The POW in a Time of Terrorism:

The POW in a Time of Terrorism:

An Investigation into Moral Status

Michael W. Brough

CPT, US Army

Instructor of Philosophy, USMA

Although the issues have existed since the first terrorist acts, recent events have emphasized the ambiguity of the term Prisoner of War (POW).[1] Thinkers have written extensively about what, with respect to POWs, is permitted and what is required. Codified law and moral exploration have yielded insight into such questions: in a negative sense, captors may not use POWs for medical experiments; they may not torture POWs for information (generally speaking, of course—there are utilitarian arguments to be made against the prohibition). Positively, captors must provide for the POW by, for example, supplying adequate food, water, and clothing. The POW takes on special rights, and this set of rights is distinct from the set possessed by either the combatant non-prisoner or the noncombatant prisoner. This is a juridical truth, even if there are some who would dispute its moral accuracy.

The less developed aspect of the body of POW insight involves who rightfully belongs in the class of potential POWs, or who deserves POW rights when captured. Some situations are unmarred by ambiguity, such as when a properly-identified soldier is captured in a declared war between two belligerent states. The two world wars of the last century allow such neat demarcation. Undeclared wars complicate the question, as do atypical soldiers (those who wear no uniforms, for example, or who do not act under a firm military chain of command). The use of terrorist tactics by both state and non-state belligerents has further blurred the lines, as the post-9/11 American “war on terrorism” has revealed. There exists no clear demarcation between those who deserve POW rights and those who do not, and this void has contributed to significant turmoil in the prosecution of a struggle against terrorism.

Consider the cases of captured enemy Afghan fighters in the US “war against terrorism.” That the Bush administration first refused, then accepted the fighters as POWs manifests this uncertainty, and its use of terms such as detainees and unlawful combatants to refer to captured Afghan soldiers suggests the difficulty of labeling them either criminals or POWs. Even if the members of Afghanistan’s Taliban military acted under the state’s aegis (and thus might qualify for potential POW status), what would be the category of the Al Qaeda fighter who might not claim the same immunity? To further cloud the issue, when a US Justice Department official stated that “dirty bomb” suspect Padilla was to be held, the justification was that Padilla was “an enemy combatant.” If he were truly an enemy combatant, Padilla might, it seems, have a claim to POW treatment. So, then, might other terrorists involved in an ideological struggle. (To extrapolate: If the term war on terrorism is not a misnomer but rather an accurate description, then perhaps the combatants on both sides should be afforded POW rights that accompany any war.) My goal in this paper is to offer some ideas for sharpening the definition of POW. The ideas are incomplete, and they suffer in their current form from the same lack of clarity they seek to overcome.

Assumptions

At the outset, I will reveal three key assumptions that serve as a foundation for my argument. While disavowal of these might very well result in rejecting my theory, I think these are widely granted premises that gird much of modern just war theory. First, I will assume a rights-based foundation for the war convention. This does not mean, of course, that other concerns are never considered; cogent arguments have been made for utilitarianism[2] and natural law[3] as substantive bases for it. Still, it seems that rights talk has colored most recent just war thought,[4] and it has been convincingly argued, too, that the war convention generally accords with a theory of rights better that any other ethical theory.[5] That is, it seems that there is good reason to use it, and it seems, too, that it is already what we do in fact use.

Second, I will assume a jus ad bellum-jus in bello distinction that considers the two areas logically separate. The import, for my purposes, is that soldiers of all belligerent nations are morally equal (unless some are guilty of a jus in bello violation of the war convention). The jus ad bellum wrongness of a combatant’s cause does not permeate his moral status: his country’s aggression does not taint his personal morality, and he bears no guilt for it. My third assumption stems from the second: that the rules we (as moral investigators) decide on are ones that we will embrace in all instances and on all occasions. Like the rules of any game, the rules of war are useful only when the players obey them. As in any game, adherence to the laws of war will sometimes be clearly deleterious to the actor’s cause. We should frame our discussion with this principle in mind: that accepting a rule signals our willingness to apply the rule both to ourselves and to the enemy, both when it is advantageous to us and when it is not.

There are arguments to be made against these assumptions. Some have already been made. I do not attempt here to refute, but instead say that if the reader finds these three assumptions convincing, he will find force in my argument.

