Rules of War

The rules of war do not apply to every act of hostility against an established government. Openly declared wars between sovereign states clearly implicate the rules of war. When the belligerents do not issue formal declarations of war, the legal status of a military conflict becomes murky. Isolated acts of TERRORISM or subversion, however, neither constitute acts of war nor create a state of war. Such acts are normally punishable under the criminal laws of the country in which they are perpetrated.

Wider internal disturbances within the territorial borders of a country are more difficult to classify. When such disturbances begin, the ruling government is apt to classify them as riots or rebellions, while those who cause the disturbances are likely to classify them as acts of civil war. INTERNATIONAL LAW provides no definitive classification for such hostilities. But subversive groups that acquire sustained control over substantial territory and win measurable domestic support are more likely to receive the benefit of the rules governing warfare than are small bands of insurgents whose seditious efforts are stifled and repelled.

Even when a state of war indisputably exists, the rules of war do not apply to all combatants. Regular land, air, and naval forces are typically governed by the rules of warfare. Irregular armed forces, such as guerrillas and other insurgents, are governed by these rules only when they carry their weapons openly, wear uniforms clearly displaying a recognizable emblem or insignia, conduct their operations in accordance with the laws of war, and are commanded by a superior who is responsible for subordinates.

The point of these rules is not only to distinguish combatants from noncombatants but to distinguish conventional soldiers from hired assassins, spies, and mercenaries who circumvent the customs of war in order to accomplish an end that could not be achieved by regular armed forces. Because assassins, spies, and mercenaries do not comply with the rules of war, their captors need not either. Similarly, combatants who attempt to flout the rules of war by disguising themselves in civilian clothing or enemy uniforms may be treated as ordinary criminals.

They may also be treated as "enemy" or "unlawful" combatants, a kind of purgatory between civilian status and prisoner-of-war-status. In response to the SEPTEMBER 11TH ATTACKS in 2001, the United States launched a WAR ON TERRORISM, which included a specific military operation against the Taliban government in Afghanistan and members of the al Qaeda terrorist organization conducting operations there. During that conflict, the U.S. military captured thousands of Taliban and al Qaeda forces, hundreds of whom were allegedly not complying with the rules of war, failing to wear uniforms with insignia clearly displayed, failing to carry their weapons openly, and failing to organize themselves in units subject to a hierarchical chain of command.

The United States transported approximately 650 of the captured combatants to Camp X-Ray at the naval base in Guantanamo Bay, Cuba, where they were held as "enemy" or "unlawful" combatants for the duration of the war against terrorism. President GEORGE W. BUSH issued a series of executive orders that formally denied the Guantanamo detainees prisoner-of-war-status and created military tribunals or commissions to try them for possible war crimes. Despite criticism from international observers who sought prisoner-of-war-status for the Guantanamo detainees, at least two U.S courts of appeal have allowed the president's orders to stand, one declining to exercise jurisdiction over the matter, Al Odah v. U.S., 321 F.3d 1134 (D.C. Cir. 2003), and one denying that the petitioners had standing to challenge the detention, Coalition of Clergy, Lawyers & Professors v. Bush, 310 F.3d 1153, 1165 (9th Cir.2002). However, as of June 2003, no detainee had yet to appear before such a tribunal.