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Who is an Illegal Combatant?

Posted by Henric C. Jensen on July 3, 2007

Avraham Stern

“The term unlawful combatant (also unlawful enemy combatant or unprivileged combatant/belligerent) denotes a person denied the privileges of prisoner of war (POW) designation, in accordance with the Geneva Conventions; one to whom protection is recognised as due is a lawful or privileged combatant.[1] Once a combatant is found by a competent tribunal to be an unlawful combatant, he or she (“he”) no longer has the rights and privileges accorded to a POW, but he retains all the rights any other civilian would have under municipal and international law in the same situation.[2]Article 5 of the GCIII states that the status of detainee may be determined by a “competent tribunal”. Until such time, he is to be treated as a prisoner of war.[3] After a “competent tribunal” has determined his status, the “Detaining Power” may choose to accord the detained unlawful combatant the rights and privileges of the POW, as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention so that he must be “treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial”.[4]The phrase “unlawful combatant” does not appear in the Third Geneva Convention (GCIII).[1] However, Article 4 of GCIII does describe categories under which a person may be entitled to POW status; and there are other international treaties which deny lawful combatant status for mercenaries and children. In the United States, the Military Commissions Act codified the legal definition of this term, and invested the U.S. President with broad discretion to determine whether a person may be designated an unlawful enemy combatant. The assumption that such a category as unlawful combatant exists is not contradicted by the findings by the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgement quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, “There is no intermediate status; nobody in enemy hands can be outside the law,”[5] because in the opinion of the ICRC “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” From Wikipedia

Ultimately, who is a Freedom Fighter and who is a Terrorist/Illegal Combatant, from a moral perspective, is decided subjectively depending on from which perspective you are approaching the issue.From the point of view of International Law, any armed civilian or soldier in civilian garb caught behind enemy lines or in direct confrontation with enemy military is an Illegal Combatant.

In order to be considered a ‘soldier’ a civilian has to be visibly distinguished from the civilian population by some sort of marking. If this condition is met he/she is a soldier, and if captured shall be treated according to the Geneva Convention as a Prisoner of War.

This means that any civilian entering enemy territory carrying arms, explosives or in the process of aiding other civilians carrying arms or explosives is an illegal combatant, and may be shot on sight.

It also means that children (under the age of 18) who are caught either carrying weapons or armed with other implements and/or explosives to attack military personnel or civilians in enemy territory are illegal combatants and may be treated as such according to International Law. However, they are also considered Child Soldiers, as they are assumed to be commanded by their elders to carry out illegal military activity, and as such they should be treated with provisions made for their age.

Now, let’s look at Palestinian “Freedom Fighters“. According to International Law they are illegal combatants, as they wear no distinctive military mark that sets them apart from the civilian population. They are armed civilians engaging in warfare against a sovereign state, thus they are not covered by the provisions set out in the Geneva Convention, and cannot claim protection under it, so if they encounter enemy military they may either be shot on sight or captured and imprisoned, as illegal combatant. This is International Law.

This International Law is applicable to all Resistance Movements, be it Hamas, Hezbollah, IRA, ETA, the Tamil Tigers or the Sendero Luminoso.

The morality of the armed activities, the motives behind such activities or the actions of the sovereign state being attacked in this manner have no bearing on the legality of such armed activities.

We may find the struggle of the Palestinians, the Basques or the Tamil Tigers justified or justifiable by the conditions they are engaging in armed battle against, but that does not change their status under International Law.

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