‘Unlawful Combatants’: The West's Treatment of Irregular Fighters in the ‘War on Terror’

‘Unlawful Combatants’: The West’s Treatment of Irregular Fighters in the ‘War on Terror’ August 18, 2014

By Sibylle Scheipers Sibylle Scheipers is a Senior Lecturer in the School of International Relations, University of St Andrews, UK. The author would like to thank Alex Danchev and Bettina Renz for helpful comments on earlier versions of this article. Research was funded by a Leverhulme Trust research fellowship (RF 20012-111).

Abstract: The West’s treatment of irregular fighters in the “war on terror” was highly problematic. This article contends that we must look beyond the assumption that political and strategic considerations compromised the law and led to the “invention” of the category of the “unlawful combatant.” Rather, the law of armed conflict itself includes strong exclusionary mechanisms towards irregular fighters. These exclusionary strands in the law came to dominate the West’s strategic decision-making on the treatment of irregular fighters. Moreover, the fact that irregular fighters became such a vital issue post-9/11 was not a result of the war on terror being a new kind of war, as has often been argued. Rather, this article suggests that it reflects an identity crisis of the West’s regular armed forces at the start of the twenty-first century.

T

he treatment of irregular fighters was among the most problematic aspects of the so-called “war on terror.” Many of the issues relating to the West’s approach to irregular fighters after 9/11 persist.1 In spite of Barack Obama’s

This article will refer to the phenomenon at hand as “the West’s treatment of irregular fighters.” While the United States was, undoubtedly, the leading actor in the post-9/11 approach to irregular fighters—and most of the relevant documents that are publicly available were drafted within the U.S. Administration—its Western allies, in particular within NATO, played a relevant part in implementing this approach, as well. Until 2005 the U.S.’s NATO partners in Afghanistan handed over all irregular detainees to U.S. forces. Various European states also colluded with the U.S.-run program of “extraordinary renditions.” However, the precise nature of the role that the U.S. allies played is not yet fully known and many relevant documents are still classified. Yet, restricting the object of analysis to the U.S. treatment of irregular fighters would be inaccurate and misleading. 1

© 2014 Published for the Foreign Policy Research Institute by Elsevier Ltd.

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2009 pledge to close the prison at Guantánamo Bay, it still holds a significant number of inmates. The notion of the “unlawful combatant” has developed into a potent symbol of these problematic policies. Yet it is not entirely clear what led to the emergence of these policies. Most critics of the post-9/11 detention policies perceived them as a result of the Bush Administration’s decision to sacrifice legal constraints for the sake of political expediency and strategic efficiency. According to Philippe Sands, “Legal opinions became an expression of policy.”2 Others referred to Guantánamo as a “legal black hole.”3 Statements made by officials from within the Bush Administration corroborated this impression, since they frequently claimed that the law of armed conflict was outdated and ill-suited to wars in the twenty-first century. However, others have pointed out that the detention regime in the war on terror was, in fact, not “removed from the law.” Rather, it was developed by lawyers and underpinned by legal arguments, even if some of the arguments were deeply erroneous. In fact, while the drafting history of the so-called “torture memos” has often been decried as a process of political expediency usurping the law, the second charge frequently leveled against the memos’ drafters was that they adopted a “narrowly legalistic approach.”4 Jack Goldsmith, who resigned from his post as head of the Office of Legal Counsel of the U.S. Department of Justice in 2004 over the issue of detention and torture, echoed this assessment when he wrote in his political memoir that the “war on terror” had been “lawyered to death.”5 With hindsight it became clear that the post-9/11 detention policies were not only morally questionable, but also had disastrous political and strategic consequences. Although the war on terror started with the narrowly defined aim of combatting terrorism, the West’s wars in Afghanistan and Iraq soon evolved into “stabilization” operations. The vast majority of irregular fighters and “terrorists” encountered on the battlefields in Afghanistan and Iraq had little in common with the al Qaeda masterminds of 9/11. They were low- to mid-level militants or warlords who did not pose an acute threat to the West. Eventually it became evident that they would have to be involved in the post-war political process to enable a sustainable political situation to emerge, the establishment of which had become the explicit aim of Western strategy. Indefinite detention, torture and inhumane treatment proved counter-productive with respect to the aim of political stabilization. Not only were these practices perfect recruitment tools for the insurgent movements. They also undermined local societal structures and corrupted local political institutions. And these sent ambivalent messages to the governments in the target states and encouraged them to emulate dubious detention policies. 2 Philippe Sands, Torture Team: Deception, Cruelty and the Compromise of Law (London: Allen Lane, 2008), p. 275. 3 Johan Steyn, “Guantánamo Bay: The Legal Black Hole,” International and Comparative Law Quarterly, vol. 53, no. 1 (2004), pp. 1-15. 4 Adam Roberts, “The Civilian in Modern War,” in Hew Strachan and Sibylle Scheipers, eds., The Changing Character of War (Oxford: Oxford University Press, 2011), p. 366. 5 Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W.W. Norton & Company, 2009), p. 69.

