Commenting on the atrocious slaughter of the elderly parish priest of the church of St Etienne in Rouen, north of Paris, French President, Francois Hollande, said, “It is a war”. There is nothing remarkable about that, we might think. He, and others, have said that sort of thing before. The question is, does he (and the others) really mean it? Because, if he does, some interesting questions arise. To begin with, what are we to say of Adel Kermiche and Abdelmalek Petitjean who were jointly responsible for cutting the throat of the 85 year-old priest and holding his congregation hostage?
Are they combatants in that war?
According to Protocol II to the Geneva Conventions of 1949 combatants are persons who are ‘participating in hostilities’. They do not need to be wearing uniforms or carrying weapons openly, as was traditionally required under Geneva for combatant status. In my view it is plausible to see Adel Kermiche and his associate as combatants in the war to which President Holland refers, in the literal sense of using violent means to secure a political end. Of course, this conclusion is academic in this case, since both men were killed. But suppose they had both fallen into the custody of the French authorities before they had perpetrated the attack, would it not have been appropriate, indeed prudent, to have held them as ‘combatants’?
In the conventional war context, soldiers do not have to have done something specific to be liable to assault or capture by their adversary. They merely have to be part of a military force of a party to the conflict in time of war, or, as Protocol II has it, ‘participating in hostilities’. Both of the Rouen killers had, apparently, tried to go to Syria to join the fight and both were ‘known to the authorities’ for their affiliation to the ISIS cause. Wasn’t this enough? It was apparently enough for both of them to have already been placed on the French “S” Security list, used to flag an individual considered to be a serious threat to national security. But it was not enough to place them into some sort of protective custody (protective of French society that is).
There is another thing that might be noted, if we were to follow the notion of M. Hollande and others, that we are talking of war, and that concerns the duration of the incarceration. In the case of the POWs of conventional war, the principle is that they are held indefinitely and released when the war is over! Depending on how the category of ‘combatant’ is defined for this kind of war, this might provide a mechanism for reducing the threat from Islamic terrorism. Certainly, it might be more practical than the perpetual hand-wringing and empty ceremonial after every atrocity, together with copious asides about the difficulty of guarding every church, theatre, school, fireworks display, station or airport.
Of course, I understand that what is being suggested here is a challenge to civil law in a democratic society. I might have said, ‘ a democratic society at peace’ and that is the critical issue. How bad would it have to get before we recognise that there are adversary fighters amongst us and that we can identify them and neutralise their potential before they strike.
If it is ‘war’ and these individuals are ‘adversary combatants’ isn’t it entirely appropriate that they be held for the ‘duration’?