Editing Unlawful combatant (section)

== 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.<ref name="icrc_dorman"/> However, unlike the terms "combatant", "prisoner of war", and "civilian", the term "unlawful combatant" is not mentioned in either the [[Hague Conventions (1899 and 1907)|Hague]] or the Geneva Conventions. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.<ref name="icrc_dorman" /><ref>[http://www.hpcr.org/pdfs/OccasionalPaper2.pdf Warriors without rights? combatants, unprivileged belligerents, and the struggle over legitimacy] {{Webarchive|url=https://web.archive.org/web/20060209160509/http://www.hpcr.org/pdfs/OccasionalPaper2.pdf |date=9 February 2006 }} by [[Kenneth Watkin]] for [http://www.hpcr.org/ The Program on Humanitarian Policy and Conflict Research]</ref>

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 to resist|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.<ref name=RT>Rupert Ticehurst ''[http://www.icrc.org/Web/Eng/siteeng0.nsf/html/57JNHY The Martens Clause and the Laws of Armed Conflict]'' 30 April 1997, ''International Review of the Red Cross'', no. 317, p.125-134</ref><ref>Vladimir Pustogarov, ''[http://www.icrc.org/Web/Eng/siteeng0.nsf/html/57JN52 Fyodor Fyodorovich Martens (1845–1909) – a humanist of modern times]'', 30 June 1996 ''International Review of the Red Cross'', no. 312, p.300-314</ref><ref>[http://www.yale.edu/lawweb/avalon/lawofwar/hague02.htm Laws of War: Laws and Customs of War on Land (Hague II)] {{Webarchive|url=https://web.archive.org/web/20070430220534/http://www.yale.edu/lawweb/avalon/lawofwar/hague02.htm |date=30 April 2007 }}; 29 July 1899. contained in the [[Avalon Project]] archive at [[Yale Law School]]</ref>

==== Prisoners of war ====
{{main|Prisoner 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.

{{Blockquote|Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

:1. Members of the [[armed forces]] of a Party to the conflict as well as members of [[militias]] or [[Military volunteer|volunteer corps]] forming part of such armed forces.

:2. 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 [[Military occupation|territory is occupied]], provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

::(a) That of being commanded by a person responsible for his subordinates;
::(b) That of having a fixed distinctive sign recognizable at a distance;
::(c) That of carrying arms openly;
::(d) That of conducting their operations in accordance with the laws and customs of war.

:3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

:4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of [[military aircraft]] crews, [[war correspondent]]s, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

:5. Members of crews [of civil ships and aircraft], who do not benefit by more favourable treatment under any other provisions of international law.

:6. 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.

B. The following shall likewise be treated as prisoners of war under the present Convention:

:1. Persons belonging, or having belonged, to the armed forces of the occupied country ...

: ...

Article 5

: ...

:Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
}}

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.

