WHY THE BUSH ADMINISTRATION IS CORRECT TO CLASSIFY TERRORISTS AS ILLEGAL COMBATANTS AND WRONG NOT TO TRY AND EXECUTE THEM

“Illegal combatants” is an issue on which the Bush administration has taken much heat in the last four years. Oddly enough, refusing Islamist terrorists POW status is legally sound though they would have spared their critics all room for legitimate complaint if the Bush administration had set up tribunals to process al Qaida captives individually and then label them instead of doing it through a blanket proclamation. Fighting out of uniform is a war crime, punishable in and of itself though this is not widely known or understood.

A scholar asked me the following question on H-Diplo recently during a discussion on ” Fighting out of Uniform”:

“I would like to ask for the reference in the international law of war for his statement that not wearing a uniform is “punishable because it puts the civilian population at risk for reprisals.”

To which I responded, more methodically than usual, because I really want to try to put this issue to bed:

“Putting the civilian population at risk for reprisals was,in my view, merely the self-evident reasoning behind regarding fightingout of uniform as a war crime. On the act of fighting out of uniformitself, the Laws of War,in theory and practice, deal with out of uniformcombatants primarily as spies and saboteurs. The logic of thetextual definition of a spy implicitly assumes that espionage is a crime:

Laws and Customs of War on Land (Hague IV) 1907

Article 29:

A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicatingit to the hostile party.

Thus, soldiers not wearing a disguise who have penetrated into the zoneof operations of the hostile army, for the purpose of obtaininginformation, are not considered spies. Similarly, the following are notconsidered spies:

Soldiers and civilians, carrying out their mission openly, entrusted with the delivery of despatches intended either for their own army or for the enemy’s army. To this class belong likewise persons sent in balloons for the purpose of carrying despatches and, generally, of maintaining communications between the different parts of an army or a territory.

Article 30:

A spy taken in the act shall not be punished without previous trial.

The implicit assumption in Article 30 is that espionage during war timeis a crime and that accused spies should be given a fair trial and notsimply executed summarily. To be a spy, you must be out of uniform andnot in it, as Article 29 makes clear

In Ex Parte Quirin, the Supreme Court of the United States ruled alongthese very lines that belligerency out of uniform violated the Laws ofWar – i.e. that it was an offense unto itself and not merely a technical ineligibility for POW status:

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