On Thursday, federal judge Richard J. Leon ordered the release of five Guantanamo Bay detainees, on the basis that there was insufficient evidence that the detainees in question met the definition of an “enemy combatant”. The decision has added further ambiguity to the concept of enemy combatancy – a notion that, prior to the war on terror, seemed relatively straightforward and uncontroversial. In the post-9/11 world, however, the term “enemy combatant” has acquired several different meanings, some of which are at odds with its traditional historical meaning and with the law of war itself.

Discussions about the modern US concept of enemy combatancy have tended to focus on a number of discrete issues, including the rights that should be afforded to enemy combatants, who should have the power to determine whether a person is an enemy combatant and whether this power should be subject to review. Although all of these questions are important questions to ask, they assume the fundamental legitimacy of the concept of enemy combatancy, as the term is used today. When one digs a little deeper, the idea of an enemy combatant not only becomes difficult to pin down, but also shows itself to be problematic in terms of international humanitarian law.

Traditionally, an enemy combatant has been defined and understood as a member of the armed forces of an enemy state, who may be properly detained under the laws and customs of war. Since 9/11, the term has acquired an amorphous meaning in both the popular and political lexicons, and is often used interchangeably with the term “unlawful combatant”. According the General Counsel of the Department of Defense, William J. Haynes, unlawful combatants are combatants who “do not receive prisoner-of-war (POW) status and do not receive the full protections of the Third Geneva Convention”. They are, in other words, combatants who lack legitimacy, who have no legal right to take part in hostilities.

Despite William J. Haynes’ references to the Geneva Conventions, the concept of an unlawful combatant finds no support in international humanitarian law. The Geneva Conventions make no distinction between legitimate and illegitimate combatants – the only distinction drawn is the fundamental distinction between civilians or those otherwise rendered hors de combat, on the one hand, and combatants on the other.

Although in the short-term, the introduction of a further category of unlawful combatants represents a convenient way in which the executive may expand its power whilst appearing to stay within the confines of international law, the consequences of doing so may ultimately work against the interests of the US government. In excising a potentially broad class of people from the protection afforded by the law of war, whilst simultaneously justifying its actions by reference to that law, the US government is sending mixed messages to the global community about its willingness to play by the rules of the game. In doing so, the US government ultimately damages its moral standing in the war on terror. Although the legitimacy and credibility of the government’s actions may seem an abstract and secondary consideration when weighed against the hard realities and necessities of the counterterrorist effort, this effort is necessarily one which requires the co-operation and therefore, the approval, of other major states. In the long-term, the damage caused to the government’s counterterrorist agenda by maverick interpretations of international law may outweigh the short-term benefits obtained by the detention of unlawful combatants and the curtailment of their rights.

In light of the ambiguity surrounding the status of both unlawful and enemy combatants, both concepts deserve and require greater scrutiny and clarity as a matter of relative urgency. Although this is primarily a task for federal judges (and judicial definitions of enemy combatancy have to date displayed an effort to provide a fair and workable definition, taking into account the interests of both detainees and the government), it is important that the new administration makes clear its approach to enemy and unlawful combatants. One approach may be to eschew the use of the term “unlawful combatant” all together and to return to the accepted international law position, which exempts only a very limited class of people (such as spies) from certain protections under the law of war and, even so, does not categorise such people as “unlawful”. However, if the new administration is to maintain the distinction between lawful and unlawful combatants, it might still mitigate the misdeeds of the former administration by providing a specific and narrow definition of “unlawful combatant” and taking a more liberal view of combatants’ rights, including affording unlawful combatants the most basic protection of Common Article 3 of the Geneva Conventions. The war on terror, we are often told, embodies a new type of warfare – however, at base it remains a war, and participants on both sides must abide by the law of war.

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