Terror'? " In American Bar Association's Human Right Magazine, Winter 2004
- Daniel Kanstroom: " 'Unlawful Combatants' in the United States - Drawing the Fine Line Between Law and War " in American Bar Association's Human Right Magazine, Winter 2003
- Knut Dörmann: " The legal situation of unlawful / unprivileged combatants ". Article in the International Review of the ICRC , March 2003
- People for the American Way's critical report " Undermining the Bill of Rights " with extensive legal references
- Michael Dorf: What is an "Unlawful combatant," and why it matters: The Status Of Detained Al Qaeda And Taliban Fighters Published by FindLaw January 23 2002 . Dorf is Vice Dean and Professor of Law at Columbia University.
- Christiane Wilke: Was v. Justice: Terrorism Cases, Enemy Combatants, and Political Justice in US Courts (PDF)
- The Yale Law Journal: A Small Problem of Precedent: per 18 USC § 4001 (a) and the Detention of US Citizen "Enemy Combatants" (PDF; 130 kB)
- US Supreme Court Reviews Cases on Detainees
- AI Index: AMR 51/063/2005: UNITED STATES OF AMERICA Guantanamo and beyond: The continuing pursuit of unchecked executive power document, dated 13 May 2005 , by Amnesty International on their web site.
- US DOD: Combatant Status Review Tribunals / Administrative Review Boards
- Jane Mayer: The Memo - How an internal effort to ban the abuse and torture of detainees was thwarted , The New Yorker article, posted February 20, 2006
- An Open Letter to George Bush partly on this issue
- League of Nations Non-intervention Committee ban on "volunteers" 21 February 1937 (PDF file; 393 kB)
- Read Congressional Research Service (CRS) Reports regarding Detainees
Single receipts
- ↑ Ex parte Quirin, 317 US 1 (1942)
- ↑ Guantanamo Bay - Detainees . www.globalsecurity.org. Retrieved April 10, 2009.
- ↑ FindLaw's United States Supreme Court case and opinions. Retrieved February 2, 2018 .
- ↑ Hamdan versus Rumsfeld
- ↑ "Guantanamo is cruel" - UN demands closure , Oct. 30, 2007