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This short introduction describes the approach taken by the book and gives a brief outline of its contents. The story is about wars and military occupation, and the ideas underlying them, and the search for these ideas is carried out in the domain of the laws of war by addressing the challenge posed by a particular principle in these laws: the distinction between combatant and non-combatant, a concept which has been recognized as the fundamental principle upon which the entire notion of ‘humanity in warfare’ rests (and has also been acknowledged as the most fragile). The forces underpinning this distinction (more precisely, a distinction between the lawful and unlawful combatant) are explored by presenting three ideologies, each representing a distinct political tradition of war, and each rooted in incommensurable conceptions of the good life; the overall argument of the book is that this incommensurability lay at the source of the failure fully to resolve the problem of distinction between lawful and unlawful combatants between 1874 and 1949. The book makes use of concepts and methods borrowed from a range of intellectual disciplines: political thought, history, and the ‘classical’ traditions of international theory. In the case of the latter, it examines the influence of key thinkers on war, such as Machiavelli, Grotius, and Rousseau, but differs from this orthodox approach in two ways: first, it is not seeking to ascertain the ‘true’ meaning of their philosophies, but rather to find how their political thoughts were interpreted and shaped by later generations; second, the examination is not restricted to abstract theorists and philosophers but is centrally concerned with paradigms constructed by practitioners of war, both professional and civilian.

This chapter examines the nature of POW and combatant status, exploring the origins and historical evolution of combatant/POW status. The chapter looks at what combatant/POW status comprises, that is, what rules and responsibilities the status entails. The chapter looks at why the status is important, and what consequences result from denial or loss of combatant/POW designation. Finally, this chapter also examines why combatant/POW status is denied to participants in non-international armed conflicts.

This chapter delves into the content of the rules applicable to extraterritorial armed conflicts against non-state actors. Detailed attention is given to the status of individuals under international humanitarian law, and whether members of armed groups should be considered as civilians or combatants. This includes examination of the notions of direct participation in hostilities and unlawful combatants. Following this, the chapter examines challenges in the humanitarian law rules regulating force against non-state actors, in the context of both large scale and small scale operations.

The evidence presented in previous chapters contributes to the general argument that the US defends the idea of a society of states because it is in the kind of society that America can preserve a preferred self‐image and can best advance its particular interests. This chapter develops that argument one stage further by focusing on the US response to the terrorist attacks of 9–11. From the perspective of the Bush administration, only those fighting on behalf of sovereign states could claim a right to lawful belligerency and the right to protection under the laws of war. Dealing with the terrorist threat through the norms of the society of states, therefore, provided additional normative criteria to delegitimize Al Qaeda and it put the issue of counter‐terrorism in a legal and political setting the US could, as the most powerful state, more or less dictate. The chapter provides historical context to this policy by focusing on the US rejection of Protocol I additional to the Geneva Conventions and illustrates how US lawyers also used the concept of sovereignty in an attempt to escape the oversight of national as well as international courts.

This is the third of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed, and explores a range of intellectual approaches to the laws of war and war itself, assessing their relative methodological value and limitations. Previous chapters have illustrated that there existed at all levels a profound disagreement about the classes of people who were permitted to engage in political violence in times of war, and by narrowing the scope of inquiry to this one aspect (lawful versus unlawful combatants) of the laws of war, these chapters have also shown that there were strong normative elements to this lack of accord. Starting with this chapter, the remainder of the book argues that these normative elements were expressions of profound ideological clashes among three contending philosophies of war: martial, Grotian, and republican. From a methodological perspective, the explanation for the failed attempt to construct a distinction between lawful and unlawful combatants will be seen to lie in incommensurable normative frameworks of war, rather than in the specialized analytical tools of legal theory, diplomatic and archival history, and international relations theory. This chapter first assesses both the intellectual contributions and limitations of the legal, historical and international relations approaches before defining the three distinct traditions of war (martial, Grotian, and republican), and highlighting their explanatory value.