If there is any doubt about whether a detained alleged combatant is a lawful combatant then the combatant must be held as a prisoner of war until his or her status has been determined by a competent tribunal.<ref>The ICRC [http://www.icrc.org/ihl.nsf/COM/375-590008?OpenDocument Commentary on Article 5] says on the issue of ''competent tribunal'' that "At Geneva in 1949, it was first proposed that for the sake of precision the term 'responsible authority' should be replaced by 'military tribunal' (11). This amendment was based on the view that decisions which might have the gravest consequences should Hot {{sic}} be left to a single person, who might often be of subordinate rank. The matter should be taken to a court, as persons taking part in the fight without the right to do may be prosecuted for murder or attempted murder, and might even be sentenced to capital punishment (12). This suggestion was not unanimously accepted, however, as it was felt that to bring a person before a military tribunal might have more serious consequences than a decision to deprive him of the benefits afforded by the Convention (13). A further amendment was therefore made to the Stockholm text stipulating that a decision regarding persons whose status was in doubt would be taken by a 'competent tribunal', and not specifically a military tribunal.<br>
Another change was made in the text of the paragraph, as drafted at Stockholm, in order to specify that it applies to cases of doubt as to whether persons having committed a belligerent act and having fallen into the hands of the enemy belong to any of the categories enumerated in Article 4 (14). The clarification contained in Article 4 should, of course, reduce the number of doubtful cases in any future conflict.<br>
It therefore seems to us that this provision should not be interpreted too restrictively; the reference in the Convention to 'a belligerent act' relates to the principle which motivated the person who committed it, and not merely the manner in which the act was committed".
* (11) [(2) p.77] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-A, p. 388;
* (12) [(3) p.77] Ibid., Vol. III, p. 63, No. 95;
* (13) [(4) p.77] Ibid., Vol. II-B, p. 270;
* (14) [(5) p.77] Ibid., pp. 270–271;
</ref> If that tribunal rules that a combatant is an unlawful combatant then the person's status changes to that of a civilian which may give them some rights under the Fourth Geneva Convention.<ref name="bpg">[http://hrw.org/backgrounder/usa/pow-bck.htm#P56_11515 Background Paper on Geneva Conventions and Persons Held by U.S. Forces] by "[[Human Rights Watch]] Press" footnote 1: International Committee of the Red Cross, ''Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War'' (Geneva: 1958), p. 51 (emphasis in original). The International Criminal Tribunal for the Former Yugoslavia, charged with prosecuting war crimes and crimes against humanity committed during the recent conflicts in the Balkans, has explicitly affirmed this principle in a 1998 judgment, stating that "there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied". Celebici Judgment, para. 271 (1998).</ref>

==== Persons who are not prisoners of war in an interstate conflict ====
A civilian "in the hands" of the enemy often gains rights through the ''Geneva Convention Relative to the Protection of Civilian Persons in Time of War'', 12 August 1949 (GCIV), if they qualify as a [[Protected persons|protected person]].

{{Blockquote|Article 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a [[neutral country|neutral State]] who find themselves in the territory of a belligerent State, and nationals of a [[Co-belligerence|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.}}

If the individual fulfills the criteria as a protected person, they are entitled to all the protections mentioned in GCIV. Under the meaning of Article 4 of GCVI, civilians under their own national authority and of a state not party to the GCIV are not protected persons. Likewise, neutral nationals living in a belligerent country and allied citizens are not protected persons under GCIV as long their states have normal diplomatic relations with a belligerent power.

If a combatant does not qualify as a POW, then, if he or she qualify as a protected person, he or she receives all the rights which a civilian receives under GCIV, but the party to the conflict may invoke Articles of GCIV to curtail those rights. The relevant Articles are 5 and 42.

{{Blockquote|Part I. General Provisions
...
 
Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a [[espionage|spy]] or [[saboteur]], or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

...

Section II. Aliens in the territory of a party to the conflict

...

Art. 42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.
}}

It is likely that if a competent tribunal under GCIII Article 5 finds they are an ''unlawful combatant'', and if they are a protected person under GCIV, the Party to the conflict will invoke GCIV Article 5. In this case, the unlawful combatant does not have rights under the present Convention as granting them those rights would be prejudicial to the security of the concerned state. They do, however, retain the right "... to be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention",<ref>GCIV, Art. 5, § 3</ref>

If, after a ''fair and regular trial'', an individual is found guilty of a crime, he or she can be punished by whatever lawful methods are available to the party to the conflict.

If the party does not use Article 5 of GCIV, the party may invoke Article 42 of GCIV and use internment to detain the unlawful combatant.

