Jurist has an interesting article on the need of the Obama Administration to redefine the concept of “enemy combatant”. The article picks up a discussion that has been going on for the last couple of years and which has been characterized by a clash of different schools of dealing with international terrorism from the perspective of international law.
In the article Gabor Rona, who is International Legal Director of Human Rights First, underlines the correct distinction between a combatant (as an individual who is privileged to participate in hostilities and is therefore, always targetable and always detainable without criminal charge) and civilians (who directly participate in hostilities without a legal privilege to do so and who may also be targeted and may also be detained without charge under applicable domestic law). He rightly underlines that civilians who participate in hostilities do not thereby become “combatants” but instead remain civilians. According to Rona, diluting the distinction between civilians and combatants places both categories of individuals at unwarranted risk and undermines the main purpose of the laws of war, namely the protection of the civilian population. The central statement of the article is that the notion of “”enemy combatant” as a trigger for detention authority must be retired”.
As such the article can be seen as a response to executive orders of US President Obama on the establishment of task forces to study how to close the Guantanamo detention camp and to reassess the legal frameworks for the future detention of unspecified classes of persons. Interestingly enough, and this probably must have been disappointing for Rona to learn, the Obama administration seems to be unwilling to (yet) break with the Bush administration’s understanding and usage of the notion of “enemy combatant”. According to a recent court-filing from the Justice Department, the new administration agrees with the Bush administration that detainees at Bagram Airfield in Afghanistan, where over 600 detainees are being kept, cannot use US courts to challenge their detention, hence in essence supporting the Bush administration’s notion of an “enemy combatant” (see the report in the NY Times and AP). It should be underlined however, that the filing is unlikely to already give an accurate picture of the overall approach of the new administration to international humanitarian law.