Unlawful Combatant: Rogue Soldier, Code 237

By Fouad Sabry

What is Unlawful Combatant

A person who directly engages in armed conflict in contravention of the rules of war and is therefore alleged to not be protected by the Geneva Conventions is referred to as an unlawful combatant, an illegal combatant, or an unprivileged combatant/belligerent. Any of these terms refer to the same individual.It has been brought to the attention of the International Committee of the Red Cross that the terms "unlawful combatant," "illegal combatant," and "unprivileged combatant/belligerent" are not articulated in any of the international accords that have been established. Additionally, the phrase "illegal combatant" does not occur in the Third Geneva Convention, despite the fact that the notion of an unlawful combatant is covered in the agreement. There are certain circumstances that can qualify a person for the status of prisoner of war, and Article 4 of the Third Geneva Convention does identify those circumstances. Other international treaties prohibit mercenaries and youngsters from being considered lawful combatants. These accords make this distinction.

How you will benefit

(I) Insights, and validations about the following topics:

Chapter 1: Unlawful combatant

Chapter 2: Combatant

Chapter 3: Enemy combatant

Chapter 4: Ex parte Quirin

Chapter 5: Combatant Status Review Tribunal

Chapter 6: Hamdan v. Rumsfeld

Chapter 7: Competent tribunal

Chapter 8: Extrajudicial prisoners of the United States

Chapter 9: Detention (imprisonment)

Chapter 10: Military Commissions Act of 2006

(II) Answering the public top questions about unlawful combatant.

Who this book is for

Professionals, undergraduate and graduate students, enthusiasts, hobbyists, and those who want to go beyond basic knowledge or information for any kind of Unlawful Combatant.

• Language: English
• Publisher: One Billion Knowledgeable
• Release date: Jun 22, 2024

Book preview

Chapter 1: Unlawful combatant

An unlawful combatant, illegal combatant, or unprivileged combatant/belligerent is a person who engages in armed conflict in violation of the rules of war and, as a result, is asserted to not be protected by the Geneva Conventions. The International Committee of the Red Cross notes that these phrases are not specified in any international agreements. Article 4 of the Third Geneva Convention does define the conditions under which a person may qualify as a prisoner of war. Other international conventions deny mercenary and youngsters legitimate belligerent status.

The Geneva Conventions are applicable in conflicts involving two or more sovereign states. They do not accept any position of lawfulness for combatants in confrontations between government forces and insurgents that do not include two or more nation states. A state embroiled in such a conflict is only required by law to comply with Common Article 3 of the Geneva Conventions. All parties are otherwise entirely free to apply or not apply any of the remaining Conventions' Articles.

The Military Commissions Act of 2006 formalized the legal definition of this phrase in the United States and granted the president extensive latitude to assess whether a person may be branded an illegal enemy combatant under United States law.

In its Celebici Judgment, the International Criminal Tribunal for the Former Yugoslavia refuted the idea that unlawful combatant status exists as a distinct category from lawful combatant and civilian. The decision cited the International Committee of the Red Cross (ICRC) commentary on the Fourth Geneva Convention from 1958: Every person held by the enemy must be either a prisoner of war protected by the Third Convention or a civilian protected by the Fourth Convention. There is no limbo; no one in enemy hands may exist outside the law..

The International Humanitarian Law (often known as the norms of armed conflict) classifies soldiers as either privileged or unprivileged. In this context, privileged refers to the retention of prisoner of war status and immunity for actions committed prior to capture. Therefore, soldiers who have broken certain provisions of the IHL may lose their status and become unprivileged combatants either ipso iure (just by doing the act) or by the decision of a competent court or tribunal. Notably, the difference between privileged and unprivileged combatants is not stated in the relevant treaties; international law employs the term combatant entirely in the sense referred to here as privileged combatant..

If there is any uncertainty as to whether a person qualifies as a combatant, they must be held as POWs until a competent tribunal (Article 5 of the Third Geneva Convention) decides their status.

The following categories of captured soldiers qualify as prisoners of war::

Members of the armed forces and militias or volunteer corps of a Party to the conflict.

Members of other militias and volunteer corps, including those of organized resistance movements, belonging to a party to the conflict and acting in or outside their own territory, even if this land is occupied, so long as the following conditions are met::

nature of being directed by an individual who is accountable for his subordinates; quality of having a fixed, recognized indication from a distance; that of openly carrying weaponry; that of operating in line with the laws and practices of war.

