Second, the various new substitutes for “unlawful enemy combatant” abolish an important distinction in traditional international law. As the eminent military historian Sir Michael Howard argued shortly after 9/11, the status of al Qaeda terrorists is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval and early modern European jurisprudence. According to Mr. Howard, the Romans distinguished between bellum (war against legitimus hostis, a legitimate enemy) and guerra (war against latrunculi, pirates, robbers, brigands and outlaws).
Bellum became the standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to guerra. Indeed, punishment for latrunculi, “the common enemies of mankind,” traditionally has been summary execution.
Though they don’t often employ the term, many legal experts agree that al Qaeda fighters are latrunculi — hardly distinguishable by their actions from pirates and the like. Robert Kogod Goldman, an American University law professor has commented: “I think under any standard, the captured al Qaeda fighters simply do not meet the minimum standards set out to be considered prisoners of war.” And according to Marc Cogen, a professor of international law at Ghent University in Belgium, “no ‘terrorist organization’ thus far has been deemed a combatant under the laws of armed conflict.” Thus al Qaeda members “can be punished for all hostile acts, including the killing of soldiers, because they have no right to participate directly in hostilities.” But the Obama administration is about to extend legal rights — intended to protect civilians — to the very latrunculi who want to blow them up by considering the possibility of trying them in U.S. courts. Indeed, Attorney General Holder did not rule out trying the Somali pirates.
This is, of course, in response to the Obama administration’s verbal gyrations in abolishing the name “War on Terror” and renaming “Enemy Combatants” as “individuals captured in connection with armed conflicts and counterterrorism operations.” Or maybe they are going to downsize that name and just call them “Herbie.”
Somehow, we have managed to lose those subtle, but important distinctions in where these rules and “laws” between nations were meant to apply.