The Codified War Convention Today

The question of whether a fighter is a potential POW is, to large extent, a matter of legitimate combatancy.[6] War ethics prefers a dualistic approach to combatancy: either one is a combatant, or one is not. Although there are instances when one may cross over between the two realms, there is no interstice, and there are good practical as well as moral reasons for continuing the delineation.[7]

Current war convention relevant to POWs is largely recorded in the Geneva Convention III Relative to the Treatment of Prisoners of War (August 12, 1949). According to that document, fighters become POWs when they become hors de combat through surrender, sickness, or injury. The Detaining Power must respect and protect POWs, and the Geneva Convention (GC) commits Detaining Powers to furnishing sufficient medical care, hygiene, food and water, wages, and opportunities for recreation. The GC ostensibly seeks to separate POWs from their combatancy—to exclude them from the fight in a humane manner, regardless of their causes—and to recognize their rights as humans. The GC allows a Detaining Power to punish POWs only for actions that are punishable for its own soldiers, as well. Since no state would punish its soldiers for killing its enemies, POWs are immune from the legitimate killing of enemy soldiers they performed in the course of armed combat.

The benefits of POW status are significant, then. This immunity the GC grants POWs contrasts starkly with the alternative. Captured combatants who are not POWs are devoid of GC protection, and they are at the mercy of the Detaining Power. The Detaining Power may agree to treat the captives as if they were POWs (as President Bush declared he would do for Afghan detainees), but they are not bound by international agreement to do so, and a Detaining Power may instead prosecute the captives for their crimes. But which fighters are potential POWs? Article 4, in particular, concerns who is included in the set:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.[8]

These first three categories are the ones that will be most germane to my discussion. The others deal with accompanying civilians, civilian crews of air and watercraft, and participants in a levee-en-masse.

It is worth noting that the Convention is binding only when the belligerents are parties to it or when the belligerents accept its terms. The Geneva Convention does not appear to bind a belligerent nation when it is engaged in conflict with a nation (or other collection of individuals) that is not a party to the Convention and rejects its provisions. Regardless, there is a feeling that we as combatants are bound not just by what our opponents do, so that if they break the rules, we can, too. If there is really a moral truth about the matter, then it seems we should make significant efforts and bear some costs to do right, even when the enemy refuses to.

There are two intuitions at work here. The first recognizes the importance of a morality that takes as its foundation more than the conduct of surrounding actors (such that my prohibition against murder only remains in place as long as no one attempts to murder me). There are at least some moral rules that bind regardless of how one (individual or state) is treated: the proscription of torture is a good example, and proscriptions against the cruel and unusual punishment of criminals (even the perpetrators of hideous crimes) reflect the intuition.

The second emphasizes individual rights. Even though a combatant fights for an authority that refuses the war convention and its jus in bello rules, he is not personally responsible for that refusal, for although he might have had some input, it is misleading to say that the refusal is his. Guilt only adheres when he is guilty of personal infractions of the war convention. To punish all enemy soldiers, solely because their political authority rejects the war convention and prior to establishing the personal culpability of each, is to punish the potentially innocent.

The war convention seeks to stem unnecessary violence (or at least to protect human rights in the midst of widespread violence), and it governs more than simply declared war between the regular forces of recognized nations. Certainly, the war convention pertains in undeclared international conflict (as in Vietnam and Korea) and in some intra-national conflict, as well (e.g. insurrections in Cuba and Mexico, as well as the American Civil War). But all aspects of the war convention may not apply in all cases of conflict, and POW status may remain dormant in some instances of interpersonal or international violence. There are those who perpetrate violence who ought not be insulated from repercussions by POW status, and I think examining those categories of combatants may be helpful in determining the limits of POW status. Common intuitions deny POW status to some combatants, and these commonly agreed upon categories will clarify our ideas about legitimate combatancy.

In considering the problem (or, stated another way, the class of legitimate combatant), I will seek to propose three conditions a belligerent fighting group must meet in order to deserve potential POW status. All bona fide members of the group should, I think, be considered potential POWs prima facie, even though subsequent investigation may discover war crimes that make trial and punishment justified. The three conditions, which I will consider in turn, are military command structure, observance of the war convention, and representativeness.

Military Command Structure

Martin van Creveld offers two responsibilities of command in his seminal Command in War. The first is logistical; more to our point, the second concerns enabling “the army to carry out its proper mission, which is to inflict the maximum amount of death and destruction on the enemy within the shortest possible period of time and at minimum loss to itself.” [9]

As many other military ethicists would, I disagree with van Creveld about what the army’s “proper mission” is—generally speaking, it is not inflicting death and destruction, although that may be the means required to attain the end. I instead prefer a definition that emphasizes the end of a better peace: “The objective of combat is the incapacitation of a combatant from doing what he is doing because he is this particular combatant in this particular war; it is not the killing of a man because he is a man or because he is this particular man.”[10] With that in mind, van Creveld is quite right when he notes that military command “enables the army to carry out its proper mission”—command should facilitate operations that are proper within the scope of war. Concomitant with this responsibility to enable is the responsibility to disable the army from carrying out improper missions—those that are violations of jus in bello, for example.

