The Customary International Law of War and Combatant Status: Does the Current Executive Branch Policy Determination on Unlawful Combatant Status for Terrorists Run Afoul of International Law, or Is It Just Poor Public Relations?
This paper reviews the domestic and international law basis for the executive authority to determine combatant status, and analyzes the legality of contemporary practice. It also accepts, as a definition for unlawful combatants: "persons violating the traditional laws and customs of war." Unlawful combatants do not meet the traditional captured combatant (prisoner of war) protections embodied in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter Geneva Convention I). Part I of this paper examines the historic views of combatant status among sovereigns. It also addresses the evolutionary purpose of the law of armed conflict in designating combatants versus non-combatants. Part II discusses the origins and core philosophy (or theology) of modem religious-based terrorism. Part III analyzes the contemporary domestic practice of determining combatant status. Part IV reviews the United States' position in a comparative framework against the practices of other signatories to the Geneva Convention. Both Israeli and British determinations of combatant status are analyzed in this comparison. Finally, the paper concludes with the assessment that, to date, the current administration has correctly identified al-Qaeda members as unlawful combatants, not subject to the complete protection of the Geneva Convention III.
Gonzaga Law Review
Joshua E. Kastenberg,
The Customary International Law of War and Combatant Status: Does the Current Executive Branch Policy Determination on Unlawful Combatant Status for Terrorists Run Afoul of International Law, or Is It Just Poor Public Relations?,
Gonzaga Law Review
Available at: https://digitalrepository.unm.edu/law_facultyscholarship/424