This is the second of three chapters on the three traditions of war, and introduces the Groatian tradition, which is viewed as the most dominant and powerful of the traditions presented, and had as its primary source the Dutch diplomat, lawyer, poet, mathematician, theologian, and historian, Hugo Grotius (1583-1645). The objective of the chapter is to analyse this ideology, and show how its principles came to underpin the later Grotian rationale for the legal distinction between lawful and unlawful combatants. The chapter begins by evoking the inherently enigmatic qualities of Grotius and the numerous (and often conflicting) traditions that he inspired; next the distinct properties of the Grotian tradition of war are set out and seen to consist of a singular legal discourse, a pluralist method, and a strong attachment to order and power. The core components of this ideology are then examined with reference to Grotian conceptions of human nature, government, and liberty; these elements are shown to provide the necessary foundations of Grotius’ conception of war, and in particular to inform the priority accorded to the rights of states and armies over those of civilian populations. The final section of the chapter examines how this ideology informed the practices and beliefs of the founders of the modern laws of war; these ideological changes highlight the adaptability of this tradition as it developed at the end of the nineteenth century, and defined the dominant paradigm of the laws of war.

By the end of the Geneva negotiations in 1949, significant progress had been made in the codification of the laws of war, although the question of the legal distinction between lawful and unlawful combatants remained essentially unresolved. The book has outlined both the conceptual and practical historical contexts within which this problem was confronted, and in doing so has offered an explanation of its intractability, its argument being that three fundamentally divergent philosophies of war that cannot be reconciled lie at the heart of the problem. A number of central and important themes have been identified: (1) the book has underlined that in situations of war or military occupation, many of the traditional dichotomies in both international relations theory and political theory are lost; (2) from the perspective of international law, in contrast with the conventional depiction of the legal arena as an exclusive instrument for advancing and reconciling state interests, the analysis has shown that legal systems are also (and perhaps primarily) the expressions of ideological norms and values; and (3) the importance of ideological traditions has been demonstrated. Finally, in its treatment of the themes of war and military occupation, a number of points have been highlighted: (1) the opaque nature of occupation in nineteenth-century Europe; (2) the existence of a powerful custom of civilian resistance to occupation, not even accounted for by the makers of the laws of war; (3) the impossibility of maintaining a distinction between the public and private spheres under occupation; (4) the incoherence of a Groatian formulation in the face of such army practices as reprisal (a martialist policy); and (5) the explicit emergence of patriotism and nationalism in these situations. These points demonstrate that it was hardly surprising that the attempt to introduce a distinction between lawful and unlawful combatants failed, and show that the essential truth oaboutwars of military occupation and conquest is captured in the opposition between martial and republican paradigms.

This is the first of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed: political and diplomatic (this chapter), social (Chapter 2) and intellectual (Chapter 3). The narrative begins by summarizing the diplomatic history of the conferences at Brussels in 1874, at the Hague in 1899 and 1907, and at Geneva in 1949. While the negotiations of the laws of war proved successful in many respects, they consistently failed to agree on a common legal understanding of a lawful combatant.

This is the second of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed: political and diplomatic (Chapter 1), social (this chapter) and intellectual (Chapter 3). It explores the social history of army occupation and resistance to it in nineteenth century Europe – from the Napoleonic period to the Franco-Prussian war– and places these diplomatic failures in their broader social and political context. In particular it examines the range of army practices under occupation, and the effect that they had on civilian life. The different sections of the chapter discuss: pillaging, looting, requisitions and billeting; reprisals; hostage-taking; types of civilian behaviour –obedience to the occupier, political and armed acts of resistance, organized acts of resistance –guerrillas and franc-tireurs; levee en masse and other assorted insurrections; ideologies of resistance; religion as a source of resistance; and the influence of nationalism and patriotism.

This chapter focuses on the use of military commissions to prosecute terrorist suspects. This is interpreted as an extension of the Bush administration’s focus on prevention and a concern that federal courts were inappropriate for terrorists that were designated ‘enemy combatants’. The chapter introduces the debate over the applicability of the Geneva Conventions and the argument that as ‘unlawful combatants’ the enemy could be prosecuted for taking up arms against US forces. The continuity theme is illustrated with a discussion of President Obama’s use of reformed military commissions. While change is evident to the extent new incidents were treated as law enforcement issues, Obama found it too difficult politically to transfer high profile 9/11 detainees to federal courts.

