Laws of War and Terrorists

Here's a fairly long article on the legal issues surrounding terrorists/insurgents as are being encountered today by the US military. The article is from PARAMETERS.

Terrorists are gaining an astonishing legal edge over US and other armed forces deployed against them. The present trend promises to burden future generations, as well as our own, with an ad hoc, damaging legal framework sure to thwart counterterrorist operations and even furnish inducements for those tempted to join the terrorist ranks.

The long-term import of recent trends can'’t be overstated. The United States is surely- —and not so slowly-—bestowing legal status and privileges on members of terrorist organizations that have no precedent in the 3,500-year recorded history of warfare. Terrorists are acquiring legal recognition and support of a kind unavailable to members of US and other national armed forces, and for that matter unavailable to insurgents during civil conflict as well. (There are early intimations that the United States may end up unilaterally bestowing similar status and privileges on the members of opposing state forces as well as terrorist organizations.) The notion that opposing forces will ever make these unique legal privileges reciprocally available to the US armed forces simply doesn'’t warrant serious consideration.

This troublesome trend stems from uncertainty over how the law of war should be applied to meet terrorist threats. Though terrorism presents unfamiliar legal issues, these aren't quite as novel as they seem, and we could devise a more pragmatic approach. There is a way forward, but time is working against the establishment of an effective, national-security-focused wartime strategy for counterterrorist action. Steps need to be taken now to ensure the survival of a realistic, useful legal framework that meets these emerging challenges.

The article is pretty good. They discuss why the terrorists/insurgents are illegal combatants under the Geneva Conventions as well as international law and the laws of war.

A couple of clear perspective quotes:

This decision stems from the fact that military operations against terrorist organizations havenÂ’t been firmly placed within a law-of-war frame-work. Most US judges (like most of their counterparts around the world) are unfamiliar with the law of war, which has been applied infrequently in the course of American history. And, when it has been, decisions on the scope of application almost always have been made by the executive branch.

And

The present trend is beginning to arm captured members of opposing forces with a unique method of waging war even after capture. Access to lawyers and civilian courts to challenge their capture, complain about conditions of detention, or force second-guessing on executive branch decisions as to when or how administrative boards may consider matters affecting wartime captives could become highly disruptive. Such measures can force the allocation of resources and personnel to build and maintain administrative case files, distort battlefield prisoner handling procedures and tactical intelligence priorities in order to assemble evidence for newly invented legal procedures, and require the military services to pull or divert personnel from deployment to provide testimony and assist the government in litigation.

The context laid out in the article does make this whole scenario disturbing.