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Finally, at the political level, few would disagree that the post-9/11 treatment of irregular fighters did lasting damage to the international standing of the United States and the West. In other words, even if those who had masterminded these policies had intended to sacrifice legal constraints for political and strategic benefits, they evidently failed to achieve any of those benefits. In sum, the West’s treatment of irregular fighters in the war on terror—in particular, its detention policies—were clearly at odds with its professed political and strategic aims. Was this simply the result of the fact that after 9/11, decision makers in the United States and in the West more broadly were blinded by fear and ideology? Or must we look for the deeper roots for the concept of the “unlawful combatant”’? And what is the relationship between the unlawful combatant and the law: did the concept emerge from outside of the law or was it a result of "excessive legalism"? In fact, there is a striking continuity between century-old legal arguments about irregular fighters and the arguments recently used to justify excluding unlawful combatants from legal protections. Ironically, although many of the drafters of the post-9/11 approach to irregular fighters declared that the law of armed conflict was outdated and ill-suited to wars in the twenty-first century, they harkened back to legal arguments about irregular fighters that first developed during the French Revolutionary and Napoleonic Wars and later became codified in the modern law of armed conflict. First, we must clarify the notion of the irregular fighter. This article focuses on irregulars such as rebels, guerrillas, insurgents and terrorists, but not on pirates or mercenaries, who are sometimes also included in the category of the irregular fighter. The aim is to trace the evolution of the concept of the irregular with a particular view to the legal codification and discourse. While pirates and mercenaries underwent a process of legal exclusion that was similar and often ran parallel to the marginalization of rebels, guerrillas and insurgents, the legal texts and instruments applying to the former are different from those applying to the latter. Reconstructing three different legal discourses is beyond the scope here. Defining irregular fighters is inherently problematic. Most definitions emphasize the use of irregular tactics such as surprise attacks, ambushes and small raids.6 However, irregular tactics are not the sole preserve of irregular fighters—regular armies use them as well. Other approaches equate irregular fighters with non-state actors. Yet most irregular fighters have a more complex relationship to the state than the dichotomy of state vs. non-state implies. They often emerge from state structures, enjoy state support, and aspire to statehood themselves. Often the question of who 6 John Arquilla, Insurgents, Raiders, and Bandits: How Masters of Irregular Warfare Have Shaped Our World (Lanham, MD: Ivan R. Dee, 2011), p. 3ff.; Ian F Beckett, Modern Insurgencies and Counterinsurgencies: Guerrillas and Their Opponents since 1750 (London: Routledge, 2001), p. 2; Max Boot, Invisible Armies: An Epic History of Guerrilla Warfare (New York: Norton & Company, 2013), p. xxii; Walter Laqueur, Guerrilla Warfare: A Historical and Critical Study (New York: Transaction, 1998), p. xvi.

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legitimately represents the state is at the heart of the armed conflict in which irregular fighters are involved. A Different Perspective Let us proceed from the assumption that the impact of the concept of the irregular fighter can be felt first at the ideational level of war. As Patrick Porter observed, “Armed conflict is an expression of identity as well as a means to an end.”7 While opponents in a war mobilize their material resources to prevail on the battlefield, they cannot do so without at the same time harnessing ideas and attitudes about themselves and their enemies. Opponents who are identified as not belonging to the same category of actors as the self, in other words, opponents who are perceived as the “other,” are characteristically assigned both attributes of inferiority and superiority. They are seen as inferior, because they are regarded as savage, uncivilized and undisciplined. At the same time, their negative attributes can be perceived as an advantage: uncivilized behavior can translate into increased martial spirits and fighting prowess. In this context, introducing hierarchical dichotomies, such as that between the regular and irregular, are a means of taming the ambiguity of the “other” and of establishing a degree of order on the battlefield. Conversely, at times when the identity of the regular armed forces is in crisis, for instance due to changes in recruitment patterns or military technology, harnessing the irregular as the conceptual opposite of the regular can contribute to reestablishing a sense of self-identity of the regular armed forces. Against this background, I define the concept of the irregular fighter as: an ideational weapon of war. Charging an opponent of being an irregular fighter has important ramifications in the battle of ideas and definitions. It is a means of denouncing someone for fighting an unfair fight, for fighting for the wrong motives and/or for having no right to take up arms. The History of the Irregular Fighter The Making of the Irregular, 1740-1815. The first mention of the term irregular warfare can be found in the mid-eighteenth century. However, at that time it was not a term intended to denounce rebellions or peasant uprisings—two forms of warfare that contemporaries regarded as illegitimate. Rather, it described a tactical phenomenon. “La guerre irregulière” was the subject of numerous military treatises written by officers such as Turpin de Crissé, Hector de Grandmaison, Capitaine de Jeney, Roger Stevenson, Johann von Ewald, Andreas Emmerich, Georg Wilhelm von Valentini, Gerhard von Scharnhorst, Friedrich Leopold von Klipstein and Carl von Decker.8 The treatises emphasized the advantages of light infantry and cavalry:

Patrick Porter, Military Orientalism: Eastern War through Western Eyes (London: Hurst, 2009), p. 1. 8 Beatrice Heuser, “Small Wars in the Age of Clausewitz: The Watershed between Partisan War and People’s War,” Journal of Strategic Studies, vol. 33, no. 1 (2010), p. 142; Walter 7