This chapter addresses the emergence of the irregular as the ‘unlawful combatant’ in the framework of the so-called war on terror. In spite of the ubiquitous assertion by the Bush administration that the ‘war on terror’ was a new kind of conflict in which the established legal rules would no longer apply, the legal arguments on which the notion of the ‘unlawful combatant’ was based demonstrate a conspicuous continuity with established exclusionary mechanisms towards irregular fighters. The chapter not only aims to highlight the internal inconsistencies of the ‘unlawful combatants’ concept, but also argues that the concept is at odds with two other manifestations of irregular fighters at the beginning of the twenty-first century: the irregular as the target of drone attacks and other instances of targeted killing and the irregular as the ‘rebel’ auxiliary in the West’s grand strategies.

This chapter examines the tribunals' war-crimes jurisprudence. Section 1 explores when the Hague and Geneva Conventions applied, how the tribunals defined ‘occupation’, and whether the applicability of the Conventions was affected by the illegality of a particular aggressive war or invasion. Section 2 discusses two issues involved in the summary execution of partisans: when partisans could qualify as lawful combatants, and whether unlawful combatants could be summarily executed. Section 3 focuses on crimes against prisoners of war. Section 4 examines crimes against civilians, particularly slave labour and deportation. Finally, Section 5 addresses the crime against property of plunder/spoliation.

This chapter opens the debate with Meisels’ defense of targeted killing as a legitimate and desirable defensive anti-terrorism strategy, in keeping with both just war theory and international law. Meisels’ unequivocal starting point regarding counter-terrorism is that a state of continuous armed struggle exists between states and various terrorist organizations and their affiliates. Meisels unreservedly defends the named killing of irregular combatants, most notably terrorists, in the course of armed conflict, distinguishing sharply between this wartime practice and the related illicit practice of political assassination. Later in this chapter, the author offers a possible moral justification for rare instances of assassination outside that framework, specifically with reference to recent cases of nuclear scientists developing weapons of mass destruction for the Iranian and Syrian governments.

This chapter discusses another specific communication technique used by the Court—signaling. Signaling is how the Court expresses its position on the constitutionality of a certain law or policy without giving a formal binding decision. The chapter provides case studies illustrating the Court’s judicious use of signaling. It compares the different signals the Court used in dealing with the use of violence in Shin Bet investigations vis-à-vis the case of detention of “Unlawful Combatants,” as well as the Court’s reaction to the overuse of “emergency regulations” by the government. The chapter also discusses the use of signaling in the case dealing with the right to be warned before interrogation and the Court’s letting the Knesset know of the Court’s intention to declare the product of such interrogations to be inadmissible. Finally the chapter discusses the “Judicial Sunset” technique used for limiting nonintervention by the Court until an emergency situation eases.

This chapter discusses the promotion of international law as a means of addressing terrorism. It describes responses of the U.S. government to the 9/11 attacks and how these responses have often been in violation of international law.

This chapter examines how the U.S. war on terrorism took shape at Guantánamo Bay and how Guantánamo came to signify a prison beyond the law, pervaded by illegal detention, abuse, and secrecy. It argues that Guantánamo, touted by U.S. officials as a “world-class” detention facility, was created to justify prolonged detention without charge, due process, or judicial review. It considers how the Bush administration attempted to gloss over the contradictions between the concepts of “soldier” and “criminal” by classifying the detainees at Guantánamo as “enemy combatants” or “unlawful combatants.” It also contends that Guantánamo's overriding purpose was intelligence gathering rather than detention.

The Conclusion summarizes the main arguments of the book and highlights their implications for two sets of issues: the question whether the law of armed conflict is outdated, as has been frequently claimed in recent years, and the issue of how the cooperation between the state and irregular forces in the form of auxiliaries ought to be assessed in the framework of Western strategy-making in the twenty-first century. It concludes with a critical evaluation of the dynamic dichotomy between the regular and the irregular as conceptual opposites, and argues that the twenty-first-century revival of the irregular as ‘unlawful combatant’ has less to do with the strategic context of the ‘war on terror’, than with an identity crisis of Western armed forces.

This chapter examines how the U.S. war on terrorism took shape at Guantánamo Bay and how Guantánamo came to signify a prison beyond the law, pervaded by illegal detention, abuse, and secrecy. It argues that Guantánamo, touted by U.S. officials as a “world-class” detention facility, was created to justify prolonged detention without charge, due process, or judicial review. It considers how the Bush administration attempted to gloss over the contradictions between the concepts of “soldier” and “criminal” by classifying the detainees at Guantánamo as “enemy combatants” or “unlawful combatants.” It also contends that Guantánamo's overriding purpose was intelligence gathering rather than detention.