The Enemy Combatant And Laws Of War

Designating prisoners as ‘enemy combatants’ or ‘unlawful combatants’ became a core part of America’s post 9/11 detention regime. The new class was necessary to accommodate the Bush administration’s determination to keep the prisoners captured in the battle fields of Afghanistan, or renditioned into USA custody from elsewhere in the world, away from the prying and demanding eyes of a lawful judicial process. It was also the neologism used to avoid a need to adhere to the Third and Forth Geneva Conventions. As combatants, prisoners are subject to military detention and do not have to be charged and tried, but they are protected by the protocols of the Geneva Conventions and customary laws of war. As suspected ‘terrorists’ and other criminals, they are given the protection given to accused criminals. The new category of ‘enemy combatants’ however allowed the US administration to use a sleight of language to avoid their responsibilities as defined by international and domestic law. By arguing that the prisoners did not fall under the existing structure of the rules of law, or the customary laws of war, the administration was able to pursue practices that are clearly and explicitly defined as illegal, inhumane and unjust including indefinite detentions, renditions, and the use of torture and coercive techniques.

The Bush administration used a very broad and all-encompassing definition of ‘enemy combatant’, sweeping into its prisons many peripheral or unnecessary individuals. A Seton Hall Law School study in 2006 revealed that only 8% of those held at Guantanamo were described as Al-Qaeda fighters, and 40% had no definitive connection with Al-Qaeda at all. These estimates were based on US government data itself. The same study also found that over 55% of those at Guantanamo had never committed any sort of hostile act against the USA, and that nearly 86% of those imprisoned had been handed over to the Americans by either Pakistan or the Northern Alliance. Offering bounties were a major means for the American’s to find their suspected ‘terrorists’ and leaflets promising tremendous wealth to anyone who would hand over suspected Al-Qaeda and Taliban fighters, were distributed all over Afghanistan.. Donald Rumsfeld bragged that these leaflets decorated Afghanistan ‘…like snowflakes in December in Chicago.’ In fact, even Pakistan’s then military dictator, General Pervaiz Musharraf, boasted that Pakistan had handed over hundreds of people to the CIA for reward money.

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