Unlawful combatant

An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of war and therefore is claimed not to be protected by the Geneva Conventions.^[1]^[2]^[3] The International Committee of the Red Cross points out that the terms "unlawful combatant", "illegal combatant" or "unprivileged combatant/belligerent" are not defined in any international agreements.^[1] While the concept of an unlawful combatant is included in the Third Geneva Convention, the phrase itself does not appear in the document.^[1] Article 4 of the Third Geneva Convention does describe categories under which a person may be entitled to prisoner of war status. There are other international treaties that deny lawful combatant status for mercenaries and children.

Capture of a Franc-Tireur, by Carl Johann Lasch.

The Geneva Conventions apply in wars between two or more opposing sovereign states. They do not apply to civil wars between state forces, whether territorial or third state, and non-state armed groups. A state in such a conflict is legally bound only to observe Common Article 3 of the Geneva Conventions. All parties are otherwise completely free to either apply or not apply any of the remaining Articles of the Conventions.^[4] Article 5 of the Third Geneva Convention states that the status of detainees whose combatant status is in doubt should be determined by a competent tribunal. Until such time, they must be treated as prisoners of war.^[5] After a competent tribunal has determined that an individual is not a lawful combatant, the detaining power may choose to accord the individual the rights and privileges of a prisoner of war as described in the Third Geneva Convention, but is not required to do so. An individual who is not a lawful combatant, who is not a national of a neutral state living in the belligerent territory, and who is not a national of a co-belligerent state, retains rights and privileges under the Fourth Geneva Convention and must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".^[6]

In the United States, the Military Commissions Act of 2006 codified the legal definition of this term and invested the U.S. President with broad discretion to determine whether a person may be designated an unlawful enemy combatant under United States law.

The assumption that unlawful combatant status exists as a separate category to lawful combatant and civilian is contradicted by the findings of the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgment quoted the 1958 International Committee of the Red Cross (ICRC) commentary on the Fourth Geneva Convention: "Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. There is no intermediate status; nobody in enemy hands can be outside the law".^[7] Thus, anyone not entitled to prisoner of war status maintains the same rights as a civilian, and must be prosecuted under domestic law. Neither status exists in non-international conflict, with all parties equally protected under International Humanitarian Law.^[1]^[8]

^ ^a ^b ^c ^d Cite error: The named reference ICRC-210705 was invoked but never defined (see the help page).
^ Holmes D, Perron A (2007). "Violating ethics: unlawful combatants, national security and health professionals". J Med Ethics. 33 (3): 143–5. doi:10.1136/jme.2006.016550. PMC 2598252. PMID 17329383. The official position of the US government is that these detainees are not prisoners of war. Rather, they are unlawful combatants and, consequently, are not subject to the rules and regulations governing wartime, such as found in the Geneva Conventions. This distinction is legally suspect,12,13 but it is the basis on which the Bush administration has justified (or tolerated) torture.
^ Rowe P (2002). "Freedom fighters and rebels: the rules of civil war". J R Soc Med. 95 (1): 3–4. doi:10.1177/014107680209500102. PMC 1279138. PMID 11773342.
^ Commentary for Common Article 3 of the Geneva Conventions
^ "Unlawful Combatants" in the United States: Drawing the Fine Line Between Law and War Archived 14 October 2009 at the Wayback Machine Human Rights Magazine Winter 2003, published by the American Bar Association
^ Dörmann, Knut (March 2003). "The legal situation of unlawful/unprivileged combatants]" (PDF). IRRC. 85 (849).
^ The International Criminal Tribunal for the Former Yugoslavia "Celebici Judgment: Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No". IT-96-21-T seems to return the Appeal Judgment instead of the Trial Judgment. However, the relevant section of the Judgment is available from the University of the West of England Delalic et al. (I.T-96-21) "Celebici" 16 November 1998 Part III B, Applicable law 2. Status of the Victims as "Protected Persons". See: Para. 271 Archived 30 December 2005 at the Wayback Machine:
In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.

It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;
[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view". Jean Pictet (ed.) – Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) – 1994 reprint edition.
^ Geneva Conventions Protocol I Article 51.3 also covers this interpretation "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities".

[ICRC-210705-1] Cite error: The named reference ICRC-210705 was invoked but never defined (see the help page).

[urlViolating_ethics:_unlawful_combatants,_national_security_and_health_professionals-2] Holmes D, Perron A (2007). "Violating ethics: unlawful combatants, national security and health professionals". J Med Ethics. 33 (3): 143–5. doi:10.1136/jme.2006.016550. PMC 2598252. PMID 17329383. The official position of the US government is that these detainees are not prisoners of war. Rather, they are unlawful combatants and, consequently, are not subject to the rules and regulations governing wartime, such as found in the Geneva Conventions. This distinction is legally suspect,12,13 but it is the basis on which the Bush administration has justified (or tolerated) torture.

[urlFreedom_fighters_and_rebels:_the_rules_of_civil_war-3] Rowe P (2002). "Freedom fighters and rebels: the rules of civil war". J R Soc Med. 95 (1): 3–4. doi:10.1177/014107680209500102. PMC 1279138. PMID 11773342.

[icrc_Art3commentary-4] Commentary for Common Article 3 of the Geneva Conventions

[5] "Unlawful Combatants" in the United States: Drawing the Fine Line Between Law and War Archived 14 October 2009 at the Wayback Machine Human Rights Magazine Winter 2003, published by the American Bar Association

[icrc_dorman-6] Dörmann, Knut (March 2003). "The legal situation of unlawful/unprivileged combatants]" (PDF). IRRC. 85 (849).

[7] The International Criminal Tribunal for the Former Yugoslavia "Celebici Judgment: Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No". IT-96-21-T seems to return the Appeal Judgment instead of the Trial Judgment. However, the relevant section of the Judgment is available from the University of the West of England Delalic et al. (I.T-96-21) "Celebici" 16 November 1998 Part III B, Applicable law 2. Status of the Victims as "Protected Persons". See: Para. 271 Archived 30 December 2005 at the Wayback Machine:
In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.

It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;
[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view". Jean Pictet (ed.) – Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) – 1994 reprint edition.

[Geneva_Conventions_Protocol_I-8] Geneva Conventions Protocol I Article 51.3 also covers this interpretation "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities".

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