Illegal combatant

from Wikipedia, the free encyclopedia
Prisoners at Camp X-Ray at Guantanamo Bay Naval Base , January 2002

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. "

- United States Supreme Court

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

This article or section needs to be revised: Reduce the number significantly, if necessary rebuild as individual references and translate the English dates.
Please help to improve it and then remove this marking.

Single receipts

  1. ↑ Ex parte Quirin, 317 US 1 (1942)
  2. ↑ Guantanamo Bay - Detainees . www.globalsecurity.org. Retrieved April 10, 2009.
  3. ↑ FindLaw's United States Supreme Court case and opinions. Retrieved February 2, 2018 .
  4. ↑ Hamdan versus Rumsfeld
  5. ↑ "Guantanamo is cruel" - UN demands closure , Oct. 30, 2007