Unlawful combatants: a genealogy of the irregular fighter

The status of irregular fighters is one of the most contentious issues in contemporary armed conflicts. This book investigates how the dichotomy between the irregular and the regular evolved in the history of modern war. Its main assumption is that this dichotomy is neither rooted in a formative historical origin such as the emergence of the modern state system, nor in any moral purpose such as the protection of civilians. Rather it is best explained as a process of historical contingencies and formative episodes in which the marginalization of irregular fighters developed into a morally and legally accepted norm. Critical junctures in this trajectory were the French Revolutionary and Napoleonic Wars, the American Civil War, the Franco-Prussian War, the Second World War, and wars of decolonization in the second half of the twentieth century. The history of the marginalization of irregular fighters had a decisive impact on the emergence of the category of the ‘unlawful combatant‘. Rather than creating a new legal regime fit for application to wars in the twenty-first century, as many policy-makers and lawyers in the West claimed, the detention regime in the ‘war on terror’ harked back to century-old exclusionary dynamics towards irregular fighters.