Under the category of non-combatants fall civilians (that is persons who are not attached directly or indirectly to armed forces) providing that they don’t take direct and active part in hostilities. Combatants can withdraw from hostilities, either by retiring and becoming civilians or by hors de combat, either by choice (laying down of arms and surrendering) or by force (getting wounded, sick or shipwrecked). ⁴ The category of unlawful combatants as category falling between the categories of lawful combatants and civilians is of a controversial character. The controversy of category is given by non-existence expressis verbis of such category in any international instruments on laws of wars. Unlawful combatants/belligerents can be however considered persons taking direct part in hostilities without being entitled to do so and who therefore cannot be classified as POW under the capture by the power of the enemy ⁵ .

Nevertheless, due to the decision of the International Criminal Tribunal for Former Yugoslavia (hereinafter the ICTY) in so-called Celebici case no such category of unlawful combatants exists. The ICTY in reasoning of mentioned case couldn’t distinguish between lawful and unlawful combatants and it referred to the commentary of the International Committee of Red Cross (hereinafter the ICRC) on The Four Geneva Conventions (hereinafter the GC) stating that person can be either combatant or civilian ⁶ . Such reasoning of the ICTY is however in contrast to the decision of the United States Supreme Court in Quirin case. The court in this case decided that the United States Military Tribunal had jurisdiction over the trial of several German saboteurs in the United States. The court in its reasoning clearly distinguished between the category of lawful and unlawful combatants. In accordance to the reasoning of the court unlawful combatants, like lawful combatants, are subject to capture and trial, but moreover, they are subject to

⁴ Dinstein, Y., (2003). “Unlawful combatancy”. Israel Yearbook of International Law, 32, p. 248,pp.247-270.

⁵ Aldrich, G., (2002). “Taliban, al Qaeda and determination of illegal combatants.” The American Journal of International Law,96, p. 893, pp.891-899.

⁶ “e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution - not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view”; Commentary of ICRC to the 4 Geneva Conventions, p.51, Prosecutor v. Zejnil Delalic Zdravko Mucic also known as “PAVO” Hazim Delic Esad Landzo also known as “ZENGA”, judgment of 16 of November 1998 para. 271,http://www.un.org/icty/celebici/trialc2/judgement/index.htm, accesed on 5. april of 2007.

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trial and punishment by military tribunal for the conduct that constitutes their belligerency unlawful. 7

It is the principle of distinction between combatants and civilians that operates as fundamental and intransgressible principle of international law as stated by the ICJ ⁸ . The same principle of distinction, applied between lawful and unlawful combatants by Dinstein, is “… a corollary of the fundamental distinction between combatants and civilians: in which the paramount purpose of the former is to preserve the latter” ⁹ . Thus, once protected as civilian, he/she cannot at the same time enjoy the protection of combatant, and vice versa. Civilians cannot participate in hostilities, and if they do, they lose their status of civilians protected by the section of the Protocol Additional to the Geneva Convention and relating to the protection of victims of international armed conflicts for the time they are taking direct part in hostilities (hereinafter API). 10

The determination of lawful and unlawful combatancy and status of POW by particular provisions of international law of armed conflicts as applicable in the war in Afghanistan (2001)

On February 7-th 2002 President of the United States George W. Bush decided in relation to the war in Afghanistan on three major issues: 1) that Third GC relating to the status of prisoners of war applies in conflict in Afghanistan between the USA and Taliban; 2) that convention doesn’t apply in Afghanistan and elsewhere between the USA and Al-Qaeda;

⁷ The US Supreme Court Ex-parte Quirin, 317 US 1 (1942),

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quirin.html. “By universal agreement and practice 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.”

⁸ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, {1996), ICJ Reports 26, 257.

⁹ Dinstein, Y., (2005). Cambridge University Press, 2005, “The conduct of hostilities under the law of international armed conflict”. Cambridge: Cambridge University Press, p.29.

¹⁰ Art. 51 (3) of the Protocol Additional to the GC of 12 August 1949, and relating to the Protection of victims of international armed conflict (Protocol I).

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3) that neither Al-Qaeda nor Taliban personnel, if captured, are entitled to the status of POW; 4) that nevertheless, they are entitled to be treated humanely, consistently with the principle of the Third GC ¹¹ .