With this in mind, I argue that an organization comprised of legitimate combatants must have at least the rudiments of a military command structure. The reasons for this are several. One practical one is that commanders in a military command structure can ensure (imperfectly, but with some acceptable amount of success) the cessation of hostilities during periods of truce or armistice. Loosely affiliated groups without commanders will typically lack such an ability. If a group does not possess the ability to control the violence it propagates well enough to cease fighting when its leader has agreed to stand down, then it lacks a requisite aspect of legitimate combatancy.

The same principle determines a fighting organization’s commitment to fighting according to the war convention; without commanders that enforce the rules of war, the frenzy of battle can overcome some soldiers, resulting in war crimes. In order to guarantee the rights of both combatants and noncombatants in their proximity, military units require the strong discipline that can result from a military command structure. A unit devoid of command structure will remain unable to secure others’ rights, and to exercise violence without such an assurance is a moral wrong: it is to invite its members to be criminals, and the organization is akin to a band of brigands rather than a military unit.

The military command structure also lends itself (or at least may lend itself) to a transition to diplomacy. At the halt of armed conflict, the commander can order his unit to defer to political leaders. The commander, then, leads his unit in standing down under the leadership of the diplomat (who might well be the commander himself: examples abound, from George Washington to Fidel Castro to Laurent Kabila). The key point here is that the military struggle has, as its end, a superior peace. A centralized military control allows a fighting force to narrowly attain that goal, or abort it with restraint.

Although the existence of a military command structure does concern the size of a force (there can be no command structure in a single actor, for example), I will postpone the subject of how large a military force must be in order for its members to qualify as legitimate combatants. The issue is a significant one, though, for my criterion of representativeness, and I will discuss it there.

Observance of the War Convention

Groups of legitimate combatants fight fundamentally in accordance with the jus in bello confines of the war convention. My purpose in this criterion is to determine whether a fighting group commits itself to fighting war both fairly (that is, mindful of legal restrictions with respect to its competitors) and humanely (with respect to the human lives, both combatant and noncombatant, it will risk). The criterion is vague, and necessarily so. There are wartime actions that are morally ambiguous (how can a commander prove that the doctrine of double effect justifies the deaths of these civilians?), and we should enter into such discourse with moral humility—perhaps the answers to some questions simply are unknowable for finite minds.

But there are also wartime actions that possess unequaled moral clarity, and fighting groups that adopt the violation of human rights as standard procedure deserve moral condemnation. They also surrender their legitimate combatancy—that seems appropriate for fighting organizations that, for example, target noncombatants as a matter of course. Still, I am reluctant to attach the legitimate combatancy of a group to the group’s conformity with the war convention—the path is heavily mined. Here are a few of the dangers of attaching observance of the war convention to legitimate combatancy:

First, ascertaining a military’s commitment to the war convention might be incredibly difficult for many reasons. In the absence of a strong senior commander, different subordinate commanders could be variously committed to the war convention. Whether the violations of the one subordinate unit impinge on the legitimate combatancy of the other I am not prepared to say, although I would think it odd to deny POW status to the latter solely because of the former’s infractions.

Too, there seem to be degrees of infraction. I refer not to the number of incidents, although that may be an obfuscating factor as well. We cannot limit legitimate combatancy to morally perfect militaries. I question whether we would find one, and that has little to do with the overarching tenor set by a military. Many fighting organizations committed to the war convention have suffered a My Lai Massacre; that fact should not disqualify them from legitimate combatancy. A more perplexing question might be whether some infractions are worse than others: does a fighting organization lose its legitimate combatancy when it stockpiles biological weapons? When it uses them on enemy troops? Or when it uses them on the enemy’s civilian population?

More troubling, though, is that an insistence on war convention observance threatens to undermine the jus ad bellum-jus in bello distinction Just War theory holds as basic. Allowing legitimate combatancy to hinge on a military’s (or, by extension, the state’s) attitude to such issues may involve conflating the two separate aspects. The Serbian army, under Slobodan Milosovic, supplies an example: the state military’s policy of ethnic cleansing might have constituted both a jus ad bellum for humanitarian intervention and a jus in bello reason for disallowing potential POW status for Serbian soldiers because of the same Serb policy of ethnic cleansing. In this circumstance, then, one could cogently argue that the Serb soldiers (even the morally upright who were not complicit in ethnic cleansing) would not be isolated from the injustice of their cause by POW status.

