Science Fair Project Encyclopedia
Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without meeting the requirements for a lawful combatant according to the laws of war as specified in the Third Geneva Convention.
Belligerents that identify such unlawful enemy combatants may not necessarily accord them the rights of prisoners of war as described in the Third Geneva Convention. Unlawful combatants may 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 United States administration uses the term illegal enemy combatant to describe people detained by the United States under some Presidential military orders. However as the United States' courts have not yet ruled that any of the detainees have faced a "competent [military] tribunal", this phrase is not a legal description of the detainees status.
International law and practice
The term has been around for at least 100 years and has been used in legal literature, military manuals and case law. However unlike the terms "combatant" "prisoner of war" and "civilian" the term "unlawful combatant", or similar, is not mentioned in either the Hague or the Geneva Conventions. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.
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 (POW). 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.
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 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 such militias or volunteer corps, including such organized resistance movements, fullfil 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 correspondents, 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...
- 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 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.
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.
Persons who are not prisoners of war in an international conflict
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".
- 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 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.
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.
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.
- 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 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 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."
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".
Persons who are not prisoners of war in an internal conflict
Civilians are covered by GCIV Article 3:
- 1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
- (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
- An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
- The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
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".
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 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."
The Supreme court ruling on the Quirin case was over sixty years ago; since then the United States has signed and ratified the 1949 Geneva Conventions, which are, therefore, considered to be a part of US domestic law. The court cases which are currently grinding their way through the US judicial system should clarify the US domestic legal position and its precived international treaty obligations.
In the wake of the [September 11, 2001 attacks]] the United States Congress passed a resolution know as the Authorization for Use of Military Force (AUMF)on September 18 2001. In this Congress invoked the War Powers Resolution and stated:
- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Using the authorization granted to him by Congress, on November 13, 2001, President Bush issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism"Is Criminal Justice a Casualty of the Bush Administration's 'War on Terror'?" in American Bar Association's Human Right Magazine, Winter 2004
- Daniel Kanstroom: "'Unlawful Combatants' in the United States - Drawing the Fine Line Between Law and War" in American Bar Association's Human Right Magazine, Winter 2003
- Knut Dörmann: "The legal situation of unlawful/unprivileged combatants". Article in the International Review of the ICRC, March 2003
- People for the American Way's critical report "Undermining the Bill of Rights" with extensive legal references
- Michael Dorf: What is an "Unlawful combatant," and why it matters: The Status Of Detained Al Qaeda And Taliban Fighters Published by FindLaw January 23, 2002. Dorf is Vice Dean and Professor of Law at Columbia University.
- Eurolegal Services' highly critical article on the Bush administration's detention practices at Guantanamo Bay.
- Christiane Wilke: War v. Justice:Terrorism Cases, Enemy Combatants, and Political Justice in U.S. Courts (PDF)
- The Yale Law Journal: A Small Problem of Precedent: per 18 U.S.C. § 4001(a) and the Detention of U.S. Citizen "Enemy Combatants" (PDF)
- U.S. Supreme Court Reviews Cases on Detainees
- US Congress' joint resolution of September 18, 2001 Authorization for Use of Military Force ("AUMF"); public law 107-40, 115 Stat. 224
- ⇧ President George W. Bush's Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism; 66 FR 57833 backup site
- ⇧ Q&A: US Supreme Court Guantanamo ruling Source BBC
- ⇧ Hamden v. Rumsfeld summary, full txt (PDF File) – U.S. District Court for the District of Columbia, presiding Judge James Robertson
- ⇧ Authorization for Use of Military Force: Padilla v. Bush: Jose Padilla under the Joint Resolution The Syracuse Journal of International Law and Commerce, issued by the Syracuse Collage of Law
- ⇧ Appeals Court Says Bush Can't Hold U.S. Citizen Published on Thursday, December 18, 2003 by Reuters
- ⇧ Judge Says Terror Suspect Can't Be Held as an Enemy Combatant The New York Times March 1, 2005
- ⇧ The legal situation of unlawful/unprivileged combatants (IRRC March 2003 Vol.85 No 849)
- ⇧ Comments on the Arrest and Detention of Journalist Hassan Bility in Liberia Press Statement by Richard Boucher, Spokesman in the U.S State Department, July 8, 2002
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