Transcending, but Not Abandoning, the Combatant-Civilian Distinction: A Case Study
16 Pages Posted: 8 Sep 2011 Last revised: 6 Jan 2013
Date Written: September 7, 2011
The distinction between combatants and civilians determines who can be prosecuted for using force, who can be subjected to long-term preventive (as opposed to punitive) detention, and who can be killed even when they do not pose an imminent threat. The traditional law of war uses the first issue as the key to understanding the second two. In doing so, it relies on a basic legal symmetry. Those who are privileged to use military force cannot be prosecuted for having done so (at least as long as they respected the legal limits on the use of military force), but they can be fought with the basic tools of fighting a war: detaining or killing the forces on the other side. Meanwhile, those who are not privileged to use force may be prosecuted if they use it, but they may not be fought using the normal tools of war fighting. Recent threats from al-Qaeda and affiliated terrorist groups have put pressure on that connection. Many argue for a more functional definition of a combatant, such that if a person is part of a group that uses military levels of force, then he is a combatant. The conflict between these two models - the traditional law of war model and the functionalist model - is at the heart of the recent five-to-four decision of the Fourth Circuit in al-Marri v. Pucciarelli. Both models, however, are inadequate. The functionalist approach is insufficiently respectful of basic civil rights, and the traditional approach is too dismissive of the problems presented by using traditional criminal law techniques when fighting enemies who use military levels of force.
In this paper, I describe the two sides, as developed in al-Marri. I then explain why each is failing to come to terms with important concerns that the other treats as central. I then argue that this impasse can be avoided if we transcend the combatant-civilian distinction. In saying that we should transcend the combatant-civilian distinction I do not mean to reject the distinction altogether. I argue that the traditional combatant category, at least as applied to aliens, successfully marks out people who can be justifiably be subject to long term detention without trial. My point is that the category of combatants should not be taken to arise in some sort of fundamentally different legal regime. Rather, the law with regard to combatants should be viewed as grounded in a deeper liberal, constitutional legal order that is committed to respecting autonomy. Within that deeper legal order, some, but not all, suspected members of groups like al-Qaeda can justifiably be detained for long periods of time without trial. Ultimately, the most important questions, as I have argued at length elsewhere, are not limited to whether an individual is a combatant in the traditional sense; they also include (a) whether he can be held accountable for any future use of force against the state, and (b) whether the detaining state has an obligation to release and police him if it cannot or chooses not to try to convict him for a past crime.
Keywords: Combatant, civilian, detention, al Qaeda
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