Irek Hamidullin, a former Russian army officer who defected to fight against U.S. troops in Afghanistan on behalf of jihadists linked to the Taliban, has reportedly argued before a U.S. federal court that the government should treat him as a “lawful combatant” and prisoner of war (POW) who is immune to the civilian court system in the United States.
If granted POW status, Hamidullin will not likely face prosecution by a civilian court.
“They [POWs] can theoretically face prosecution before a military tribunal, but the Justice Department has not alleged war crimes of the sort that a tribunal would hear,” explains the Associated Press (AP).
However, prosecutors have cited a 2002 federal government declaration that jihadists associated with the Taliban do not qualify for lawful combatant status, notes AP.
No circumstances in the “ensuing years have undermined the reasonableness of the President’s determination,” the prosecutors reportedly argued in court filings.
According to AP, Hamidullin’s attorneys contend that their client carried out acts against U.S troops in Afghanistan during the ongoing armed conflict that began in October 2001 and should, therefore, be considered both “lawful and commonplace.”
“Though the Taliban government was ousted from power [in 2001], it has continued to fight against U.S. and Afghan forces, the lawyers note,” reports AP. “Instead of being prosecuted in a civilian court, Hamidullin should have been held as a prisoner of war like other enemy soldiers, they contend.”
“I would be very surprised if he could get any traction on this legal argument at all,” Jens David Ohlin, a Cornell University international law professor,” told AP.
However, “that isn’t to say that it’s a simple issue,” he added.
In 2009, the U.S. government captured Hamidullin after he had joined the Haqqani Network, a terrorist group in the Afghanistan-Pakistan region that has been affiliated with al-Qaeda and its ally, the Taliban.
The Russian recruit has been accused of trying to shoot down U.S. military helicopters that responded to a group of Haqqani jihadists who attacked an Afghan border police post and were allegedly led by Hamidullin himself.
In 2014, the terrorist was transferred to the United States to stand trial on charges including conspiring and attempting to kill American service members.
Although the United States and other nations have long acknowledged a distinction between acts committed by military combatants and violence carried out outside the boundaries of international conflict, the American government and Hamidullin’s lawyers are at odds on what category the Russian recruit falls into, according to AP.
Historically, combatants who have been granted POW status by the United States are exempted from prosecution by a civilian court and are typically held by the military until hostilities between the warring parties involved end.
“That means it’s unlikely Hamidullin would face further prosecution if the ruling went his way, according to defense lawyers,” AP notes, adding the Russian jihadist’s lawyers “have cited only one other criminal prosecution in the last 15 years in which a court considered whether a Taliban fighter enjoyed combatant immunity, and the judge in that case ruled for the government.”
Nevertheless, prosecutors with the Department of Justice (DOJ) argue that “Hamidullin fought not with a recognized army but with a ‘rogue band of insurgents’ that lacked a leadership hierarchy, distinctive uniform or insignia and respect for the laws and customs of war — criteria under the Geneva Convention for claiming lawful combatant status,” states AP.