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their maneuverability, their capacity to surprise and ambush the opponent and their comparatively low vulnerability. Europe’s major military powers were provided with a doctrine for their light infantry and cavalry units, which in many cases had already existed, such as the Pandours, Croats and Hussars in the Habsburg Empire, the Grassins in France and the Cossacks in Russia. Hence, irregular warfare initially was not understood as the conceptual opposite of regular warfare. Rather, in the mideighteenth century it was seen as a tactical complement to regular warfare, and irregular fighters featured as a vital aspect of European states’ force structures. However, the peaceful coexistence of regular and irregular combatants as tactical complements was short-lived. The French Revolution and the concomitant nationalization of war at the end of the eighteenth century brought a profound change in the configuration of the regular and the irregular. The historical constellation that precipitated this change was the emerging cult of the levée en masse which originated in France but had profound repercussions across Europe. The military myth and symbolism of the levée was essential to the revolution: it was a radical break with the recruitment methods of the ancien régime, it emphasized the equality of all citizens and their sacrifices for the nation and it epitomized “an extension of state power and of state legitimacy.”9 Most importantly, the myth of the levée deliberately conflated the agency of the state and the revolutionary government with that of the people, the national masses. Revolutionaries depicted the soldiers of the levée as “volunteers,” who spontaneously rushed to the defense of the beleaguered fatherland. This was a highly idealistic picture. The volunteers of the levée en masse of autumn 1793 were conscripts. Conscription was unpopular and denounced as the “blood tax.”10 In fact, opposition to conscription was at the root of the emergence of most counter-revolutionary movements within revolutionary France and, later on, of the resistance movements against the Napoleonic Empire. Resistance against conscription and the extension of state power more broadly were at the heart of the uprising in the Vendée (1793-96), Chouannerie (1792-99) and the 1793 uprising in the Midi as well as the Belgian revolts against conscription in 17981799, the successful 1799 revolt in Calabria, persistent resistance Piedmont 18001807 and several insurrections such as 1806 in the Kingdom of Naples, 1808 in Tuscany and 1809 in the Tyrol and in the Papal States, and, most infamously, guerrilla warfare in the Peninsular War 1808-1814. Armed resistance against the revolutionary government and later against Napoleon not only presented a military problem, but more importantly an intellectual dilemma because the idea of the “people in arms” could refer to both the conscripted armed forces of a state and to the spontaneous uprising of the people Laqueur, “The Origins of Guerrilla Doctrine,” Journal of Contemporary History, vol. 10, no. 3 (1975), pp. 341-82. 9 Alan Forrest, “‘La patrie en danger’: The French Revolution and the First levée en masse,” in Daniel Moran and Arthur Waldron, The People in Arms: Military Myth and National Mobilization since the French Revolution (Cambridge: Cambridge University Press, 2003), p. 24. 10 Michael Broers, “Changes in War: The French Revolutionary and Napoleonic Wars,” in Strachan and Scheipers, The Changing Character of War, p. 74.

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against the state (or the occupying forces of another state). “The word ‘levée’ has several meanings: it signifies both ‘levy’ and ‘uprising.’” Recruitment of troops, which is one of the main prerogatives of central power, and revolt are put on the same level. The oxymoron both affirms and denies state power.11 The solution to this dilemma was to argue that conscripted mass armies were “regular” forces, whereas armed resistance movements were “irregular” fighters. This was the central intellectual requirement for reasserting the legitimacy of the nation state. Whereas earlier regular and irregular had denoted a mere tactical distinction, with the French Revolution the difference between the two signified the distinction between legitimate and illegitimate forms of warfare. A moral hierarchy emerged in the configuration of the regular and the irregular in which the irregular occupied the inferior position. The Army of the French Revolution initially had made efforts to change the traditional structure of the armed forces, most importantly by electing officers from the ranks, but this practice was soon discontinued. What remained, however, was the opening of military careers to members of the middle classes. This led to a more meritocratic system, in which promotion depended on skills and performance. Hence, rather than hindering the professionalization of the armed forces, the revolution actually furthered it in the long run.12 Napoleon embodied the effects of this new meritocratic system. At the same time, he added a vital factor that enabled his Grande Armée to achieve even higher degrees of professionalization: “drill and high-precision training.”13 However, increasing professionalization also meant that troops and officers on the ground were more likely to identify with their opponents and to treat them as iustus hostes, as enemies on an equal moral and legal footing, if they were faced with regular armies. As the new identity of the “professional(lized)” mass army emerged, irregular fighters became the conceptual opposite of this identity. Irregulars were executed on the spot or tried in military courts that could mete out harsher punishments than civilian courts. The emerging narratives on irregular fighters stressed that they were “brigands” and “criminals” motivated by personal gain or, alternatively, that they were “savages” unable to fight in a “civilized” manner. At the heart of both stereotypes was the charge that irregulars could never reach the same level of discipline as regular armed forces. The emerging narratives claimed that discipline was the pinnacle of the regular army and its most distinctive feature compared to irregular fighters. In fact, the levels of discipline on the battlefield achieved under Napoleon were impressive. However, soldiers’ behavior off the battlefield severely undermined this standard. The sheer size of the French conscript army tested French military logistics to such an extent that foraging and pillaging in occupied territory reached dimensions that were unprecedented in the history of war. Constructing the dichotomy between the regular and the irregular in that period was, thus, not so much based on empirical features. Rather, the claim that indiscipline only affected irregular fighters had the Thomas Hippler, Citizens, Soldiers and National Armies: Military Service in France and Germany, 1789-1830 (London: Routledge, 2008), p. 81. 12 Forrest, “La patrie en danger,” p. 30. 13 Broers, “Changes in War,” p. 67. 11