Although the criterion presents risks, I think is can be useful. I intend for the criterion to exclude terrorists, for example, from potential POW status. Terrorists and terrorist organizations do not argue publicly for their inclusion in the realm of legitimate combatants, but they quite often place their struggles in the realm of war. Take, for example, the Hamas Covenant of 1988, in which the group casts its endeavor as a “struggle against the Jews”: “The [Islamic Resistance] Movement is but one squadron that should be supported by more and more squadrons from this vast Arab and Islamic world, until the enemy is vanquished and Allah’s victory is realised.”[11] Later in the document, Hamas reveals its slogan: “Allah is [the Movement’s] target, the Prophet is its model, the Koran its constitution: Jihad is its path and death for the sake of Allah is the loftiest of its wishes.”[12] Osama bin Laden has used similar war-talk, but so have other terrorists, including the Aum Shinrikyo cult in Japan and American white supremacist groups such as Christian Identity.[13] Despite seeming assertions to the contrary, terrorists (as individuals or in groups) are not legitimate combatants, and the reason is not their lack of state sponsorship (I shall cover that momentarily) or their small size. The reason, I think, is rooted in their dismissal of the war convention (and specifically in their practice of targeting noncombatants).

Although I intend to limn some criteria narrowly applicable to nonstate actors, I wonder whether this condition should be applied to state soldiers, as well. It seems odd to me that state-sponsorship should afford POW status to an army that adopts jus in bello infractions as a way of doing business. An insurrection that meticulously avoids noncombatant deaths seems much more worthy of potential POW status than does a state army that encourages or orders the rape or torture of civilians as a means of keeping discipline among the populace.

Representativeness

I will consider a class that might seem easily dismissible: those who conduct violence individually for personal gain—those who harm or threaten harm for money, power, or similar end. These people violate important rights, and they are unambiguously criminals, and (regardless of what we determine the proper treatment of criminals to be) they are undeserving of POW status. They have committed crimes, and they as a group have no reason to expect immunity from the consequences. Larger groups with similar motives and tactics fall into a similar category: These groups are instantiated in criminal gangs and organized crime, and we do not extend to them POW rights when they are captured.

What places these criminals outside the realm of potential POWs? One possible answer is self-interest: perhaps acting singly or as a group for one’s own direct personal benefit disqualifies him from potential POW status. This does seem to conform to some held beliefs—drafted soldiers very often do not choose war and they do not fight for their own benefit, and so deserve POW status as sympathetic “‘poor sods, just like me,’ trapped in a war they didn’t make.” [14] Sidney Axinn makes a similar distinction between criminals and soldiers involved in legitimate military action: “Robbers act for their own personal goals; the military acts for the goals of someone or something else.”[15] This point does not get the distinction quite right, though. Robbers do usually act for personal benefit, but personal benefit is not a necessary component of robbery. And while we think that the criminal might be exculpated if his fillip is utterly devoid of self interest (e.g. Robin Hood), we do not always exculpate him. The Oklahoma City bombing was such an ideologically motivated (and in that way, selfless) attack, yet I think few would have granted Timothy McVeigh the immunity from his actions that POW status confers.

McVeigh does not qualify for potential POW status primarily due to his nonconformity with the war convention, but a second reason he does not qualify is that he is not representative of a viable political grouping of people.[16] The representativeness of a fighting organization is essential to their legitimacy as combatants: it identifies the fighters as wartime proxies for the populace for which they fight. The war rights they take on—the dispensation the war convention accords—rely on status of the fighters as surrogates. Because this is not the soldiers’ war (at least not in its entirety, and oftentimes not at all), the war convention separates them from the legal ramifications of killing. When the soldiers do not act as representatives of (at least some body of) the people, however, they lose their moral immunity from the killing they do in war.

This is a step forward from the oversimple delineation limned by A.J. Barker: “A soldier, serving in the army of a country which is recognized as being at war with his captors’ nation, who is taken prisoner in the course of a military operation is a clear case of a person entitled to POW status…[i]rregular combatants, fighting on their own initiative, are outside the shelter of the Geneva Convention’s umbrella. And if they are caught they are likely to be dubbed war criminals and shot.”[17] Although he recognizes the middle ground that limited war, Cold War, and low-intensity conflict reflect, Barker does not underscore (as I think he should) the soldiers’ representativeness of their people. He disallows (or paints the GC as disallowing) legitimate fighters outside formal government control. It does seem, after all, that all legitimate fighters deserve the same war rights; if Barker seeks to strip irregulars of theirs, he must base his position on the illegitimacy of their status (for there seems to be nothing else on which to base it). History has, it seems, given examples of justified uprising (if we reject Mao Zedong’s, perhaps we will consider George Washington’s as appropriate), and if some would deny this, they should at least admit that justified uprising is more than merely logically conceivable.

