A reflection on what ought not to be a legal difficulty
Yesterday, Dr Sherry Jarrell strayed outside her normal field of economics and voiced the feelings of an ordinary US citizen. That is that the “underwear” bomber should be seen as a combatant, not as a common criminal.
It’s easy to share the frustration of others that someone who allegedly was committed to blowing up an American airliner was clearly behaving as an enemy of the State and, therefore, should be treated and tried in a military manner.
What is the history of such definitions as combatants? WikiPedia provided an answer. (NB. Good reporting should cross-check a source with another source. I spoke with a Barrister friend of mine and he confirmed that the entry under WikiPedia appeared to be legally correct and reliable. Readers are asked to make up their own minds on this issue.)
Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: “Any person in an armed conflict who could be properly detained under the laws and customs of war.” In the case of a civil war or an insurrection the term “enemy state” may be replaced by the more general term “Party to the conflict” (as described in the 1949 Geneva Conventions Article 3).
All well and good. But then it gets slightly more obtuse:
In the United States the use of the phrase “enemy combatant” may also mean an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror. In this sense, “enemy combatant” actually refers to persons the United States regards as unlawful combatants, a category of persons who do not qualify for prisoner-of-war status under the Geneva Conventions. [My italics.]
Thus, the term “enemy combatant” has to be read in context to determine whether it means any combatant belonging to an enemy state, whether lawful or unlawful, or if it means an alleged member of al Qaeda or of the Taliban being detained as an unlawful combatant by the United States.
The definition of lawful or unlawful combatant goes back in the United States to 1942.
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.(Emphasis added)
However, more change came along, “On March 13 2009 United States Attorney General Eric Holder issued a statement that the United States had abandoned the Bush administration term “enemy combatant”. The statement said, “As we work toward developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law.”
If there is complete clarity between the actions of a criminal and those of an enemy combatant, the general public ought to see that clarity as well. It’s not clear that this is the case and the danger exists that the perception of a clear and impartial legal system will suffer.
By Paul Handover