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effect of symbolically purging the emergent regular mass army from all negative traits and attributing them to its conceptual opposite, the irregular, instead. Early Attempts at Legal Codification. This trend was to continue, although contemporaries of the period of restoration did not predict immediately that the French Revolutionary and Napoleonic Wars would have a lasting impact on warfare in Europe. Their aim was to restore the status quo ante. Yet the second half of the nineteenth century brought the realization that irregular fighters continued to be involved in wars in Europe and North America. Both the American Civil War (1861-65) and the Franco-Prussian War (1870-71) saw large involvement of irregular fighters. More importantly, both wars exposed deep political and ideological rifts over the question of what actors were legitimate combatants in war. The republican tradition, which envisaged war to be conducted with the involvement of the citizens of a state, clashed with other approaches that either regarded legal restraints in warfare as superfluous or that insisted that war was the sole preserve of states and their regular armed forces but not of the citizens of a state.14 During the American Civil War this rift was visible in the confrontation between the Union and the Confederacy over the politically sanctioned mobilization of bands of guerrillas and partisans. On April 28, 1862 the Confederate Congress adopted the Partisan Ranger Act, which stipulated that the President could authorize bands of partisan rangers to operate against Union forces behind enemy lines. General Henry W. Halleck, General-in-chief of the Union forces, was adamant that this was a breach of the customs of war. He commissioned a legal memorandum on the problem of guerrilla warfare from the German-born lawyer Francis Lieber. However, the resulting text entitled “Guerrilla Parties Considered with Reference to the Laws and Usages of War” (1862) must have been a disappointment for Halleck. Lieber produced a remarkably detailed and nuanced legal assessment of irregular fighters, distinguishing between six different categories “freebooters,” “brigands,” “partisans and freecorps,” “spies, rebels, and conspirators,” “war rebels,” and the spontaneous “rising on masse.” Of these types of irregulars, only the partisans and freecorps and the rising en masse, even without uniforms, were lawful belligerents in Lieber’s view. The guerrilla oscillated between the brigand, the partisan and the rising en masse, which, according to Lieber, made it particularly difficult to determine his or her legal status.15 Halleck did not agree with Lieber: for Halleck, even partisans, meaning regular units that operated independently from their command, and hence the most “regular” of all irregular fighters were to be considered unlawful belligerents and shot, not to mention risings en masse or guerrillas. Possibly due to this disagreement between Lieber and Halleck, Lieber’s treatment of irregular fighters in the document that would become known as the Karma Nabulsi, Traditions of War: Occupation, Resistance, and the Law (Oxford: Oxford University Press, 1999). 15 Francis Lieber, “Guerrilla Parties Considered with Reference to the Laws and Usages of War” (1862), printed in Richard Shelly Hartigan, Lieber’s Code and the Law of War (Chicago: Precedent, 1983), p. 34f. 14

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Lieber Code, written in 1863, was less nuanced. He retained the distinction between the lawful partisan and unlawful other types of irregular fighters, hence, insisting on this difference in opinion with Halleck. However, he did not mention the rising en masse, nor did he discuss the problematic question of the legality of the guerrilla. However, the Lieber Code included a section on the treatment of what we would today call “civilians” which was to exert a large influence on the conduct of anti-irregular campaigns. Even though Lieber stated that the “unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit,” in the section of the Lieber Code entitled “Insurrection—Civil War— Rebellion,” Lieber argued that protections for “unarmed citizens,” in situations of irregular warfare, depended on whether they fully submitted themselves to the authority of the occupation forces. Those who resisted the occupation, even if they did so passively and without any material support for the guerrillas, could be arrested, banned, fined and their property could be destroyed.16 The problem in situations of irregular warfare, Lieber argued, was that regular soldiers could never be sure whether seemingly peaceful citizens were, in fact, peaceful, because “he that to-day passes you in garb and mien of a peaceful citizen, may to-morrow, as a guerrilla man, fire your house or murder you from behind the hedge.”17 The potentially punitive approach to civilians suggested by Lieber had a lasting impact on the legal discourse on irregular warfare up until the end of World War II. Soon after the end of the American Civil War, the question of how to deal with irregular fighters once again became pressing, though this time on the European side of the Atlantic. In 1870, the Prussian army had all but defeated the French forces and captured Paris, when the French government, now under the leadership of the republican Leon Gambetta, made a last ditch attempt to stave off defeat. In October 1870, Gambetta called his fellow citizens to arms to resist the German occupation forces as francs-tireurs (literally “free shooters”) and to attack their lines of communication. The Prussian leadership was enraged. Despite the French government’s insistence that francs-tireurs were lawful belligerents, the Prussian headquarters issued an order according to which francs-tireurs were not to be treated as POWs, but to be executed upon their capture. This order was later amended and the new decree stipulated ten years of forced labor rather than immediate execution. Yet, it seems that German forces treated most francs-tireurs as POWs when they captured them. However, civilians had to endure harsh treatment by the German forces, in particular in those areas where francs-tireurs were active. Just as the Union forces did in the American Civil War, the Germans chose a punitive approach, which was based on the assumption that it was ultimately the local population who was responsible for the francs-tireurs problem. Given that both the American Civil War and the Franco-Prussian War reflected the deep divergence on the question of lawful belligerency, it was no wonder that both wars were accompanied, or followed, by attempts to codify the laws of war and, in particular, its definition of irregular fighters. On the U.S. side, the Lieber Code served that purpose. In 1874, European governments sent 16 17

“Lieber Code” (1863), printed in Hartigan, Lieber’s Code, p. 49f. Lieber, “Guerrilla Parties,” printed in Hartigan, Lieber’s Code, p. 39.

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delegates to Brussels to create a legal solution. The Brussels conference failed to produce anything that was acceptable to all parties involved, and hence no law was adopted. The question of the lawfulness of irregular fighters had become so entangled with issues of military and political power, as well as with ideological differences, that no agreement was possible among the major European powers. The political cleavage lines soon became clear: Germany and Russia, both of which possessed large regular armies, intended to keep the definition of lawful belligerency highly restrictive, hence not allowing for a defensive levée en masse or even militia forces. In contrast, smaller states that relied on militias for their national defense were opposed to this restrictive proposal. Britain and France supported them. The Brussels conference broke up after one month of negotiations. Only a declaration was issued. However, international lawyers were not discouraged by this outcome. In 1880, the Oxford Institute of International Law published its own manual entitled “The Laws of War on Land.”18 The fact that neither the Brussels declaration nor the Oxford Manual garnered widespread acceptance demonstrated that the definition and treatment of irregular fighters was still undecided. Consensus on the definition of lawful belligerency was only reached in the 1907 Hague Convention. It stipulated that a defensive rising en masse in non-occupied territory was lawful. Militia and volunteer corps could qualify as lawful belligerents. However, they had to resemble regular armies as closely as possible.19 Those who did not meet the requirements for lawful belligerency were not protected by the provisions of the Convention, except for the vague minimum protections stipulated in the Martens clause. Moreover, the Hague Convention did not provide categorical protections for civilians, and hence failed to challenge the established punitive perspective on civilians in situations of irregular warfare. The Partial Rehabilitation of the Irregular. World War II demonstrated the disastrous consequences of this potentially punitive approach towards civilians. Nazi occupation policy on the eastern front and in the Balkans and, to a slightly lesser extent, in occupied western Europe, took the exclusionary approach towards irregular fighters coupled with the punitive approach towards civilians to unprecedented extremes.20 The execution of irregular fighters as well as reprisal 18Project of an International Declaration Concerning the Laws and Customs of War, Brussels, Aug. 27, 1874,: http://www.icrc.org/ihl/INTRO/135; The Institute of International Law, “The Laws of War on Land,” Oxford, UK, Sept. 9, 1880, http://www.icrc.org/ihl.nsf. 19Annex to the Hague Convention (IV) Respecting the Laws and Customs of War on Land, art. 1 and 2, printed in Adam Roberts and Richard Guelff, Documents on the Laws of War (Oxford: Oxford University Press, 2000), p. 73. 20 Omar Bartov, The Eastern Front 1941-45: German Troops and the Barbarisation of Warfare (Basingstoke: Palgrave, 1985); Mark Mazower, Hitler’s Empire: Nazi Rule in Occupied Europe (London: Penguin, 2008); Ben Shepherd, Terror in the Balkans: German Armies and Partisan Warfare (Cambridge, MA: Harvard University Press, 2012); Ben Shepherd, War in the Wild

