First, this Article reviews policymakers' and commentators' categorization of participants in Operation Enduring Freedom, the armed conflict in Afghanistan against al Qaeda and Taliban fighters. This Article concentrate specifically on the status of participants operating at the fringes of the categories of persons protected by the Geneva Conventions. It shows, for example, how al Qaeda and the Taliban fighters tested the bounds of the Conventions by employing methods of “warfare” which rendered them non-distinct and therefore made a determination of their status unclear. This Article demonstrates how policymakers and ultimately the U.S. President created a class of persons--so-called extra-conventional persons--who participated in hostilities yet failed to qualify for protection under any of the applicable Geneva Conventions. Second, this Article presents the training and education available to the judge advocates who faced these legal issues. it further presents perspectives on the law of war as it appeared from the resources, education, and training commonly available to deployed judge advocates. This Article ultimately concludes that international law and U.S. military doctrine classify many who participate in hostilities as “protected persons” under the Fourth Geneva Convention--a concept ultimately at odds with the determination made by U.S. policymakers.Third, and in concert with the two issues identified above, this Article describes the enormous challenges these issues created for U.S. military persons participating in Operation Iraqi Freedom. Specifically, it illustrates operational and legal challenges faced by military attorneys and the commanders they advised. It then explores legal issues that arose during the detention and occupation operations with respect to fighters associated with Saddam Fedayeen. Observing apparent similarities between Saddam Fedayeen and Taliban fighters earlier categorized as extra-conventional, this Article describes how, despite similarities in applicable law and attributes, judge advocates determined that these irregular fighters were protected persons under the Fourth Geneva Convention. It concludes that judge advocates dealt with these challenges responsibly, providing sound legal advice that balanced commanders' mission requirements with the humanitarian spirit of the law of war.
Paul E. Kantwill and Sean Watts,
Hostile Protected Persons or "Extra-Conventional Persons:" How Unlawful Combatants in the War on Terrorism Posed Extraordinary Challenges for Military Attorneys and Commanders,
28 Fordham Int'l L.J. 681
Available at: https://ir.lawnet.fordham.edu/ilj/vol28/iss3/5