Combatant

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Combatant is the legal status of an individual who has the right to engage in hostilities during an international armed conflict. The legal definition of "combatant" is found at article 43 of Additional Protocol One to the Geneva Conventions of 1949 [AP1]. It states that "Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities." [1]

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In addition to having the right to participate in hostilities, combatants have the right to the status of Prisoners of War when captured during an international armed conflict. [2] " While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war." [3]

Privileged combatants

The following categories of combatants qualify for prisoner-of-war status on capture:

  1. Members of the armed forces of a Party to the conflict as well as members of militias or 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 territory is occupied, provided that they fulfill the following conditions:
    • that of being commanded by a person responsible for his subordinates;
    • that of having a fixed distinctive sign recognizable at a distance;
    • that of carrying arms openly;
    • 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. 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.

For countries which have signed the "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts" (Protocol I), combatants who do not wear a distinguishing mark still qualify as prisoners of war if they carry arms openly during military engagements, and while visible to the enemy when they are deploying to conduct an attack against them.

Protocol I

Protocol I is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of international conflicts, where "armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes" are to be considered international conflicts. It reaffirms the international laws of the original Geneva Conventions of 1949, but adds clarifications and new provisions to accommodate developments in modern international warfare that have taken place since the Second World War.

Unprivileged combatants

There are several types of combatants who do not qualify as privileged combatants:

In the context of war, perfidy is a form of deception in which one side promises to act in good faith with the intention of breaking that promise once the unsuspecting enemy is exposed. Perfidy constitutes a breach of the laws of war and so is a war crime, as it degrades the protections and mutual restraints developed in the interest of all parties, combatants and civilians.

Surrender (military) cessation of fighting by the losing party

Surrender, in military terms, is the relinquishment of control over territory, combatants, fortifications, ships or armament to another power. A surrender may be accomplished peacefully, without fighting, or it may be the result of defeat in battle. A sovereign state may surrender following defeat in a war, usually by signing a peace treaty or capitulation agreement. A battlefield surrender, either by individuals or when ordered by officers, normally results in those surrendering becoming prisoners of war.

Espionage or spying is the act of obtaining secret or confidential information without the permission of the holder of the information. Spies help agencies uncover secret information. Any individual or spy ring, in the service of a government, company or independent operation, can commit espionage. The practice is clandestine, as it is by definition unwelcome. In some circumstances it may be a legal tool of law enforcement and in others it may be illegal and punishable by law. Espionage is a method of intelligence gathering which includes information gathering from non-disclosed sources.

If there is any doubt as to whether the person benefits from "combatant" status, they must be held as a POW until they have faced a "competent tribunal" (GCIII Art 5) to decide the issue.

Most unprivileged combatants who do not qualify for protection under the Third Geneva Convention do so under the Fourth Geneva Convention (GCIV), [7] which concerns civilians, until they have had a "fair and regular trial". If found guilty at a regular trial, they can be punished under the civilian laws of the detaining power.

Fourth Geneva Convention One of the treaties of the Geneva Convention

The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949. While the first three conventions dealt with combatants, the Fourth Geneva Convention was the first to deal with humanitarian protections for civilians in a war zone. There are currently 196 countries party to the 1949 Geneva Conventions, including this and the other three treaties.

A trial which is observed by trial judge without being partial is a fair trial. Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, the Sixth Amendment to the United States Constitution, and Article 6 of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world. There is no binding international law that defines what is not a fair trial; for example, the right to a jury trial and other important procedures vary from nation to nation.

See also

Non-combatant is a term of art in the law of war and international humanitarian law, having civilians who are not taking a direct part in hostilities; persons—such as combat medics and military chaplains—who are members of the belligerent armed forces but are protected because of their specific duties ; combatants who are placed hors de combat; and neutral persons not involved in fighting for one of the belligerents involved in a war. This particular status was first recognized under the Geneva Conventions with the First Geneva Convention of 1864.

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Civilian casualties civilians killed, injured, or imprisoned by non-civilians

Civilian casualties occurs in a general sense, when civilians are killed or injured by non-civilians, mostly law enforcement officers, military personnel, or criminals such as terrorists and bank robbers. Under the law of war, it is referred to civilians who perished or suffered wounds as a result of wartime acts. In both cases, they can be associated with the outcome of any form of action regardless of whether civilians were targeted directly or not.

In general, a civilian is "a person who is not a member of the military or of a police or firefighting force". The definition distinguishes from persons whose duties involves risking their lives to protect the public at large from hazardous situations such as terrorism, riots, conflagrations, or wars. "Criminals" are also excluded from the category.

Unlawful combatant person who directly engages in armed conflict in violation of the laws of war

Unlawful combatant, illegal combatant, unprivileged combatant/belligerent or enemy combatant are informal terms used to refer to a person who directly engages in armed conflict in violation of the laws of war or is fighting outside of internationally recognized military forces. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action. The International Committee of the Red Cross points out that the terms are not defined in any international agreements.

Law of war International laws concerning wars

The law of war refers to the component of international law that regulates the conditions for war and the conduct of warring parties. Laws of war define sovereignty and nationhood, states and territories, occupation, and other critical terms of international law.

