Editing Unlawful combatant (section)

=== Non-interstate conflict ===
Persons not taking part in fighting in a non-interstate conflict are covered by Common Article 3 of the Geneva Conventions:

{{Blockquote|Article 3
:1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ''[[hors de combat]]'' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

:...

:(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

: ...

:The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

:...}}

Under Common Article 3 of the Geneva Conventions, persons under physical control or custody by a party to the conflict should be treated humanely, and if tried "sentences must ... be pronounced by a regularly constituted court".<ref>[[s:First Geneva Convention#Article 3|Geneva Conventions Common Article 3]]</ref>

Nations that have ratified [[Protocol II]] of the Geneva Conventions are legally bound by Article 6 of the Protocol, which extends how the prosecution of persons should be carried out. For instance, defendants cannot be [[Self-incrimination|compelled to testify against themselves]] and sentenced to [[capital punishment]] if they are under the age of 18, pregnant women, or mothers of young children.<ref name="JVDO">{{cite web|url=https://guide-humanitarian-law.org/content/article/3/non-state-armed-groups/|title=The Practical Guide to Humanitarian Law: Nonstate Armed Groups|publisher=[[Médecins Sans Frontières]]}}</ref>

Since the status of a non-state armed group is not legally recognized in a non-interstate armed conflict, defendants can be sentenced by the legal system of either the territorial or intervening third state for simply taking part in combat against them.<ref name="JVDO"/> On 7 October 2021, a former [[Taliban]] commander was indicted by a federal grand jury in New York for the 26 June 2008 attack on an American military convoy that killed three U.S. soldiers and their Afghan interpreter, and 27 October 2008 shooting down of a U.S. military helicopter during the [[War in Afghanistan (2001–2021)|War in Afghanistan]]<ref>{{cite web|url=https://www.justice.gov/opa/pr/former-taliban-commander-charged-killing-american-troops-2008|title=Former Taliban Commander Charged with Killing American Troops in 2008|date=7 October 2021|publisher=[[United States Department of Justice]]'s Office of Public Affairs}}</ref> (the conflict became non-interstate not long after the [[United States invasion of Afghanistan]] ended on 7 December 2001).<ref>{{cite journal|author=[[Michael N. Schmitt]]|date=2009|title=Targeting and International Humanitarian Law in Afghanistan |url=https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1126&context=ils#page=2|journal=International Law Studies|volume=85|pages=308}}</ref><ref>{{cite journal|author=Annyssa Bellal, Gilles Giacca, and Stuart Casey-Maslen|date=March 2011|title=International law and armed non-state actors in Afghanistan|url=https://www.corteidh.or.cr/tablas/r27089.pdf#page=6|journal=International Law Studies|volume=93|issue=881|pages=52|publisher=[[International Review of the Red Cross]]}}</ref>

The last time that American and British unlawful combatants were executed, after a regularly constituted court, was the [[Luanda Trial]] as mercenaries.<ref>[http://news.bbc.co.uk/onthisday/hi/dates/stories/june/28/newsid_2520000/2520575.stm 1976 June 28: Death sentence for Angolan mercenaries] [[BBC]]</ref>