52 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights or civilian objects and the taking of hostages may take place during or in the absence of armed conflict.85 When such conduct occurs in peacetime (even during a national emergency or during internal disturbances not amounting to armed conflict) the legal framework that applies is not international humanitarian law, but that of international human rights law and domestic criminal law. However, if similar acts trigger or occur during an armed conflict, they may well constitute war crimes, and the applicable legal framework is that of international humanitarian law, coupled with international human rights law. One serious consequence of the US’s conflation of terrorism with warfare has been to label as “enemy combatants” the perpetrators of terrorist acts and members of, or persons allegedly associated with, terrorist groups outside of situations of armed conflict. As noted, international humanitarian law only applies to recognised situations of armed conflict, and the term “combatant” can have legal meaning only in the context of such conflicts. Thus, when terrorist suspects are detained in the absence of warfare, they cannot under IHL be properly classified as combatants and/or tried for war crimes. Yet, this is precisely what President Bush’s November 13, 2001 Military Order provides for.86 This measure, inter alia, authorised the detention and military trial of “enemy combatants” for “violation of the laws of war and other applicable laws”. “Enemy combatants” were defined to include any alien whom the President (in his sole discretion) determined had “engaged in, aided or abetted or conspired to commit” acts of international terrorism, regardless of whether the proscribed acts were committed, or such persons were captured, in a situation of armed conflict as understood by IHL.87 Acts of terrorism committed outside of armed conflict are criminal acts. However, they are not war crimes under international law,88 and neither the US President nor the US Congress can unilaterally make them so. Designating terrorist suspects as combatants in situations not entailing armed conflict not only has potentially draconian consequences for the persons concerned, but also utterly distorts humanitarian law’s customary and treaty-based field of application. 85 See Report of the Independent Expert on the protection of human rights and fundamental freedoms while countering terrorism, UN Doc. E/CN.4/2005/103, 7 February 2005, para. 17. 86 US White House, “Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”, 13 November 2001, available at www.whitehouse.gov/news/releases/ 2001/11. 87 See Section of the Military Order, 13 November 2001; see also subsequent definitions of “unlawful enemy combatant” contained in Section 948a of the Military Commissions Act (MCA), enacted in 2006. 88 Section 6 of the Military Commissions Instructions No. 2, 30 April 2003, includes offences such as terrorism, spying and conspiracy. Section 650v(b) of the MCA equally covers criminal conduct such as “material support to terrorism”. These are not universally considered war crimes. See also report of the Special Rapporteur on Human Rights and Terrorism, Mission to the United States of America, UN Doc. A/HRC/6/17/Add.3, 22 November 2007, para. 20.