Members of the regular military forces who swear loyalty to a government or authority not recognized by the Detaining Power.

Residents of a non-occupied region, who spontaneously pick up weapons upon the arrival of the enemy to resist the invading soldiers, Without having had time to organise into conventional military units, if they openly carry weaponry and observe the laws and customs of war; often dubbed a levée after the mass conscription during the French Revolution.

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

Several categories of warriors do not qualify as privileged combatants:

Combatants who might normally be privileged but have violated the laws and traditions of war are denied their privileges (e.g., feigning surrender or injury or killing enemy combatants who have surrendered). In this situation, the loss of rights comes only upon conviction, i.e., when a competent court has determined the illegality of the conduct through a fair trial.

Article 44 (3) of Additional Protocol I states that 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 preceding it, forfeit their right to prisoner of war status without trial.

Spies are individuals who acquire information clandestinely on the territory of the enemy. As long as they wear their uniform, members of the armed forces performing reconnaissance or special operations behind enemy lines are not considered spies.

Mercenaries, as it pertains to civilians, unless they have had a fair and regular trial. They may be punished according to the civilian laws of the detaining power if they are proven guilty in a regular trial.

The word unlawful combatant has been used in legal literature, military manuals, and case law over the past century.

The Geneva Convention related to the Treatment of Prisoners of War, 12 August 1949 (GCIII) of 1949 establishes the eligibility standards for a captive to be treated as a POW. A lawful combatant is a person who undertakes hostile acts and is treated as a POW when captured. An unlawful combatant is a person who undertakes hostile activities yet does not qualify for POW status under Articles 4 and 5 of the Third Geneva Convention.

Article 4

A. Prisoners of war within the meaning of the present Convention are members of one of the following categories who have come under the enemy's control::

Members of the armed forces of a Party to the conflict, including members of militias or volunteer corps forming part of such armed forces.

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, meet the conditions outlined below::

(a) The condition of being commanded by an individual accountable for his subordinates; (a) Having a fixed distinctive sign that is visible from a distance; That of openly carrying arms; (d) Conducting their actions consistent with the laws and norms of war.

Members of the regular armed forces who declare allegiance to a government or authority that is not recognized by the detaining power.

4. Persons who accompany the armed forces without 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 they have received authorization from the armed forces which they accompany, who shall provide them with an identity card similar to the model attached.

5. Members of crews [of civil ships and aircraft] who do not get preferential treatment under other international law provisions.

6. Residents of a non-occupied country who, upon the arrival of the enemy, spontaneously take up arms to resist the invading forces, without having had time to create regular armed units, so long as they carry arms openly and obey the norms and customs of war.

The following shall also be handled as prisoners of war in accordance with this Convention::

1. members of or former members of the armed forces of the occupied country..

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Article 5

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If there is any uncertainty as to whether persons who have committed a belligerent act and fallen into the enemy's hands belong to one of the categories listed in Article 4, such persons will enjoy the protection of this Convention until their status has been decided by a competent tribunal.

These terms split combatants in a war zone into two categories: those in armies, organized militias, and similar groups (lawful combatants), and those who are not. The crucial distinction is that a lawful combatant (as defined above) cannot be held personally liable for violations of civilian laws that are permissible under the laws and customs of war; and if captured, a lawful combatant must be treated as a prisoner of war by the enemy according to the Third Geneva Convention.

If there is any uncertainty as to whether a detained accused combatant is a lawful combatant, he or she must be held as a prisoner of war until his or her status has been confirmed by a competent tribunal..

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (GCIV) generally grants rights to civilians in the hands of the enemy if they qualify as protected persons..

Article 4. Persons protected by the Convention are individuals who, at a particular moment and in any manner, find themselves in the hands of a Party to the conflict or Occupying Power of which they are not nationals during a conflict or occupation. Nationals of a state not bound by the Convention are not covered by its protections. Nationals of a neutral State who find themselves on the territory of a belligerent State, as well as nationals of a co-belligerent State, should not be regarded as protected people so long as their home state maintains normal diplomatic representation in the state in whose possession they are.

If a person meets the criteria for a protected person, he or she is entitled to all the protections listed in GCIV. A national of a neutral state with normal diplomatic representation is not protected under GCIV in a conflict zone.

If a fighter does not qualify as a POW, then, if they qualify as a protected person, they are