Wednesday, September 27, 2006

Dapo Akande responds to Geoff Corn and me on unlawful belligerency as a separate crime

Dapo Akande, fellow at St. Peter's College, Oxford U, responds with a thoughtful comment on whether unlawful belligerency is a crime in the law of war separate from any unlawful acts committed in the course of belligerency. He argues that it defines criteria to be or not be counted a POW, but that it does not define a separate crime. I've pulled his comment up into this separate post - and thanks very much for posting it. I will try to respond later, and am interested in further thoughts. Professor Akande's comment:

I disagree with Geoff and Ken's assumption that "unlawful belligerency" is a distinct international law crime or violation of the laws and customs of war when it occurs in international armed conflicts.

To say that a combatant is an "unlawful combatant" is simply to say that the person does not meet the criteria set out in Art. 4 of GCIII and that this person does not benefit from the privileges of lawful combatantcy. However, failure to meet these criteria is not by itself a violation of the laws of war. What it does mean that the person can be prosecuted for the ordinary crimes which any combatant would otherwise be prosecuted for if not entitled to combatants immunity/privilege. Thus, an unlawful combatant can be prosecuted for murder, destruction of property and other acts of violence which are lawful under the laws of war. Now, if a State were to make it an offence for a person to fight without fulfilling the conditions for lawful combatancy international law does not prohibit that. However, that would not be a violation of the laws and customs of war. It is a domestic crime but one that international law allows prosecution of.

Given what I have said above, it follows that unlawful belligerency cannot be a violation of the laws and customs of war in non-international armed conflict though states are free to prosecute for it. However, more importantly, the concept of unlawful belligerency is redundant in non-international armed conflicts as States are entitled to prosecute any combatant on the other side. There is no combatants immunity in such conflicts so their combatantcy is neither lawful nor unlawful under international law.

Finally, the US Supreme Court in Ex Parte Quirin was similarly confused on the concept of unlawful combatancy when it stated that: “Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. 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.” While, as stated above, there is nothing to bar a state from prosecuting a person for acts which render his belligerency unlawful, this is not the main point of the concept. The main point is that such a person is subject to prosecution for acts which are lawful under the laws of war.

Dapo Akande, St Peter's College, University of Oxford
(Notice the copy of Henry Steiner and Philip Alston's human rights casebook on the bookshelf in the photo!)


Anonymous said...

I particularly appreciate the "redundancy" analysis in the context of a non-international armed conflict. It is another logical basis to conclude that "unlawful belligerency" is simply not a "war crime" in the context of such conflicts.

However, I am not sure the Quirin opinion is as confused as is suggested. It seems to me that a critical portion of that opinion was where the Court distinguished the charge against the defendants from those in the Milligan case. According to the Court, Milligan "was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents." The "penalties" the Court was referring to were not derived from application of domestic law, because the charge and specification the Court was analyzing alleged a violation of the laws and customs of war.

It therefore seems to me Quirin was an endorsement of the proposition that operating as an "unlawful belligerent" in the context of an inter-state conflict, in which personnel are capable of availing themselves of the beneficial status of "lawful belligerent", was a violation of the laws of war subject to trial by a military commission granted jurisdiction over such violations.

It is certainly frustrating that the Court did not provide much support for this proposition. Instead, the Court seemed to simply adopt the government theory of criminal liability, which was based not on the commission of any specific belligerent act, but instead on presence within the zone of war with the purpose of engaging in such acts while not in uniform ("It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform--an offense against the law of war."). Other commentators have endorsed the viability of this offense, but to my knowledge it has always been considered within the context of inter-state conflict.

I therefore continue to believe that neither precedent nor state practice provides support for the wholesale importation of this offense into the realm of non-international armed conflict.

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