Editing Unlawful combatant (section)

==== 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>