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killings, deportations and forced labor of civilians and the wholesale destruction of their property were standard Nazi practices in dealing with armed resistance and partisan warfare. Anti-irregular warfare as well as anti-irregular narratives became fused with genocidal policies. “Where there’s a Jew there’s a partisan, and where there’s a partisan there’s a Jew”21 was a concept that the German occupation forces applied not only in the Soviet Union, but also across Europe. In all occupied territories, Jews were the main targets for reprisals and other measures intended to repress armed resistance. This discursive fusion of the concept of the irregular with anti-Semitic motives tagged racial stereotypes on to existing anti-irregular prejudices. While drawing upon the established exclusionary approach towards irregular fighters, Nazi “racialization” of the anti-irregular discourse rendered it particularly virulent and turned even those Wehrmacht soldiers who were not necessarily committed Nazis and racists at the beginning of the war into “willing executioners” of Nazi Germany’s genocide. After the war, many of the former resistance movements formed the core of the new governments in the liberated countries. The commemoration of antiNazi resistance formed, in many instances, the central narrative of their foundational myths. The irregular, who had for one-and-a-half centuries occupied the role of the illegitimate combatant, was subject to a moral reappraisal. Armed resistance against Nazi occupation had proven that the irregular could be morally vindicated. World War II cast doubt on the wisdom of an exclusionary and punitive approach towards irregular fighters and their suspected civilian supporters. This experience gave a major impetus to the recodification of the law of armed conflict in the 1949 Geneva Conventions. However, the drafters of the Geneva Conventions decided not to tackle the legal problem of armed resistance by irregular fighters head on. The criteria for lawful combatancy included in article 4 of the Third Convention were taken almost verbatim from the 1907 Hague Convention. The main innovation of the Geneva Conventions was the codification of protections for civilians in occupied territory in the framework of the Fourth Convention. Articles 4, 13, 33 and 34 demarcated the civilian as a separate category of persons entitled to specific protections in war and broke with the potentially punitive approach to civilians by prohibiting civilian reprisals, fines and the taking of hostages.22 Hence, it also separated the civilian symbolically from his or her alleged links with irregular fighters. The decision to focus on the protection of civilians, but not to reform the requirements for lawful combatancy, boiled down to political considerations. The French delegation to the Geneva Conference, which included many former members of the resistance, had lobbied for including provisions on conditions for lawful acts of resistance against occupying forces, but the United States and the East: The German Army and Soviet Partisans (Cambridge, MA: Harvard University Press, 2004). Japanese occupation policy in Asia featured equal levels of violence and repression, however, Japanese rhetoric did not refer to laws of armed conflict arguments for justification. 21 Shepherd, War in the Wild East, p. 89. 22Geneva Convention Relative to the Protection of Civilian Persons in Time of War of Aug. 12, 1949, art. 4, 13, 33 and 34, Roberts and Guelff, Documents, p. 245f.

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United Kingdom delegations had no interest. In the end, France had to realize that it had switched sides: it was no longer occupied, but part of the Allied occupation forces in Germany.23 However, in one important respect, the Geneva Conventions did introduce new provisions on irregular fighters. Common article 3 spelled out minimum protections supposed to apply in armed conflicts “not of an international character.” These included the prohibition of torture and degrading treatment and the prohibition of executions “without previous judgment pronounced by a regularly constituted court.”24 Not surprisingly, colonial powers, first and foremost the UK, were alarmed by the broad remit of the article. At the time of the Geneva Conference, British forces were fighting a communist insurgency in Malaya and feared that common article 3 was “possibly restrictive to the operations.”25 Both Britain and France attempted to tackle the problem of “possible restrictions” on military operations in the colonies entailed in common article 3 by insisting that the wars in Kenya and in Algeria, for instance, were “domestic emergencies” that did not amount to “armed conflicts not of an international character.” Of course, the desire to exempt colonial warfare from the application of the law of armed conflict had a long-standing tradition. A standard argument of the nineteenth and early twentieth century colonial discourses had been that the native inhabitants of the colonies were not sufficiently “civilized” to abide by the law of armed conflict, so their colonial masters would not have to do so either. Against this background, it is unsurprising that major innovations in the law applying to the question of lawful combatancy and the treatment of irregular fighters were only achieved after the major European powers had lost their colonies. Resistance movements in the colonies strongly emphasized their moral and intellectual proximity to European resistance against Nazi occupation. The 1955 Bandung Conference equally condemned Nazism and colonialism as oppressive regimes that warranted armed resistance. After the wars of decolonization, a partial legal rehabilitation of the irregular was overdue. Moreover, decolonization had bestowed agency in the international realm upon the newly formed states. The making of the law of armed conflict was no longer an exclusively Western affair. The negotiations on Additional Protocol I and Additional Protocol II to the Geneva Conventions which started in 1974 were a deliberate attempt at de-Westernizing the law of armed conflict. One of the most pressing issues on the agenda of the decolonized states was protections for irregular fighters. Additional Protocol I effectively abandoned the notion of lawful belligerency and made the protections of POW status dependent on procedural Geoffrey Best, War and Law since 1945 (Oxford: Clarendon Press, 1994), p. 118f.; Nabulsi, Traditions of War, p. 14. 24 Common Article 3 to the Geneva Conventions, Roberts and Guelff, Documents, p. 302. 25 Army Council Secretariat brief for Secretary of State for War, Dec. 1, 1949, Huw Bennett, Fighting the Mau Mau: The British Army and Counter-Insurgency in the Kenya Emergency (Cambridge: Cambridge University Press, 2013), p. 68. 23

