An Appraisal of US Practice Relating to 'Enemy Combatants'

Abstract

This note explores the use and abuse by the U.S. of the law of armed conflict, and related consequences in the realm of international human rights obligations, that result from designation of persons as 'enemy combatants' or 'unlawful enemy combatants' in the fight against terrorism. Section II briefly describes factors that do and do not trigger application of the law of armed conflict and the consequences of whether or not it applies. Section III describes the two subcategories of armed conflict - international and non-international - and how IHL does and does not apply to various aspects of the so-called 'war against terror', as they fall within the scope of international armed conflict, non-international armed conflict and non-armed conflict. It then describes the IHL concept of 'combatant' (privileged belligerent) and its alternative, 'civilian', the appropriate designation for persons who do not qualify for combatant status even though they may participate in hostilities. Having distinguished between the two categories of armed conflict and of individuals who fall there under, Section III then discusses the scope of application of human rights law to such individuals, even where IHL is the primary source of applicable law. With the scope of application of legal frameworks to distinct categories of individuals having been established in Sections II and III, Section IV then describes the non-conforming concept and consequences of being designated an 'enemy combatant' by the US administration, and how that concept and those consequences have been debated and affected by domestic legislation and litigation. Finally, Section V concludes with recommendations to bring US practice back in to line with US international legal obligations.