ARE CIVILIAN TERRORISTS DIFFERENT FROM MILITARY SABOTEURS OUT OF UNIFORM?The Armchair Generalist has questions and concerns regarding my post on illegal combatants
. I urge to read his post in full but here is AG's main point:" I say this based on Mark's last sentence there, about "fighting out of uniform." Now if we were talking about captured Iraqi soldiers that had attacked US forces in March-April 2003 while in civilian attire, I would have no argument. But what about civilians that are recruited by terrorist organizations that have no allegiance to a government at war with the United States? Certainly the Laws of War that address spies and saboteurs do not apply to terrorists (although other chapters probably do). Van Creveld points out in his book "Transformation of War" that the military has always dealt harshly with citizens that interfere in military affairs, be they militias or terrorists. Clearly they are a different class than trained military personnel that are fighting while wearing civilian clothes."
I think Armchair Generalist is wrong here except in the instance when, as per the Hague Laws 1907, civilians are reacting to an ongoing attack and are picking up arms to run out the door and fight the enemy. At that point in time they are freed of the legal obligation to " uniformed" . At all other times to be regarded as legal combatants, civilians who may be enrolled in militias, paramilitaries, self-defense corps, guerilla armies or terrorist groups must, as per Geneva in Article 4, paragraph A(2):"(b) that of having a fixed distinctive sign recognizableat a distance; (c) that of carrying arms openly; (d) that of conductingtheir operations in accordance with the laws and customs of war."
Full field dress is not needed. An armband or distinctive badge of sufficient size will meet the Geneva Convention standard of being distinguishable at a distance as a combatant. Other than unprepared civilians confronting a military attack as I mentioned earlier, there no exceptions in international law to this rule. Even the supplementary Protocols to Geneva, which privilege unconventional fighters over regulars, requires guerillas use" a distinctive sign" for actual combat operations ( the US is not a signatory here and is not bound by these anyway).
"Terrorist" of course, is a political and not a legal term. Determination of combatant status is a fact-driven process. Civilians become combatants simply by bearing arms or engaging in espionage for the enemy ( sabotuers are treated as spies under international law). Whether they are legal or unlawful combatants is determined by how they bear their arms and against whom. The members of al Qaida, by mutual declarations of both al Qaida and the United States government, are engaged in armed hostilities with the United States and are not, for the purposes of international law, military law or American statutory law, civilians any longer.
One further clarification of my position. I am in favor of real military tribunals that follow the precedents and procedures of the UCMJ and the Laws of War to try suspected war criminals - not a drumhead affair where a Judge Roy Bean type yells " guilty" and the defendents are promptly hanged. We have the rules, we have the precedents, to deal harshly enough with al Qaida terrorists if we go by the book and have the stomach to mete out death sentences where the evidence warrants it. The Bush administration has some historical precedents for issuing blanket prolamations but they would be on firmer legal ground ( and avoid many mistakes) by conducting proper trials before commissions or tribunals on an individual basis. Nor would all al Qaida fighters captured out of uniform need to be shot upon conviction but the possibility should remain open to encourage collaboration in return for leniency.