Hostile Protected Persons or "Extra-Conventional Persons:" How Unlawful Combatants in the War on Terrorism Posed Extraordinary Challenges for Military Attorneys and Commanders
2004; Fordham University School of Law; Volume: 28; Issue: 3 Linguagem: Inglês
ISSN
0747-9395
Autores Tópico(s)Military and Defense Studies
ResumoFirst, this Article reviews policymakers’ and commentators’ categorization of participants in Operation Enduring Freedom, the armed conflict in Afghanistan against al Qaeda and Taliban fighters. This Article concentrate specifically on the status of participants operating at the fringes of the categories of protected by the Geneva Conventions. It shows, for example, how al Qaeda and the Taliban fighters tested the bounds of the Conventions by employing methods of “warfare” which rendered them non-distinct and therefore made a determination of their status unclear. This Article demonstrates how policymakers and ultimately the U.S. President created a class of persons–so-called persons–who participated in hostilities yet failed to qualify for protection under any of the applicable Geneva Conventions. Second, this Article presents the training and education available to the judge advocates who faced these legal issues. it further presents perspectives on the law of war as it appeared from the resources, education, and training commonly available to deployed judge advocates. This Article ultimately concludes that international law and U.S. military doctrine classify many who participate in hostilities as “protected persons” under the Fourth Geneva Convention–a concept ultimately at odds with the determination made by U.S. policymakers.Third, and in concert with the two issues identified above, this Article describes the enormous challenges these issues created for U.S. military participating in Operation Iraqi Freedom. Specifically, it illustrates operational and legal challenges faced by military attorneys and the commanders they advised. It then explores legal issues that arose during the detention and occupation operations with respect to fighters associated with Saddam Fedayeen. Observing apparent similarities between Saddam Fedayeen and Taliban fighters earlier categorized as extra-conventional, this Article describes how, despite similarities in applicable law and attributes, judge advocates determined that these irregular fighters were protected under the Fourth Geneva Convention. It concludes that judge advocates dealt with these challenges responsibly, providing sound legal advice that balanced commanders’ mission requirements with the humanitarian spirit of the law of war. HOSTILE PROTECTED PERSONS OR EXTRA-CONVENTIONAL PERSONS:, HOW UNLAWFUL COMBATANTS IN THE WAR ON TERRORISM POSED EXTRAORDINARY CHALLENGES FOR MILITARY ATTORNEYS AND COMMANDERS Lt. Col. Paul E. KantwiUl 2 & Maj. Sean Watts3 1. We use the term persons to refer to classes of that policymakers and commentators have concluded do not fall within the enumerated categories of who enjoy protection under the law of war. See, e.g., Richard R. Baxter, So-Called Unprivileged Belligerency: Spies, Guerillas, and Saboteurs, 28 BRIT. Y.B. INT'L L. 323, 326-28 (1951); Jason Callen, Unlawful Combatants and the Geneva Conventions, 44 VA.J. INr'L L. 1025, 1028 (2004); DerekJinks, The Declining Significance of POW Status, 45 HARV. INT'L L.J. 367, 367-68 (2004). The term is borrowed primarily from human rights law writers who identify protections and rights not found in treaties or conventions, but rather grounded in so-called extra-conventional sources such as ad hoc rapporteurs and international commissions. See, e.g., Jose Ayala-Lasso, Making Human Rights a Reality in the 21st Century, 10 EMORY INT'L L. REv. 497, 498 (1996); Dinah Shelton, The Boundaries of Human Rights Jurisdiction in Europe, 13 DuKEJ. COMp. & INT'L L. 95, 107 (2003). We are unaware of prior published use of this term to refer to unprotected in the context of armed conflict. 2. Chair and Professor, International and Operational Law Department, The Judge Advocate General's Legal Center and School, Charlottesville, Va. Previous assignments include: Legal Assistance Attorney/Chief, Claims Division, 1st Armored Division, Nuremberg, Germany, 1990; 1st Armored Division, Operation Desert Shield/ Storm, Saudi Arabia, 1990-1991; Trial Counsel, 1st Armored Division, Germany, 19911992; Trial Counsel/Senior Trial Counsel, 3d Infantry Division, Germany, 1992-1993; Senior Defense Counsel, 24th Infantry Division and Fort Stewart, Ga., 1993-1996; Director, Training and Support, Center for Law and Military Operations, T.J.A.G.S.A., 19961998; Officer-in-Charge, 1st Infantry Division, Katterbach, Germany, 1999-2001; Chief, Military Justice, 1st Infantry Division, Wuerzburg, Germany, 2001-2002; Deputy Staff Judge Advocate, 1st Infantry Division, Wuerzburg, Germany, 2002-2003; and Student, Command and General Staff College, Ft. Leavenworth, Kan., 2003-2004. B.A., Loyola University of Chicago, 1983; J.D., Loyola University of Chicago School of Law, 1986; LL.M., The Judge Advocate General's School, 1999. The Authors wish to express special thanks to Maj. Thomas A. Wagoner, Maj. Derek Grimes, and Maj. Frank Vila of the International Law Department faculty for their invaluable review and comments. Any remaining errors are, of course, the Authors' alone. 3. Professor, International and Operational Law Department, The Judge Advocate General's Legal Center and School, Charlottesville, Va. Previous assignments include: Chief of Claims, Trial Defense Counsel, Fort Lewis, Wash.; Chief of International and Operational Law, 2nd Infantry Division, Republic of Korea; Platoon Leader and Executive Officer, 1-33 Armor Battalion, Fort Lewis, Wash.; and 3-77 Armor Battalion, Mannheim, Germany. B.A., University of Colorado, 1992; J.D., College of William & Mary, 1999, Notes Editor, William & Mary Law Revieur, LL.M., U.S. ArmyJudge Advocate General's School, 2004. The views expressed in this Article are solely those of the Authors and do not reflect the views of the Department of Defense (DOD) or The Judge 682 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 28:681
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