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criteria.26 This legal innovation reflected the fact that insisting on more comprehensive criteria systematically skews the military balance in favor of more powerful opponents, which are essentially organized as states. Yet, at the end of the negotiations, many Western states were shocked by the extent of the de-Westernization of the law of armed conflict envisaged in the Additional Protocols. The result was that “Acceptance of the texts was made conditional, by many States, on the attachment of specific ‘reservations,’ ‘declarations,’ and ‘interpretive statements,’ over and above such qualifications and expressions of doubt as were voiced in the debates.”27 The United States did not ratify Additional Protocol I, precisely due to the broad remit it gave for the attainment of POW protections. As a result, the legal status of irregular fighters continued to be both unclear and contested. The Debate about ‘Unlawful Combatants’ Post-9/11 The preceding history of the concept of the irregular enables us to put the contemporary debate about unlawful combatants into a new perspective. The assumption that lay at the heart of the denunciation of al Qaeda terrorists and militants in the war on terror as unlawful combatants was that the law of armed conflict is outdated or even obsolete, because it was made with a view to major interstate war, whereas the war on terror was a new kind of war. The White House Executive Order of February 7, 2002 stated that the “war against terrorism ushers in a new paradigm”: the United States was no longer facing ‘“regular’ armed forces fighting on behalf of States,” but rather “groups with broad international reach [who] commit horrific acts against innocent civilians, sometimes with the direct support of States.”28 This assessment echoed the various memos that had preceded the Executive Order. In a memo of January 9, 2002, for instance, John Yoo emphasized “the novel nature of this conflict” and went on to argue that: it seems to us overwhelmingly likely that an armed conflict between a Nation State and a transnational terrorist organization, or between a Nation State and a failed State harboring and supporting a transnational terrorist organization, could not have been within the contemplation of the drafters of Common Article 3 [of the Geneva Conventions]. These would have been simply unforeseen and, therefore, not provided for.29

Additional Protocol I, art. 43, 44 (3), Roberts and Guelff, Documents, p. 445. Best, War and Law, p. 418. 28 “Memorandum for the Vice President,” Feb. 7, 2002, Greenberg and Dratel, Torture Papers, p. 134. This assumption was shared and echoed by some European policymakers, for example, John Reid, “Twenty-First Century Warfare—Twentieth Century Rules,” RUSI Journal, vol. 151, no. 3 (2006), pp. 14–17. 29 “Memorandum for William J. Haynes II, General Counsel, Department of Defense,” Jan. 9, 2002, Greenberg and Dratel, Torture Papers, pp. 39, 46f. 26 27

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Finally, Alberto Gonzales stated in a January 25, 2002 memo that “this is a new type of warfare.”30 Yet, in explaining the ways in which this new type of war differs from the established norm, many of these lawyers and policymakers cited arguments that echoed century-old stereotypes about irregular fighters. In a 2003 paper on “The Status of Terrorists,” co-authored with James Ho, John Yoo contended, for instance, that al Qaeda members are, by definition, undisciplined as they “are not under the control of a nation state that will force them to obey the laws of war.”31 This charge goes back to the origins of the marginalization of irregular fighters during the French Revolutionary and Napoleonic Wars. Further, Yoo and Ho wrote that al Qaeda fighters: operate covertly by intentionally concealing themselves among the civilian population; they deliberately attempt to blur the lines between civilians and combatants. Most importantly, they have attacked purely civilian targets with the aim of inflicting massive civilian casualties.32

Here Yoo and Ho echo an argument against irregular fighters that Francis Lieber had already used one-and-a-half centuries earlier. While it is, of course, true that al Qaeda targets civilians, it is problematic and misleading to blame such tactics exclusively on irregular fighters. Another standard characterization of the 9/11 attacks and other terrorist incidents was to label them as acts of “cowardice.”33 Again, the denunciation of irregular fighters as cowards is a familiar theme in the trajectory of their marginalization. It was most prominent during the American Civil War, that is, at a time when new technologies had transformed the meaning of courage on the battlefield.34 With the so-called Revolution in Military Affairs (RMA) starting in the 1990s and its promise of increased standoff capabilities for Western militaries, it is plausible that a similar sense of disorientation over the meaning of courage and cowardice in war had spread among policymakers and commentators in the United States. Shortly after the 9/11 attacks, talk show host Bill Maher called into question the moral coding of terrorist attacks as cowardly and decried Western standoff

30 “Memorandum for the President,” Jan. 25, 2002, Greenberg and Dratel, Torture Papers, p. 120. 31 John C. Yoo and James C Ho, “The Status of Terrorists,” Boalt Working Papers in Public Law, Paper 25 (Berkeley: University of California, 2003), p. 10. 32 Yoo and Ho, “The Status of Terrorists,” p. 10. 33 A day after the 9/11 attacks, for instance, President Bush stated “Make no mistake, the United States will hunt down and punish those responsible for these cowardly acts.”; “Bush: U.S. Military on ‘High Alert,’” CNN.com, Dec. 9, 2001, http://edition.cnn.com/2001/US/09/11/bush.second.statement/. 34 Gerald F. Linderman, Embattled Courage: The Experience of Combat in the American Civil War (New York: Free Press, 1987).

