National Security Law - Army Regulation 190-8 - Fourth Circuit Holds Taliban Member Not Entitled to Combatant Immunity

Harvard Law Review, December 2018 | Go to article overview

National Security Law - Army Regulation 190-8 - Fourth Circuit Holds Taliban Member Not Entitled to Combatant Immunity


NATIONAL SECURITY LAW--ARMY REGULATION 190-8--FOURTH CIRCUIT HOLDS TALIBAN MEMBER NOT ENTITLED TO COMBATANT IMMUNITY.--United States v. Hamidullin, 888 F.3d 62 (4th Cir. 2018).

American courts have struggled to apply the laws of war to the detention and trial of individuals since the beginning of the conflict with al Qaeda and the Taliban. (1) One important role of the laws of war is to establish whether a detained individual is a prisoner of war (POW). POWs are entitled to combatant immunity from prosecution for their actions during the conflict, as long as those acts were consistent with the laws of war. (2) In the United States, POW status is theoretically determined by a procedure set out in Army Regulation 190-8 (3) (AR 190-8), which provides that a panel of military officers decides whether someone is entitled to POW status if there is any doubt about the individual's status or if the individual raises a claim to POW status. (4) But the executive branch has not applied this regulation to the current conflict, and courts have not forced it to. Recently, in United States v. Hamidullin, (5) the Fourth Circuit held that a Taliban commander captured in Afghanistan was not a POW and that the district court had jurisdiction to determine the defendant's POW status. (6) By holding that federal courts--instead of AR 190-8 tribunals--can make POW determinations in the first instance, the Fourth Circuit ruled out the possibility of providing an important incentive to encourage the Executive to follow its own administrative procedures in non-international armed conflicts. That did a disservice to detainees and the courts themselves.

Under the Third Geneva Convention, (7) two conditions must be satisfied to entitle an individual to POW status, and thus combatant immunity. First, as Article 2 specifies, the conflict must "arise between two or more of the High Contracting Parties" to the Convention--in other words, it must be an international armed conflict (IAC) between nation-states. (8) Second, as Article 4 specifies, the individual must be a member of one of a number of specified groups: armed forces of a party in the conflict, an organized resistance movement, or an army loyal to an unrecognized power, among others. (9) Article 5 further states that if there is any doubt about whether an individual who has "committed a belligerent act and ... fallen into the hands of the enemy" is entitled to POW status, the individual is entitled to POW status until his or her status is "determined by a competent tribunal." (10) The Third Geneva Convention does not define a "competent tribunal." But AR 190-8, the military regulation that implements the Convention's protections, does. It states that any person who might be entitled to POW status or who asserts a claim for POW treatment is entitled to a tribunal made up of three commissioned officers, among other requirements. (11)

Irek Hamidullin, a former officer in the Russian Red Army, was taken into custody in Afghanistan in November 2009, after he prepared and commanded insurgents in an attack on an Afghan Border Police post as part of the Taliban and the Haqqani network. (12) He was not indicted until 2014, in the Eastern District of Virginia. (13) He was charged on fifteen counts, including providing material support to terrorists and conspiracy to use a weapon of mass destruction, and he pled not guilty to all of them. (14) He was found guilty of all the charges in August 2015 and given multiple life sentences. (15)

Hamidullin moved to dismiss the indictment, alleging that he was entitled to POW status--and its concomitant combatant immunity--for committing hostilities as a combatant in an armed conflict. (16) The government countered that combatant immunity did not apply because neither the Article 2 requirements (of the conflict) nor the Article 4 requirements (of the individual) of the Third Geneva Convention were satisfied. (17) The district court held evidentiary hearings on the questions, (18) but it did not determine if the conflict in Afghanistan was an IAC under Article 2. …

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