For those nations that have ratified [[Protocol I]] of the Geneva Conventions, are also bound by Article 45.3 of that protocol which curtails GCIV Article 5.<ref name="icrc_dorman" />

{{Blockquote|Any person who has taken part in hostilities, who is not entitled to prisoner‑of‑war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.}}

=====Mercenaries=====

Under Article 47 of Protocol I (Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts) 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]].<ref>[https://www.un.org/documents/ga/res/44/a44r034.htm International Convention against the Recruitment, Use, Financing and Training of Mercenaries] A/RES/44/34 72nd plenary meeting 4 December 1989 (UN Mercenary Convention) [http://www.ohchr.org/english/law/mercenaries.htm Entry into force: 20 October 2001] {{webarchive|url=https://web.archive.org/web/20150812182322/http://www.un.org/documents/ga/res/44/a44r034.htm |date=12 August 2015 }}</ref> 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".<ref>[http://www.ohchr.org/english/law/mercenaries.htm International Convention against the Recruitment, Use, Financing and Training of Mercenaries] {{webarchive|url=https://web.archive.org/web/20150812182322/http://www.un.org/documents/ga/res/44/a44r034.htm |date=12 August 2015 }}</ref>

===== Parole violation =====
A combatant who is a POW, and who is subsequently paroled on the condition that he will not take up arms against the belligerent power (or co-belligerent powers) that had held him as a prisoner, is considered a parole violator if he breaks said condition. He is regarded as guilty of a breach of the laws of war, unless there are mitigating circumstances such as coercion by his state to break his parole. As with other combatants, they are still protected by the Third Geneva Convention (GCIII), until a competent tribunal finds them in violation of their parole.

The [[Geneva Convention on Prisoners of War (1929)|Geneva Convention (1929)]] made no mention of parole, but as it was supplemental to the Hague conventions, it relied on the wording of Hague to address this issue.<ref>[http://www.icrc.org/ihl.nsf/INTRO/305?OpenDocument Commentary on the Convention relative to the Treatment of Prisoners of War]. Geneva, 27 July 1929</ref> The authors of GCIII, 1949, decided to include a reference with some modification to parole, because during the Second World War, some belligerent countries did permit such release to some extent.<ref name=ICRC-GCIII-21>ICRC [http://www.icrc.org/ihl.nsf/COM/375-590027?OpenDocument Commentary on GCIII: Article 21]</ref>

Article 21 of GCIII (1949) reproduces the Articles 10 and 11 of the ''Hague IV: Regulations Respecting the Laws and Customs of War on Land'', 18 October 1907, but did not include Article 12, which provides: "Prisoners of war liberated on parole and recaptured bearing arms against the Government to whom they had pledged their honour, or against the allies of that Government, forfeit their right to be treated as prisoners of war, and can be brought before the courts".<ref>[http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm Laws and Customs of War on Land (Hague IV)] {{Webarchive|url=https://web.archive.org/web/20160821192933/http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm |date=21 August 2016 }}; 18 October 1907</ref> Nevertheless, contained in the commentary on GCIII: The only safeguard available to a parole violator—who has been coerced into fighting, and who has been recaptured by the Power that detained him previously—is contained in the procedural guarantees to which he is entitled, pursuant to Article 85 of GCIII.<ref name=ICRC-GCIII-21/>

In the opinion of Major Gary D. Brown, [[United States Air Force]] (USAF), this means that "[T]he Hague Convention specified that parole breakers would forfeit their right to be treated as prisoners of war if recaptured. The 1949 Geneva Convention is less direct on the issue. A recaptured parole violator under the Convention would be afforded the opportunity to defend himself against charges of parole breaking. In the interim, the accused violator would be entitled to P[o]W status".
<ref>Brown, Gary D.. ''[https://web.archive.org/web/20041020055731/http://www.au.af.mil/au/awc/awcgate/law/pow_parole.pdf Prisoner of war parole: Ancient concept, modern utility]'' The Military Law Review, Vol 156 (June 1998) p.13 ( Major Gary D. Brown in June 1998 was Chief, International and Operational Law at Headquarters, United States Strategic Command, Offutt Air Force Base, Nebraska.</ref>

=== 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>