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tactics as cowardly instead; in doing so, he was perceived as breaking a political taboo and subsequently sacked by his network, ABC.35 Finally, the legal and political narrative on unlawful combatants after the 9/11 attacks borrowed some features from the nineteenth and early twentieth centuries' discourses on colonial warfare. This is most clearly reflected in the characterization of the Taliban as a “tribal” entity, diametrically opposed to the modern western conception of the state.36 The Bybee memorandum of January 22, 2002, for instance, argued that “the Taliban militia in essence represented only an ethnically Pashtun movement, a ‘tribal militia.’’’37 According to the memo, this was the primary reason why Afghanistan was to be classified as a “failed state” in which the Geneva Conventions did not apply and why the Taliban could not qualify as “quasi-regular” armed forces. Tribalism was incompatible with statehood. Against the background of this recourse to arguments stemming from discourses of colonialism, Frédéric Mégret has argued that it is plausible to draw a straight line from the Western imperialist image of the “savage” to the “war on terror’s” concept of the “unlawful combatant.” According to Mégret, because the exclusion of irregular fighters is firmly entrenched in the law of armed conflict, “the rhetoric of the Bush Administration is often merely mimicking the law. Indeed, the U.S. authorities’ case is often not a case to simply violate or do away with the law, as much as it is a characteristically strict, almost legalistic interpretation of the law.” 38 This argument is convincing, although it has to be broadened to encompass not only references to colonial discourses on irregular fighters, but also arguments that stem from the trajectory of the marginalization of the “irregular” more generally. In sum, the Bush Administration created a paradox in that it insisted on the novelty of the war on terror, which allegedly rendered the law of armed conflict obsolete, as the main argument for its treatment of irregular fighters, and yet it harked back to century-old legal arguments to justify the marginalization of irregular fighters as unlawful combatants. This seems to be an instance of what could be called double historical amnesia: it combined the erroneous argument that with the 9/11 attacks, war had changed beyond recognition with a complete unawareness of 35 Maher said: “We have been the cowards, lobbing cruise missiles from 2,000 miles away. That's cowardly. Staying in the airplane when it hits the building, say what you want about it, it's not cowardly,” quoted in Celestine Bohlen, “In New War on Terrorism, Words Are Weapons, Too,” New York Times, Sept. 29, 2001. 36 Patrick Porter summarizes the U.S. depiction of the Taliban as a predominantly “tribal” actor as follows: “The ‘tribal mind’ honors no agreements, respects no other principles outside the tribe, and has an irrational, instinctive mind of ‘warrior pride,’ not of Enlightenment reason,” Military Orientalism, p. 154. Porter goes on to argue that the depiction of the Taliban was an ‘“ethnographic fiction”’ on the part of U.S. commentators and policymakers. See Antonio Giustozzi, Koran, Kalashnikov and Laptop: The Neo-Taliban Insurgency in Afghanistan (London: Hurst, 2008), p. 47. 37 “Application of Treaties and Laws to al Qaeda and Taliban Detainees,” Greenberg and Dratel, The Torture Papers, p. 96f. 38 Frédéric Mégret, “From ‘Savages’ to ‘Unlawful Combatants’: A Post-Colonial Look at International Humanitarian Law's ‘Other,’” in Anne Orford, ed., International Law and Its ‘Others’ (Cambridge: Cambridge University Press, 2006), pp. 265–317.

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the historical rootedness of certain policies and legal arguments designed as a response to this new war. Even if the law of armed conflict is not outdated in the sense that it was, in fact, made with a view to countering the challenges posed by irregular fighters, as the previous section has shown, it does reflect approaches to the problem of irregular fighters that no longer fit the West’s strategic aims in the twenty-first century. As highlighted earlier, the power political and strategic concerns that impacted upon the marginalization of irregular fighters were the quest of major land powers for dominance in Europe in the nineteenth century and the desire of European colonial powers to shield their repressive colonial policies from legal interference in the twentieth century. These political and strategic concerns are outdated, although their legacy is deeply ingrained in the law. When debating the challenges posed by irregular fighters, it is important to remember that the law of armed conflict is burdened with this legacy. If it is naïve to assume that the law is outdated and inapplicable to wars in the twenty-first century, it is equally simplistic to argue that bringing the issue of the treatment of irregular fighters in the war on terror back into the remit of the law would have solved all problems. The charge frequently leveled against the United States and its Western allies is that their strategic interest dictated their legal approach to the war on terror. However, viewed from the perspective outlined above, this charge has to be turned on its head, in the sense that it was a particular exclusionary strand within the law of armed conflict, that influenced the West’s strategic and tactical approach to irregular fighters and its detention policies in particular. An approach geared to the strategic interest of stabilization properly conceived would have brought the treatment of irregular fighters in line with the aim of political stabilization. This would have meant relying on the more inclusive aspects of the law such as those outlined in Additional Protocol I. Moreover, it would have implied implementing additional protections as a matter of policy where legal protections are too weak or too vague. Of course, the law as such is not to blame for the disasters of the detention policy in the war on terror. It offers minimum protections for irregular fighters, but it leaves open the possibility of additional restraint and moderation. However, in the war on terror, policymakers and lawyers tried to hide behind the law in order to justify their disastrous strategic decisions. Finally, it is plausible to argue that the renewed emphasis on marginalizing irregulars is an indicator of a crisis of the identity of regular armed forces rather than a reaction to a perceived preponderance of “new wars” or “asymmetric” warfare. Most Western states’ armed forces underwent deep transformations after the end of the Cold War. Small professional armies supported by high-tech weapons systems, including robotics and drones, replaced the conscripted mass armies of the twentieth century. The concomitant challenges to the established social and political identities of Western armed forces are twofold. First, the increasing technologization of the battlefield raises questions about soldiers’ identities: is the UAV pilot operating drones thousands of miles away from the battlefield, in the safety of his or her bunker, actually a soldier or rather a technician? Has technology