The representativeness that I think is important involves more than simply representing something or someone other than oneself. The military group must directly represent a (segment of) people that exhibits a measure of geographical contiguity. Precision in definition for the term is elusive, but the general idea is straightforward: the people must be bound not only by ideology, but also by attachment to the land. If the fighters are to claim status as legitimate combatants, those they represent must have a claim to land; perhaps they live there, or perhaps they have a legal or moral right to it. Such a move is, I think, intuitive. War entails the occurrence of invasion into enemy territory, even in revolution. War threatens a government’s hold on land. A warring party seeks to occupy and control a land—to impose a rule over the group of people who live within its borders. A military organization that seeks a similar goal on behalf of a people that is connected by territory is one that is legitimate and deserving of POW status when captured.

The territory-connectedness requirement disqualifies at least some potential combatants from POW status. Those nonstate fighters whose impetus is purely ideological fall outside the boundaries if they are not affiliated with the people in an identified geographical region. Some have predicted the withering away of the state and a concomitant rise of the international organization as the next power structure. If the future is a virtual one wherein the strongest interpersonal bonds are neither familial nor proximal, such collectives might very well be the tie between fighters—international criminal groups might well be harbingers of a new era of (illegitimate) combatant in which battles over resources are fought by belligerent parties that are linked by ideology or common interest rather than a national identity that correlates strongly with geographical continuity.

The Import in an Age of Terrorism

Terrorism is a charged word, and using it invites misuse. To corrupt a Hobbesian line, one calleth terrorism what another calleth national liberation, and many current thinkers have accepted the improbability of agreeing on a common use for the term.[18] Even if we can agree on a definition for the term (perhaps, for example that of the Northern Ireland [Emergency Provisions] Act 1973, and Part [IV] Miscellaneous and General: "Terrorism means the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear."), we still find difficulty in determining how the term is to be used. Perhaps attempting to determine legitimate combatancy would constitute a move to precision would be helpful for determining the status of fighters.

Some state actors are responsible for what some call terrorism—attacking civilian populations, for instance. An application of my three conditions would provide some help: armies that operate under state aegis are typically de facto representative of the people of a particular area, and they typically have a military command structure. Whether they as a group accept the war convention’s jus in bello prohibitions will determine the status of each member.

Nonstate organizations will satisfy the conditions variously. The IRA and Hamas, for example, both seem to fulfill the conditions of representation and appear to have enough of a command structure to fulfill that condition, as well, but may not show sufficient commitment to the war convention’s prohibitions, and if the parent organizations satisfy jus in bello requirements, some splinter groups certainly do not. Al Quaeda seems to satisfy the command structure to some degree, but it appears to fail both on grounds of adherence to the war convention and representativeness.

The verdict delivered by these conditions may not always be palatable. I have said nothing of uniforms, although the GC does mention an identifiable marking as requisite for potential POW status. I am skeptical of this requirement, for it disallows citizens fighting in a defensive war for their homeland to assimilate themselves to the class of legitimate combatant (which it seems they should be able to do). It also excludes from legitimate combatancy many of the American Revolutionary War. An illustrated history of American uniforms describes the clothing of American rifleman, who was “just as distinctive as the frontier from which he came…Like the ranger of the Old French War before him, he was ever the irregular, hard to manage…but deadly when properly employed.” His uniform? A linen or deerskin hunting shirt, a “familiar frontier garment,”[19] but hardly a uniform that distinguished him from mere noncombatant hunters. If we would extend POW rights to the Revolutionary rifleman, then (in accordance with the jus in bello-jus ad bellum distinction), we should consider extending them to other irregulars who, while in civilian clothes, fulfill the conditions.

Michael Walzer’s correction to the GC gets significantly closer to the right answer for the use of civilian clothes as combat garments. According to him, the key issue is “the use of civilian clothing as a ruse and a disguise.”[20] If the American rifleman did not use his frontier clothing in this way, it is not clear that the US’ opponents in Afghanistan use their civilian clothes as a moral camouflage, either. It is also not clear that, for example, the Hezbollah fighters who bombed Khobar Towers would be disqualified from legitimate combatancy. With these conditions in place, we may change our assessment of some nonstate groups that operate in accordance with the conditions.

NOTES