Thanks to Marc Tyrrell and Kevin Jon Heller for responding to my initial post on the combatant status of the Ansars. I would first respond to Tyrrell’s comment that my “argument is both absolutely correct and, at the same time, hopelessly anachronistic”. To be clear, I was not making a normative argument in that post. I intended merely to point out that historically the laws of war have recognised the right of certain groups – state and state-like actors – to wage war. Limiting that right to these groups is one way the laws of war help to constitute global politics in the form of a Westphalian society of states.

Now, I agree that this view of the laws of war is culturally contingent. It did of course emerge out of 17^th century Europe. But it has more or less been globalised along with the globalisation of the Westphalian state system. I also accept Marc’s point that this view is anachronistic in light of the increased power of transnational actors. From the Bush administration’s perspective, however, it was a rather useful anachronism. The administration in effect applied the Westphalian (statist) model of rights in war to a transnational reality. Where the model did not fit the reality there was ‘a legal black hole’. Lord Steyn’s description of Guantanamo as ‘a legal black hole’ was of course a criticism of the Bush administration. In the post-Westphalian world, human rights had globalised to make sure there were no black holes. But in the post-9/11 world, the Bush Administration tried to construct a black hole that was legal. In other words, it tried to legally construct a space where human rights did not apply and it found a Westphalian (statist) interpretation of the laws of war to be very useful (i.e. Al Qaeda is not a state but it is an enemy and it has not, indeed cannot, consent to GC, so GC protections do not apply).

The Bush Administration argued it was adopting rules suitable to ‘a new kind of war’, but in fact, it reflects a very old way of thinking. Before the globalisation of the state system, the laws and practice of warfare reflected a discourse of ‘civilisation’. Wars between ‘civilised’ states were to be restrained and combatants in these wars were to respect the principles of jus in bello. Whereas wars between ‘civilised’ states and ‘uncivilised savages’ (i.e. combatants not constituted as states) need not be restrained. In these wars, the just cause of the state (i.e. spreading civilisation) supposedly released states from the restraints of jus in bello.

I’d submit that we see this kind of thinking in the rhetoric but, more worryingly, in the legal arguments that tried to justify the Guantanamo regime. The Bush Administration essentially argued that Al Qaeda was not a state and could not consent to the Geneva Conventions so the laws and normative restraints that otherwise governed relations between states did not apply. This brings me back to the Hamdan case and the defence’s argument, which was that the laws of war did apply because the Ansars were in effect a field army that met GC conditions for lawful combatancy. I have no argument against this and the idea that detainees would benefit from the humanitarian protections that follow from this argument is normatively much more preferable to the idea of a ‘black hole’ that the Bush Administration tried to construct.

The point I was trying to make in my initial post, however, was that we associate Al Qaeda with a transnational network and if we apply IHL to those fighting on behalf of these kinds entities (either to prosecute them or to protect them) then we are helping to change the character of war as a social institution. Indeed one could make the same argument, as Tyrell seemingly does, if one recognised private military companies as lawful combatants. It’s all part of the question of power shifting away from the state and whether law should follow to legitimise that.

On Kevin Jon Heller’s comment about my point on civilians being charged with unlawful combatancy I should clarify my position. I agree with him that ‘unlawful’ or ‘unprivileged combatancy’ is not an international crime that carries universal jurisdiction. As Richard Baxter tells us (The British Yearbook of International Law, 28, 1951) such acts were considered by the drafters of GC as unlawful (i.e. crimes in war) but they were to be prosecuted under national legislation. The fact that so many states had in their past called upon their citizens to resist an occupying enemy is one reason why international society was at the time reluctant to make such an offence a criminal act that carried universal jurisdiction. Heller then informs us that ‘no such law exists in US domestic law’ and the ‘military commissions have been given jurisdiction over non-existent war crimes’.

This, I think, reinforces the point I made toward the end of my initial post, which was to point out the error of the Bush administration when adopting a war-based response to 9/11; and when it talks about a new transnational battlefield and a new war against terrorism. The Administration tries to claim that unlawful belligerency (and the other acts Heller lists) are war crimes in this new post-9/11 world. But gradually the courts, including these tribunals, are beginning to see through that. The use of force in Afghanistan was obviously a war (or armed conflict) for legal purposes and to the extent that the Ansars met the criteria outlined by Brian Glyn Williams, then they should be treated as POWs and protected under the third GC. But to be clear, this is not a war against a terrorist network fighting on a transnational battlefield. It is a war against a field army fighting in Afghanistan and that’s the only reason the laws of war apply. The laws of war do not apply to the fight against terrorism in most liberal democracies. As the Director of Public Prosecutions in the UK put it after the 7/7 bombings “London is not a battlefield”, and this is something the new UK National Security Strategy reaffirmed when it insisted the UK would continue to prosecute terrorist suspects using criminal justice systems (and all the rights they afford) rather than treat them as ‘enemy combatants’.