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decreased the risk to twenty-first century armed forces to such an extent that core qualities within the traditional understanding of soldiering such as courage have come under pressure?39 Large parts of the Western armed forces may no longer need courage to perform in twenty-first century wars. Blaming terrorists for their “cowardice” hence is to a certain extent an externalization of these internal uncertainties. Secondly, Western armed forces, in particular infantry units, have become more professionalized than ever before in the modern history of regular armies. They are capable of performing at much higher professional standards than the citizen-soldiers of the twentieth century.40 Against this background, some scholars have predicted that the image of the soldier will gradually give way to that of the warrior. In contrast to the former, the latter is deliberately set apart from society, and his or her behavior is regulated by a separate set of norms, which Christopher Coker calls the “warrior ethos.”41 Others are concerned about this trend, in as much as the growing professionalization opens up a potentially politically dangerous gap between the soldier, who is no longer a citizen-soldier, and the rest of society.42 It also leaves open fundamental questions about his or her identity. The image of the warrior sits uneasily with his or her rootedness in Western democratic societies.43 Even more threatening to the identity of Western professional armies is the fact that despite their unsurpassed professionalism, they often fail to prevail against lesser, “irregular” opponents. In most cases, the main reasons for this failure are political rather than military. They often stem from the fact that few Western governments are willing to commit adequate resources to wars in the periphery of the international system. Yet, branding the irregular as an “unlawful combatant” offers a convenient way to deflect from this problem: if the latter prevails, it must be due to his or her unfair ways of fighting and not because of the Western mismatch between policy aspirations and actual military commitment. Paradoxically, in blaming the irregular for the problems Western armed forces encounter in twentyfirst century wars, their political masters made it even less likely that the latter will prevail in twenty-first century wars.

Christopher Coker, The Warrior Ethos: Military Culture and the War on Terror (London: Routledge, 2007), p. 130. 40 Anthony King, The Combat Soldier: Infantry Tactics and Cohesion in the Twentieth and Twenty-First Centuries (Oxford: Oxford University Press, 2013). 41 Coker, The Warrior Ethos. 42 Hew Strachan, “Heroic Warfare and the Problem of Mass Armies, France 1871–1914,” in Sibylle Scheipers, Heroism and the Changing Character of War (Basingstoke: Palgrave forthcoming, 2014). 43 Andreas Herberg-Rothe, “The Democratic Warrior and the Emergence of World Order Conflicts,” in Sibylle Scheipers, Heroism. 39

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Conclusion This article has argued that the West’s treatment of irregular fighters in the war on terror was not an instance of political and strategic interests usurping the law, as has frequently been claimed. Rather, the West’s treatment of irregular fighters was firmly rooted in century-old legal arguments about irregular fighters. However, these arguments reflect the historical strategic interests of those states that were particularly influential at the time of the codification of the law of armed conflict. They often do not match the West’s strategic interests in twenty-first century conflicts. Moreover, they are influenced by transformation processes in the identity of the West’s regular armed forces. Against this background, four recommendations are offered to those in charge of formulating Western strategy in potential future armed conflicts involving irregular fighters: x

Rethink the treatment of irregular fighters from the perspective of the desired end state of an armed conflict. Too often the treatment of irregular fighters has been guided by the notion that irregular fighters pose a new kind of threat. This is not the case—irregular fighters have played a large role throughout the history of modern warfare. What is new, however, is that the West’s aim in wars of the Afghanistan or Iraq type is political stabilization rather than unconditional surrender or quelling colonial rebellions. The treatment of irregular fighters needs to be in line with the overall objective of stabilization in order to enable the coherent implementation of military strategies.

x

Discriminate between different types of irregular fighters. One of the major downsides of the law of armed conflict’s approach to irregular fighters consists in its negative definition of irregular fighters as all those who do not meet the criteria for lawful belligerency. In other words, the law of armed conflict in its current customary form (based on the Geneva Conventions) does not distinguish between leaders of terrorist organizations and low- to mid-level militants. From the point of view of military strategy in stabilization operations, this is inadequate: while the former need to be detained and prosecuted where possible, the latter will have to be reintegrated into the political process.

x

Invest more in rebuilding the police and the judiciary in target states. Functioning rule of law structures help absorb those ringleaders who cannot be integrated into the political process. Concerns over the viability of these structures were the main stumbling block of the West’s exit strategies in both Iraq and Afghanistan. Leading by example in the area of rule of law structures will help improve the situation in target states.

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x

In the absence of a new legal framework, offer more protections to captured irregular fighters who do not pose a persistent security threat to the West as a matter of policy. While efforts at clarifying the legal framework regarding the treatment and detention of irregular fighters such as the Copenhagen process are under way, progress will remain slow and the underlying issues emerging from different legal obligations among major Western actors (Geneva Conventions vs Additional Protocol I) will persist. In order to bring detention policies in armed conflicts of the Afghanistan or Iraq type in line with stated strategic aims, the West does not have to wait until a new legal framework has evolved. Rather, more advanced protections could be granted as a matter of policy, as is already common practice, for instance, in the field of targeting and the avoidance of civilian casualties.

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