5 Combatants and Non-Combatants

This chapter examines the regulation of combatant status in treaty law and the many challenges for combatant status in recent armed conflicts. The primary status under international law of persons in an international armed conflict will be one of two categories of persons: ‘combatants’ and ‘civilians’. Combatants may fight within the limits imposed by international law applicable in international armed conflict, that is, they may participate directly in hostilities, which members of medical or religious personnel and ‘non-combatants’ may not do because they are excluded—by international law and by a legal act of their party to the conflict—from the authorization to take a direct part in hostilities. The chapter then discusses ‘unlawful combatants’, or what may be considered the better term: ‘unprivileged belligerents’. The term ‘unlawful enemy combatant’ was particularly used after 11 September 2001, to introduce a third category of persons which under existing law may be either combatants or civilians, but are denied such status as not fulfilling essential conditions. To use this third category in order to reduce the individual protection below the minimum standard of human rights is under no circumstances legally acceptable.

Kashmir Conflict and the Advent of Torture: An Overview

Modern states have built burgeoning detention facilities like immigration centers, prisons and police cells that engage in torture and other cruel, inhuman treatments. The law enforcement agencies engage in torture and other cruel, inhuman and degrading treatment or punishment in the name of counter- terrorism, security threats and soon. The state uses torture and makes it clear that enhanced interrogation techniques makes a person from kidnapping to extra-ordinary rendition, from citizen to unlawful enemy combatant and from human to terrorist. The valley of Kashmir faces torture and other cruel inhuman treatments since insurgency began in 1990’s, with violent uprising and have elicited terrorism. Methods like torture is used as a tool of counter- insurgency by Indian security forces. The government of India used all efforts to crush the movement of self- determination of Kashmir. The strong response from India violates the human rights and international humanitarian laws. The law enforcement agencies, army and para- military forces have engaged in reprisal attacks against civilians resulting in indiscriminate firing, search operations, gang-rapes and burning of houses in the valley. After 1990, the situation in the Kashmir valley deteriorated and Kashmir was declared a disturbed area and laws like Disturbed Area Act (DAA) 1990, Armed Forces Special Powers Act (AFSPA) 1990 and Public Safety Act (PSA) 1978 were imposed. The purpose of the paper is to examine the concept of Torture in Kashmir valley and bring to light the plight of the victims in the valley.

My Brother’s Keeper: Assurbanipal versus Šamaš-šuma-ukīn

When Esarhaddon named his successors, he split the empire between two of his sons, with Assurbanipal as king of Assyria and Šamaš-šuma-ukīn as king of Babylonia. This arrangement functioned until 652 BCE, at which point a civil war began between the brothers. The war ended with Assurbanipal’s victory and Šamaš-šuma-ukīn’s death in 648 BCE. While Šamaš-šuma-ukīn’s death is mentioned in several of Assurbanipal’s inscriptions, it is still unclear how the king of Babylon met his end, and scholars have suggested theories ranging from suicide, assassination, execution, and accidental death. By offering a reexamination of the evidence for royal death in general and Šamaš-šuma-ukīn’s demise in particular, this article explores how possibly taboo topics such as fratricide, regicide, and suicide were depicted in Neo-Assyrian state texts and how Assurbanipal appears to have coped with his brother’s rebellion and death, especially as compared to Assyrian treatments of belligerent and rebellious foreign kings. This article argues that the relative silence around Šamaššuma- ukīn’s death is due to the fact that, while he was an enemy combatant, he was nonetheless a member of the Assyrian royal family and a legitimately-installed king. Overall, this article concludes that Assurbanipal uses several rhetorical strategies to distance himself from Šamaš-šuma-ukīn, especially invoking deus ex machina as a way to avoid even the potential accusation of fratricide and ultimately erasing his brother from the written record and Assyrian history.

D.C. Circuit Upholds Injunction Barring the Involuntary Transfer to an Unidentified Third Country of a U.S. Citizen Alleged to be an Enemy Combatant

On May 7, 2018, the U.S. Court of Appeals for the D.C. Circuit blocked the transfer to an unidentified third country of a dual U.S.-Saudi national detained in Iraq as an alleged enemy combatant. The decision, Doe v. Mattis, also upheld a district court order requiring the government to provide seventy-two hours’ notice before transferring him to another country. In an opinion authored by Judge Srinivasan and joined by Judge Wilkins, the court emphasized that while it was “respectful of—and with appreciation for—the considerable deference owed to the Executive's judgments in the prosecution of a war,” “things are different” for alleged enemy combatants who are U.S. citizens. Further proceedings in the district court could potentially address whether the U.S. military campaign against the Islamic State of Iraq and the Levant (ISIL) is lawful under U.S. domestic law.

Knowing Habeas Corpus When You See It

Viewing habeas corpus through a legal lens frequently misleads. The common law “rule” against controverting the return to writs of habeas corpus was commonly evaded through devices permitting judicial examination of the underlying facts and law. In many cases concluding “writ denied,” the prisoner in fact obtained “habeas corpus without the writ.” Failure to understand this explains why the Fourth Circuit performed so badly in rejecting the challenge of Yaser Hamdi to his detention as an enemy combatant. The Supreme Court very properly reversed that decision in Hamdi v. Rumsfeld (2004), resulting in the prisoner’s speedy release when the government was confronted with having to actually prove in court the claims it had made on paper.

Headhunting in ancient China: the history of violence and denial of knowledge

Headhunting has a long and well-documented history in China, but most people are today unaware of this practice, first recorded in Shang oracle bones and regularly mentioned in ancient Chinese texts until the Han dynasty. This ignorance is because headhunting subsequently came to be seen as a barbaric practice and knowledge concerning its long history was destroyed: this was achieved by inventing a new character, guo 聝, which means “to cut the ear of a dead enemy combatant” and using this to replace (and thus confuse meanings with) an older character guo 馘, which refers specifically to headhunting. Ancient texts in which headhunting practices are documented have been misunderstood and misrepresented by imperial era scholars to prevent anyone from seeing that ancient China was a headhunting culture. This study shows how dominant cultural norms can impact on the way in which texts are read.

Habeas Corpus Today

The experience of World War II and the precedent of the Japanese American internment dramatically altered the political and legal landscape surrounding habeas corpus and suspension. This chapter discusses Congress’s enactment of the Emergency Detention Act of 1950 along with its repeal in 1971. It further explores how in the wake of the terrorist attacks of September 11, 2001, questions over the scope of executive authority to detain prisoners in wartime arose anew. Specifically, this chapter explores the Supreme Court’s sanctioning of the concept of the “citizen-enemy combatant” in its 2004 decision in Hamdi v. Rumsfeld and evaluates Hamdi against historical precedents. Finally, the chapter explores how Hamdi established the basis for an expansion of the reach of the Suspension Clause in other respects—specifically, to the U.S. Naval Base at Guantanamo Bay, Cuba.

Introduction

The Introduction begins by exploring modern examples sanctioning the concept of the citizen enemy combatant, such as the War on Terror cases of José Padilla and Yaser Hamdi. It then suggests that the roots of this concept may be found in the World War II detention of Japanese Americans, including over 70,000 U.S. citizens. The Introduction continues by arguing that this modern conception of the citizen enemy combatant is impossible to reconcile with the historic understanding of the Suspension Clause and the habeas privilege that trace their origins to English legal tradition, an understanding that remained consistent well through Reconstruction. The Introduction concludes with an overview of the book.