LL. M., Lecturer of International Law, Institute of Law, University of Tartu
The Status and Protection of Unlawful Combatants
The term 'unlawful combatant' became better known during the recent armed conflict in Afghanistan, when the Bush administration announced its decision to classify the captured Taliban soldiers and al-Qaeda fighters as unlawful combatants and, as a consequence, to deny them prisoner-of-war status1. This has provoked a heated debate over the exact status and protection of such persons. In view of the current security situation around the world, it has been asserted ever more frequently that unlawful combatants are not entitled to any protection whatsoever under international humanitarian law. These statements are clouded in emotional rhetoric and are also dangerous, as they lead to a situation where certain persons in armed conflict are left in a legal vacuum. Yet every person has the fundamental and undeniable right to recognition before the law. It is the general principle of the four Geneva Conventions (1949)2 and their two Additional Protocols (1977)3 that every person in enemy hands must have some status under international law - that of either a prisoner of war or a civilian. There is no intermediate status: nobody in enemy hands can be outside the law4. The present article will not discuss whether unlawful combatants should be treated as prisoners of war according to the Third Convention but, instead, will first shed some light on the status of unlawful combatants and then argue that they are protected as civilians under the Fourth Convention.
Unlawful combatants do not fit into the traditional categorisation of persons in armed conflict. International humanitarian law is constructed on the understanding that all persons in armed conflict can be divided into two opposite categories: combatants and civilians. In defining these categories, the First Protocol has adopted a so-called 'negative approach', which should ensure that each person in armed conflict belongs to one category or another; i.e., there are no uncertainties, and no-one is left out. After first defining who combatants are5, the First Protocol explains that all persons who are not combatants are then inevitably civilians6. If there are doubts whether a person is a combatant or a civilian, that person must be considered to be a civilian. Such an approach is not only justified but also demanded by the fact that 'the concepts of the civilian population and of the armed forces are only conceived in opposition to each other'7.
Before taking a closer look at the status of unlawful combatants, it is necessary to speak briefly about combatants and civilians, as this aids in understanding how unlawful combatants differ from other persons in armed conflict. The conditions for combatant status can be derived from Article 4 of the Third Convention and Article 43 of the First Protocol, which elaborated upon the earlier article. Generally speaking, combatants are members of armed forces as well as members of militias or volunteer corps forming part of such armed forces8. In addition, members of other militias and volunteer corps, including those of organised resistance movements, belonging to a party to the armed conflict can also have combatant status if they (1) are commanded by a person responsible for his subordinates, (2) have a fixed distinctive sign recognisable at a distance, (3) carry arms openly, and (4) conduct their operations in accordance with the laws and customs of war9. The defining feature of combatant status is the right to participate directly in hostilities; i.e., combatants have 'a licence to kill or wound enemy combatants and destroy other enemy military objectives'10. They may even cause incidental civilian casualties and damage (collateral damage) under certain circumstances. Due to their status, combatants are entitled to combat immunity, which means that they may not be prosecuted for taking part in hostilities and for lawful acts of war. Such immunity is valid even if their behaviour (for example, intentional killing of another human being) would constitute a serious crime in peacetime. However, combat immunity is limited and does not extend to acts that transgress the rules of international law applicable in situations of armed conflict. When combatants are captured, they are entitled to prisoner?of?war status and to benefit from the protection of the Third Convention. Violations of international law applicable to armed conflict themselves do not deprive combatants of their right to be prisoners of war, except in certain limited cases11. Even if this happens, these persons are given protection equivalent in all respects to those accorded to prisoners of war12.
In contrast to combatants, civilians may not take part in hostilities, except in the relatively rare event of a levée en masse, where inhabitants of a non-occupied territory on the approach of the enemy spontaneously take up arms to resist the invading forces. If the population rises spontaneously, there is no need to be organised or to wear emblems, although they are required to carry arms openly and to respect the laws of war. The resisting civilians should not be treated as marauders or criminals, for all they have done has been to spring to the defence of their country13. Once captured, such inhabitants become prisoners of war14. Due to the prohibition to take part in hostilities, civilians enjoy general protection against dangers arising from military operations15. The belligerents must, accordingly, at all times distinguish between civilians and combatants and direct their operations only against military objectives16. If civilians, nevertheless, choose to take direct part in hostilities, they remain civilians but become lawful targets of attacks for as long as they do so. Civilians are entitled to the protection provided in the Fourth Convention.
The idea that there are only two categories of persons in armed conflict has always faced definitional challenges. Terms such as 'illegal combatants', 'unprivileged combatants', and 'unlawful combatants' have been around for as long as there have been laws governing the conduct of hostilities17. The usage and meaning of these terms have always depended on historical developments, but the idea behind them has never been very clear. There appear to be no international treaties actually providing a basis for these definitions18. One has to keep in mind that the concept of unlawful combatants is relevant only in international armed conflicts, because the law applicable to non-international armed conflicts does not foresee combatant status (thus, the issue of unlawful combatants does not arise)19.
In brief, unlawful combatants are either combatants who fail to follow the laws of war or civilians who take part directly20 in hostilities without being entitled to do so. It is most often the case that unlawful combatants disregard, in order to gain military advantage, the fundamental requirement that combatants distinguish themselves from civilians. Classic examples would be spies and saboteurs who, wearing civilian clothing, infiltrate enemy territory to collect information or to destroy designated objects. In the recent war in Iraq, the Fedayeen fighters dressed in civilian clothing and used civilians as human shields to protect themselves from attack. Another more recent, but also more alarming, form of unlawful combatants is civilians who have organised themselves as self-styled paramilitary fighters (not belonging to a party to the armed conflict). The best known real-life examples would be al?Qaeda fighters who were not incorporated in Taliban military units as part of the Taliban armed forces according to Article 4 (A) (2) of the Third Convention (at least there is no evidence of such incorporation)21. A person is not allowed to wear two hats simultaneously: that of a civilian and the helmet of a soldier. Therefore, a person who engages in military raids by night while purporting to be an innocent civilian by day is neither a combatant nor a civilian22. Such a person is a legitimate military target, but, once captured, an unlawful combatant is not entitled to prisoner-of-war status. Before the adoption of the Geneva Conventions, international law permitted armies to deal harshly with unlawful combatants, even allowing them to be shot after capture23.
The status of persons captured on the battlefield is not always clear. Whenever there are doubts whether persons, having committed a belligerent act and having fallen into the hands of the enemy, are indeed combatants or instead unlawful combatants, such persons enjoy the protection of the Third Convention until such time as their status has been determined by a competent tribunal24. The latter does not have to be a military tribunal25. The matter of unlawful combatants is further complicated by the fact that they can be divided into two distinct categories on the basis of where they carry out their missions. Firstly, there are those who operate behind enemy lines in the enemy's home territory or in the occupied territory (for example, and before all, spies and saboteurs). Secondly, there are those who operate directly in the battlefield, where the opposing parties are fighting one another (they can be called battlefield unlawful combatants). These are persons who take direct part in hostilities without being entitled to do so and pose a specific threat to the enemy as well as to civilians because they fail to meet one or more of the four conditions for combatant status, especially as regards ignoring the duty to distinguish...