In order to determine the legality of such statement the application of relevant provisions of international law of armed conflicts is to be considered. Conflict between the USA and Afghanistan in 2001 can be considered international armed conflict. Both states, the USA and Afghanistan were at that time parties to the GC and Hague Conventions ¹² . Despite of the existence of links between Al-Qaeda and Taliban (Taliban being in 2001 in effective control of 90 % of the territory of Afghanistan ¹³ ), it is necessary to consider the position of both of them separately. The mere fact of non-recognition of Taliban as eligible government of Afghanistan by most of the countries, including the USA, has no effect on the position of members of Taliban and their status of POW under the GC ¹⁴ . Providing, Taliban was (2001) considered armed forces of Afghanistan, the question of the fulfilment of requirements for entitlement of POW status as stated in Art. 4 of the Third GC arises. Thus, even though Art.4 A para.1 of the Third GC doesn’t state expressis verbis the obligation of fulfilment of requirements in order for armed forces to be entitled to the status of prisoners of war if captured ¹⁵ , as it is stated in context with members of militias or other volunteer corps not belonging to the armed forces ¹⁶ , one can logically conclude the obligation of such fulfilment even by the members of armed forces to preserve the fundamental principle of distinction between combatants and civilians and in

¹¹ Aldrich, G., supra note 5, p. 891.

¹² The USA has ratified the Geneva Convention on 2.8.1955 and Afghanistan on 26.9.1956.

¹³ Wolfrum R.,and Philipp, C. (2002). “The Status of the Taliban: Their obligations and rights under international law”. Yearbook of United Nations Law, 26, p. 559, pp.570-577.

¹⁴ Art. 4(A)(3) of the Geneva Convention (III) states “Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power” are entitled to status of prisoners of war.

¹⁵ By the provisions of Geneva Convention III, Art. 4 A para 1 prisoners of war are: “members of the armed forces of a party to a conflict, including militia or volunteer corps forming part of such armed forces”. The Third Geneva Convention relating to the status of prisoners of war.

¹⁶ By the provisions of The Third Geneva Convention Art. 4(A) para 2 “Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.”

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this context more appropriate between lawful and unlawful combatants. Such requirement, even though only of the obligation of wearing the uniforms, can be concluded from wording of Art.44 (7) of API as part of customary international rule. ¹⁷ . As Dinstein pointed in this context “the issue here is not whether combatants can be seen, but the lack of desire on their part to create the false impression that they are civilians” ¹⁸ . The same opinion was given by the Privy Council in the Mohamed Ali case in 1968 ¹⁹ and also in previously cited Quirin case ²⁰ . Although, there are some scholars as Aldrich and Azubuike, who doubt the legality of such reasoning ²¹ , and thus they deny the existence of international customary rule which would provide for such requirements of the distinction also in relation to the members of armed forces ²² . The GC in Art. 4(2) repeats the four conditions stated in Hague Regulations but adds two additional requirements a) organisation and b) belonging to a party to the conflict ²³ . Dinstein however adds another requirement of lack of duty of allegiance to the detaining power ²⁴ . He derives such requirement from the Koi case, as not specifically mentioned in GC. However such requirement appears in provisions of Art. 87 and Art. 100 of Third GC, by which it is clearly stated that POW are not nationals of the detaining power and do not

¹⁷ Art. 44(7) of API “This Article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict”.

¹⁸ Dinstein, Y. The conduct of hostilities supra note p. 39.

¹⁹ The Privy Council decided that even the Third Geneva Convention doesn’t expressly state the obligation to fulfil all cumulative conditions expressly stated for member of irregular forces by members of regular armed forces, members of regular forces have to fulfil the obligations stated for members of irregular forces. Mohamed Ali et al. v. Public Prosecutor (1968), {1969} AC 430, 449.

²⁰ Ex parte Quirin et al., supra note 7 , at 35-36.

²¹ Aldrich, G, supra note 59, p. 895. “Whether the four conditions applicable under art. 4A para 2 to members of militias and other voluntary corps that are not a part of the armed forces of a state are also inherent requirements of any of state’s armed forces id debatable question”.

²² If Taliban soldiers are members of the armed forces of Afghanistan, then by the definition, if they are captured, they qualify under Art. 4 (A) (1) and not under Art. 4 (A)(2) and are entitled to prisoners of war status. Azubreike, L. (2003), “Status of Taliban and Al Qaeda soldiers”. Connecticut Journal of International Law, 19,p.147,pp.127-154.