Third Geneva Convention

The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. The Geneva Convention relative to the Treatment of Prisoners of War was first adopted in 1929, but significantly revised at the 1949 conference. It defines humanitarian protections for prisoners of war. There are 196 state parties to the Convention.

Military occupation effective provisional control of a certain power over a territory

Military or belligerent occupation is effective provisional control by a certain ruling power over a territory, which is not under the formal sovereignty of that entity, without the violation of the actual sovereign. The territory is then known as the occupied territory and the ruling power the occupant. Occupation is distinguished from annexation by its intended temporary nature, by its military nature, and by citizenship rights of the controlling power not being conferred upon the subjugated population.

International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war. It is a branch of international law which seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities, and by restricting and regulating the means and methods of warfare available to combatants.

Stress and duress is a term which has been used by the United States to describe interrogation techniques authorized for use by the United States Armed Forces upon detainees who are determined to be a threat to the United States during the War on Terrorism. These techniques are claimed to cause "inhuman and degrading treatment" but which the George W. Bush administration claims do not cause "suffering of the particular intensity and cruelty implied by the word torture".

Summary execution Execution immediately after being accused of a crime, without a fair trial

A summary execution is an execution in which a person is accused of a crime and immediately killed without benefit of a full and fair trial. Executions as the result of summary justice are sometimes included, but the term generally refers to capture, accusation, and execution all conducted simultaneously or within a very short period of time, and without any trial at all. Under international law, refusal to accept lawful surrender in combat and instead killing the person surrendering is also categorized as a summary execution.

Additional Protocol II 1977 amendment protocol to the Geneva Conventions

Protocol II is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of non-international armed conflicts. It defines certain international laws that strive to provide better protection for victims of internal armed conflicts that take place within the borders of a single country. The scope of these laws is more limited than those of the rest of the Geneva Conventions out of respect for sovereign rights and duties of national governments.

The Geneva Convention (1929) was signed at Geneva, July 27, 1929. Its official name is the Convention relative to the Treatment of Prisoners of War, Geneva July 27, 1929. It entered into force 19 June 1931. It is this version of the Geneva Conventions which covered the treatment of prisoners of war during World War II. It is the predecessor of the Third Geneva Convention signed in 1949.

Detention (imprisonment) removal of the freedom of liberty by a state

Detention is the process whereby a state or private citizen lawfully holds a person by removing his or her freedom or liberty at that time. This can be due to (pending) criminal charges preferred against the individual pursuant to a prosecution or to protect a person or property. Being detained does not always result in being taken to a particular area, either for interrogation or as punishment for a crime.

The term lawful enemy combatant is defined in the Military Commissions Act of 2006; the term is used as an exclusionary term to prevent most of those who qualify under the definition from being an unlawful enemy combatant.

Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and civilians. Distinction and proportionality are important factors in assessing military necessity in that the harm caused to civilians or civilian property must be proportional and not "excessive in relation to the concrete and direct military advantage anticipated" by an attack on a military objective.

The United Nations Mercenary Convention, officially the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, is a 2001 United Nations treaty that prohibits the recruitment, training, use, and financing of mercenaries. At the 72nd plenary meeting on 4 December 1989, the United Nations General Assembly concluded the convention as its resolution 44/34. The convention entered into force on 20 October 2001 and has been ratified by 35 states.

Geneva Conventions Treaties establishing humanitarian laws of war

The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for humanitarian treatment in war. The singular term Geneva Convention usually denotes the agreements of 1949, negotiated in the aftermath of the Second World War (1939–45), which updated the terms of the two 1929 treaties, and added two new conventions. The Geneva Conventions extensively defined the basic rights of wartime prisoners, established protections for the wounded and sick, and established protections for the civilians in and around a war-zone. The treaties of 1949 were ratified, in whole or with reservations, by 196 countries. Moreover, the Geneva Convention also defines the rights and protections afforded to non-combatants, yet, because the Geneva Conventions are about people in war, the articles do not address warfare proper—the use of weapons of war—which is the subject of the Hague Conventions, and the bio-chemical warfare Geneva Protocol.

Protected persons

Protected persons is a legal term under international humanitarian law and refers to persons who are under specific protection of the 1949 Geneva Conventions, their 1977 Additional Protocols, and customary international humanitarian law during an armed conflict.

References

  1. Additional Protocol One to the Geneva Conventions of 1949, Article 43.
  2. Third Geneva Convention, Article 4(A)(1)
  3. AP1, Art 44(2)
  4. Under Article 47 of Protocol I (Additional to the Geneva Conventions) 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 International Convention against the Recruitment, Use, Financing and Training of Mercenaries A/RES/44/34 72nd plenary meeting 4 December 1989 (UN Mercenary Convention). 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." International Convention against the Recruitment, Use, Financing and Training of Mercenaries Archived May 8, 2012, at the Wayback Machine
  5. The relevance of IHL in the context of terrorism official statement by the ICRC 21 July 2005. "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action".
  6. This point is found in Article 51.3 of the Geneva Conventions Protocol I "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities". (Geneva Conventions Protocol I Article 51.3)
  7. The exceptions are: "Nationals of a State which is not bound by the [Fourth Geneva] Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a 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." (GCIV Article 4)