Afghan National Army soldiers conducting a patrol in 2011, during the War in Afghanistan. They would be considered combatants in the war.

Combatant is the legal status of a person entitled to directly participate in hostilities during an armed conflict, and may be intentionally targeted by an adverse party for their participation in the armed conflict. Combatants are not afforded immunity from being directly targeted in situations of armed conflict and can be attacked regardless of the specific circumstances simply due to their status, so as to deprive their side of their support.

In an interstate conflict, the definition of "combatant" is found in Article 43 (2) of Additional Protocol I to the 1949 Geneva Conventions: "Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third [Geneva] Convention) are combatants, that is to say, they have the right to participate directly in hostilities."[1] Combatants when captured by an opposing party are automatically granted the status of protected persons,[2] whether as prisoners of war or unlawful combatants.[3]

In a non-interstate armed conflict, combatants who fought with non-state armed groups are not afforded immunity for taking part in hostilities, as insurrection is a crime under the domestic law of most nations. Therefore, they can be prosecuted by the territorial state or intervening third state for simply taking up arms.[4]

Distinction between combatants and protected civilians

In an interstate conflict, the requirement of distinction between combatants and protected civilians lies at the root of the jus in bello. It is reflected in Article 48 of Additional Protocol I of 1977 to the 1949 Geneva Conventions for the Protection of War Victims, entitled "Basic rule": "the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations only against military objectives."[5]

In a non-interstate conflict, no requirement of distinction exists under Additional Protocol II to the 1949 Geneva Conventions. However, it did state under Article 13 of the protocol that civilians "shall enjoy general protection against the dangers arising from military operations" until "they take a direct part in hostilities."[6]

Status of combatants

Interstate armed conflict

Under international humanitarian law applicable to interstate armed conflict, combatants may be classified in one of two categories: privileged or unprivileged. In that sense, privileged means the retainment of prisoner of war status and impunity for the conduct prior to capture. Thus, combatants that have violated certain terms of the IHL may lose their status and become unprivileged combatants either ipso jure (merely by having committed the act) or by decision of a competent court or tribunal. In the relevant treaties, the distinction between privileged and unprivileged is not made textually; international law uses the term combatant exclusively in the sense of what is here termed "privileged combatant".

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" (Article 5 of the Third Geneva Convention) to decide the issue.

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; often dubbed a levée after the mass conscription during the French Revolution.

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.

Unprivileged combatants

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

  • Combatants who would otherwise be privileged but have breached the laws and customs of war (e.g., committing perfidy or killing surrendered enemy combatants). The loss of privileges in that case only occurs upon conviction, i.e. after a competent court has determined the unlawfulness of the conduct in a fair trial.
  • Combatants who are captured without the minimum requirements for distinguishing themselves from the civilian population, i.e. carrying arms openly during military engagements and the deployment immediately preceding it, lose their right to prisoner of war status without trial under Article 44 (3) of Additional Protocol I.
  • Spies, i.e. persons who collect information clandestinely in the territory of the opposing belligerent. Members of the armed forces conducting reconnaissance or special forces behind enemy lines are not considered spies as long as they wear their own uniform.
  • Mercenaries,[7] child soldiers, and civilians who take a direct part in combat and do not fall into one of the categories listed in the previous section.[8][9]

Most unprivileged combatants who do not qualify for protection under the Third Geneva Convention do so under the Fourth Geneva Convention (GCIV),[10] which concerns protected 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.

Non-interstate armed conflict

In a non-interstate armed conflict, combatants who fought with non-state armed groups are not afforded immunity for taking part in hostilities, as insurrection is a crime under the domestic law of most nations. Therefore, they can be prosecuted by the territorial state or intervening third state for simply taking up arms.[4] On October 7, 2021, a former Taliban commander was indicted by a federal grand jury in New York for the June 26, 2008 attack on an American military convoy that killed three U.S. soldiers and their Afghan interpreter, and October 27, 2008 shooting down of a U.S. military helicopter during the War in Afghanistan[11] (the conflict became non-interstate not long after the United States invasion of Afghanistan ended on December 7, 2001).[12][13]

See also

References

  1. ↑ "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977". International Committee of the Red Cross.
  2. ↑ Third Geneva Convention, Article 4(A)(1)
  3. ↑ AP1, Art 44(2)
  4. 1 2 "Nonstate Armed Groups". The Practical Guide to Humanitarian Law.
  5. ↑ Article 48 - Basic rule IHL Databases
  6. ↑ "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.: Commentary of 1987: Article 13 - Protection of the civilian population". International Humanitarian Law Datebases.
  7. ↑ 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
  8. ↑ 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".
  9. ↑ Article 51 (3) of Additional 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)
  10. ↑ 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)
  11. ↑ "Former Taliban Commander Charged with Killing American Troops in 2008". United States Department of Justice's Office of Public Affairs. October 7, 2021.
  12. ↑ Michael N. Schmitt (2009). "Targeting and International Humanitarian Law in Afghanistan". International Law Studies. 85: 308.
  13. ↑ Annyssa Bellal, Gilles Giacca, and Stuart Casey-Maslen (March 2011). "International law and armed non-state actors in Afghanistan" (PDF). International Law Studies. International Review of the Red Cross. 93 (881): 52.{{cite journal}}: CS1 maint: multiple names: authors list (link)
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