Unlawful combatants (also known as unprivileged combatants or unprivileged belligerents) are civilians who directly engage in armed conflict and are therefore legally (in some, national-level systems) deemed to be no longer protected by the Geneva Conventions. The concept originated during the fin de siècle of the 19th century, with the great powers considering francs-tireurs to be unlawful combatants. During the 20th and 21st centuries, the concept of unlawful combatants has been prominently used by the United States, particularly during the war on terror; it has also seen use by the Israeli and British governments. 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 International Committee of the Red Cross has criticised the concept of unlawful combatants, pointing out that the terms "unlawful combatant", "illegal combatant" or "unprivileged combatant/belligerent" are not defined in any international agreements. While the concept of an unlawful combatant is included in the Third Geneva Convention, the phrase itself does not appear in the document. 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.
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, while all parties continue to be bound by the domestic law of that state. 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."Unlawful Combatants" in the United States: Drawing the Fine Line Between Law and War Human Rights Magazine Winter 2003, published by the American Bar Association. 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".
Status of combatants in an interstate conflict Under international humanitarian law applicable in an interstate conflict, combatants may be classified into one of two categories: privileged or unprivileged. In that sense, privileged means the retainment of prisoner of war status and impunity for the conduct prior to capture. Thus, combatants that have violated certain terms of the IHL may lose their status and become unprivileged combatants either ipso jure (merely by having committed the act) or by decision of a competent court or tribunal.
In the relevant treaties, the distinction between privileged and unprivileged is not made textually; international law uses the term combatant exclusively in the sense of what is here termed "privileged combatant".
If there is any doubt as to whether the person benefits from combatant status, they must be held as a POW until they have faced a competent tribunal (Article 5 of the Third Geneva Convention (GC III) to decide the issue.
Privileged combatants The following categories of combatants qualify for prisoner-of-war status on capture:
Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that they fulfill the following conditions: that of being commanded by a person responsible for his subordinates; that of having a fixed distinctive sign recognizable at a distance; that of carrying arms openly; that of conducting their operations in accordance with the laws and customs of war. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war; often dubbed a levée after the mass conscription during the French Revolution.
For countries that have signed the "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts" (Protocol I), combatants who do not wear a distinguishing mark still qualify as prisoners of war if they carry arms openly during military engagements, and while visible to the enemy when they are deploying to conduct an attack against them.
Unprivileged combatants
There are several types of combatants who do not qualify as privileged combatants: Combatants who would otherwise be privileged but have breached the laws and customs of war (e.g., committing perfidy or killing surrendered enemy combatants). The loss of privileges in that case only occurs upon conviction, i.e. after a competent court has determined the unlawfulness of the conduct in a fair trial. Combatants who are captured without the minimum requirements for distinguishing themselves from the civilian population, i.e. carrying arms openly during military engagements and the deployment immediately preceding it, lose their right to prisoner of war status without trial under Article 44 (3) of Additional Protocol I. Spies, i.e. persons who collect information clandestinely in the territory of the opposing belligerent. Members of the armed forces conducting reconnaissance or special operations behind enemy lines are not considered spies as long as they wear their own uniform. Mercenaries,Under Article 47 of Protocol I (Additional to the Geneva Conventions) it is stated in the first sentence "A mercenary shall not have the right to be a combatant or a prisoner of war." On 4 December 1989 the United Nations passed resolution 44/34 the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention– International Convention against the Recruitment, Use, Financing and Training of Mercenaries A/RES/44/34 72nd plenary meeting 4 December 1989 (UN Mercenary Convention). Article 2 makes it an offence to employ a mercenary and Article 3.1 states that "A mercenary, as defined in article 1 of the present Convention, who participates directly in hostilities or in a concerted act of violence, as the case may be, commits an offence for the purposes of the Convention." – International Convention against the Recruitment, Use, Financing and Training of Mercenaries . child soldiers, and civilians who take a direct part in combat and do not fall into one of the categories listed in the previous section.The relevance of IHL in the context of terrorism official statement by the ICRC 21 July 2005. "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action".Article 51(3) of Additional Protocol I "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities". (Geneva Conventions Protocol I Article 51.3).
Most unprivileged combatants who do not qualify for protection under the Third Geneva Convention do so under the Fourth Geneva Convention (GCIV),The exceptions are: "Nationals of a State which is not bound by the [Fourth Geneva] Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are." (GCIV Article 4) which concerns protected civilians, until they have had a fair and regular trial. If found guilty at a regular trial, they can be punished under the civilian laws of the detaining power.
International law and practice Interstate conflict The term "unlawful combatant" is a legal term only applicable in interstate conflicts and has been used for the past century in legal literature, military manuals, and case law. However, unlike the terms "combatant", "prisoner of war", and "civilian", the term "unlawful combatant" is not mentioned in either the Hague or the Geneva Conventions. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.Warriors without rights? combatants, unprivileged belligerents, and the struggle over legitimacy by Kenneth Watkin for The Program on Humanitarian Policy and Conflict Research.
At the First Hague Conference, which opened on 6 May 1899, there was a disagreement between the Great Powers—which considered francs-tireurs unlawful combatants subject to execution on capture—and a group of small countries headed by Belgium—which opposed the very principle of the rights and duties of armies of occupation and demanded an unlimited right of resistance for the population of occupied territories. As a compromise, the Russian delegate, F. F. Martens, proposed the Martens Clause, which is included in the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land. Similar wording has been incorporated into many subsequent treaties that cover extensions to humanitarian law.Rupert Ticehurst The Martens Clause and the Laws of Armed Conflict 30 April 1997, International Review of the Red Cross, no. 317, p. 125–134.Vladimir Pustogarov, Fyodor Fyodorovich Martens (1845–1909) – a humanist of modern times , 30 June 1996 International Review of the Red Cross, no. 312, p. 300–314.Laws of War: Laws and Customs of War on Land (Hague II) ; 29 July 1899. contained in the Avalon Project archive at Yale Law School.
Prisoners of war
The Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949 (GCIII) of 1949 defines the requirements for a captive to be eligible for treatment as a POW. A lawful combatant is a person who commits belligerent acts, and, when captured, is treated as a POW. An unlawful combatant is someone who commits belligerent acts but does not qualify for POW status under GCIII Articles 4 and 5.
These terms thus divide combatants in a war zone into two classes: those in armies and organised militias and the like (lawful combatants), and those who are not. The critical distinction is that a lawful combatant (defined above) cannot be held personally responsible for violations of civilian laws that are permissible under the laws and customs of war; and if captured, a lawful combatant must be treated as a prisoner of war by the enemy under the conditions laid down in the Third Geneva Convention.