²³ Art. 4(A)(2) of Third GC.” Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war”.

²⁴ Dinstein, Y., supra note 4, p.256.

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owe it any duty of allegiance ²⁵ . Considering all cumulative requirements, Taliban didn’t meet at least requirement of wearing uniform, or other distinctive emblem, and as such it couldn’t be entitled to status of POW, if captured. However, by the application of the provision Art. 5 para 2 of the Third GC if any doubt arises in context with status of POW, person enjoys the protection of the Third GC until the status has been determined by the competent tribunal ²⁶ . As it is stressed out by Naqvi “it may be concluded that, on the basis of the interpretation of the rule in military manuals, that doubtful prisoner-of-war status under Art. 5(2) of Third GC 27 may arise where serious doubt exists as to whether a captured person fits within the Art. 4 category despite general (unwritten) presumption of prisoner-of-war status for those taking part in hostilities ²⁸ . The same argument was given by Dinstein by whom such general presumption is given by adjudicating the requirements on collective and individual basis. ²⁹ For instance, if group disrespects jus in bello as whole, individual of such irregular force cannot be considered POW if, captured. On the other side, if group acts in accordance with the law of war, individual, if captured, should benefit from doubt. However, it is necessary to decide in every doubtful case on status of POW because such “general presumption of POW” for those who are taking direct part in hostilities as whole is not of legal character but more of subjective character. It can be argued that such decision of competent tribunal on the entitlement of POW in doubtful case will later constitute such general presumption for future cases as precedent. Thus,

²⁵ Public Prosecutor v. Koi et al., (1967),{1968}A.C.829, 856,858. The Privy Council held that nationals of the detaining power, as well as other persons owing it a duty of allegiance, are not entitled to POW status.

²⁶ Geneva Convention (III), Art. 5 para 2, “should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

²⁷ Art 5(2) of the third Geneva Convention Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status

has been determined by a competent tribunal.

²⁸ Naqui,Y., (2002). “Doubtful prisoner-of-war status”. International Committee of Red Cross. 84,pp. 847.Accessed at www.iccr.org.

²⁹ Dinstein,Y., supra note 4, p. 262.

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until such decision is made by competent tribunal, every doubtful lawful combatant enjoys the protection of Third GC ³⁰ .

In order to decide if Al-Qaeda has fulfilled the requirements of belonging to the Party to the conflict is necessary to prove the link between Taliban (as having status of de facto government over Afghanistan) and Al-Qaeda as irregular forces of Taliban and therefore Afghanistan as party to the conflict. Considering 2001 war, Al-Qaeda would suffice the requirement of belonging to the party of conflict, as being irregular forces of Taliban, with the consequent application of the GC. The fact that Al-Qaeda fought in Afghanistan under the auspices of the ruling Taliban government, even not recognised by the vast majority of international community has no effect to the decision on POW status ³¹ . Considering that war started before attack on World Trade Centre or by that attack, judging by the events of September 11 of 2001 of attack on civilian objects, at least one of the requirements, that of compliance with the rules of international law of armed conflict wasn’t fulfilled ³² , not mentioning the mere fact of not wearing uniform or distinctive emblem recognisable at distance. Thus, Al-Qaeda fighters, without necessity to put into the test rest of cumulative requirements, cannot be entitled to the status of POW by lack of compliance with jus in bello. Providing that competent tribunal decided on status POW and denied such status to Al-Qaeda combatants, such unlawful combatants wouldn’t be then entitled to the protection of Third GC. If unlawful combatants cannot enjoy the protection of Third GC they fall under Fourth GC, as protected persons. This statement is conformed to the decision in previously mentioned Celebici case where the ICTY stated that no one in enemy hands can be outside of the law ³³ . Art. 4 of Fourth GC related to the protection of civilians can be according to Knutz applied to the category of unlawful combatants of Al-Qaeda as protected

³⁰ Art. 5 of Third GC.

³¹ Wang V.,(2005). “Assessing The Bush’s Administrations’ detention” . Arizona Journal of International Law and Comparative law, 23, p. 433.

³² Anderson, K., (2001). “ What to do with Bin Laden and Al Qaeda terrorists? A qualified defense of military commission and US policy of detainees at Guantanamo Bay Naval Base”. Harvard Journal of Law and Public Policy, 25, p. 615,pp. 591-634 “ using civilians as both means and targets of their attacks”

³³ supra note 6.

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