Unlawful combatant Guide, Meaning , Facts, Information and Description
Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without meeting the requirements for a lawful belligerent according to the laws of war as specified in the Third Geneva Convention. Countries that identify such unlawful combatants may not necessarily accord them the rights of prisoners of war described in the Third Geneva Convention, though they retain rights under the Fourth Geneva Convention in that they must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".
The term has been around for at least 100 years and has been used in legal literature, military manuals and case law. It was introduced into US domestic law in 1942 by a United States Supreme Court decision in the case ex parte Quirin. In this case, the Supreme Court upheld the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs in the US. This decision states (emphasis added and footnotes removed):
- "...the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."
''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:
The critical distinction is that a "lawful combatant" (defined above) cannot be held personally responsible for acts prosecuting that combat, unless they commit war crimes or crimes against humanity. And if captured, they have to be treated as prisoners of war - basically they can be detained (more humane than killing them), but must be provided for, treated with respect, and so on.
If there is any doubt about whether an alleged combatant is a "lawful combatant" then they must be held as a Prisoner of War until their status has been determined by "a competent tribunal". If that tribunal rules that the combatant is an "unlawful combatant" then their status changes to that of a civilian which may give them some rights under Fourth Geneva Convention.
A non-combatant civilian "in the hands" of an enemy or an Occupying Power often gains rights through Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August (1949) (GCIV) if they qualify as a "protected person".
But what of a combatant who does not qualify for POW status? If they qualify as a 'protected person' they get all the rights which a non-combatant civilian gets under GCIV but the Party to the conflict may invoke Articles of GCIV to curtail those rights. The relevant Articles are Article 5 and Article 42.
If after "fair and regular trial" they are found guilty of a crime then the "unlawful combatant" can be punished by whatever lawful methods are available to the Party to the conflict.
If the Party does not use Article 5 the Party may invoke Article 42 of GCIV and use "internment" to detain the "unlawful combatant".
Civilians are covered by GCIV Article 3:
The last time that American and British unlawful combatants were executed after "a regularly constituted court" was the Mercenary trial in Angola in June, 1976.
The purported legal status of "unlawful combatants" in those nations currently holding detainees under that name, has been the subject of criticism by other nations and international human rights institutions; including Human Rights Watch and the International Committee of the Red Cross. The ICRC in response to the US-led military campaign in Afghanistan published a paper on the subject
The legal situation of unlawful/unprivileged combatants (IRRC March 2003 Vol.85 No 849) and state in it:
Some governments whose nationals have been detained with this status, notably Canada, the UK, and Sweden, have intervened to limit the degree to which the rights of their nationals have been suspended. In general this has been handled on a case-by-case basis as numbers are few.
Many governments and human rights organizations worry that the introduction of the unlawful combatant status sets a dangerous precedent for other regimes to follow. When the government of Liberia detained American activist Hassan Bility in 2002, Liberian authorities dismissed the complaints of the United States, responding that he had been detained as an unlawful combatant.
This is an Article on Unlawful combatant. Page Contains Information, Facts Details or Explanation Guide About Unlawful combatant Historical basis in international law and practice
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 Prisoner of war. A lawful combatant is a person who commits belligerent acts but if captured, would be a considered POW. An unlawful combatant is someone who commits belligerent acts, but does not qualify under GCIII Articles 4 and 5.
''B. The following shall likewise be treated as prisoners of war under the present Convention:
''Article 5
These terms thus divide people in a war zone into two classes. Those in armies and militias and the like (lawful combatants), and then those who are not. Those in armies and militias and the like have the right to be treated as prisoners of war upon capture and those not in armies and militias do not have the right to be treated as prisoners of war upon capture.Persons who are not prisoners of war in an international conflict
If they fulfil the criteria they are a 'protected person' and are entitled to all the protections mentioned in GCIV. It should be emphasised that a national of neutral state, with normal diplomatic representation, in a war zone is not a protected person under GCIV.
It is likely that if they have been found to be "unlawful combatant" by "a competent tribunal" under GCIII Article 5 and they are a protected person under GCIV, that the Party to the conflict will invoke GCIV Article 5. In which case the "unlawful combatant" does not have the "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". 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."Persons who are not prisoners of war in an internal conflict
But what of a combatant who does not qualify for POW status? Then they can expect to be treated humanely and before they are punished they can expect to get a trial in "a regularly constituted court".Criticism
In the US the term unlawful combatant, critics maintain, has mainly been used to deny detainees basic civil rights, such as the right to a counsellor, a speedy trial and right of appeal. It has been argued that this gives governments a right to arbitrarily suspend the rule of law in a way that should not be accepted. See also
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