Editing Unlawful combatant (section)

==== 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>