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What is an Unlawful Combatant?

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  • Written By: Elizabeth West
  • Edited By: Allegra J. Lingo
  • Last Modified Date: 18 November 2016
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Unlawful combatants are militants or civilians acting with hostile intent outside the rules of war set by international humanitarian law. Under Article III of the 1949 Third Geneva Convention (GCIII), an unlawful combatant must be treated humanely even without prisoner of war (POW) status. Governments eliminate the threat by seeking them out and capturing them or by targeted killing. International human rights groups are concerned that detaining people as unlawful combatants gives governments leeway to treat them in an inhumane manner.

Terrorism groups do not belong to an army or organized state-run militia, and they do not have state approved sanction to engage in battle against enemy soldiers. They are considered irregular military, outside the conventional armies, and often engage in stealth tactics and hit-and-run attacks. Sanctioned special forces often adopt these same strategies, using them in their own conflicts and in turn against an unlawful combatant they have targeted.

The provisions of the GCIII pertaining to POWs include openly carrying arms, belonging to a state-sanctioned army or militia that has a distinctive sign like a uniform or insignia, and being under the command of a person responsible for subordinates. They must conduct their operations in accordance with recognized rules of combat. Irregular military groups do not generally satisfy these requirements.

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Under emergency law, the governing body or individual of a nation is often given unprecedented power to expand authority or enact legislation that curtails citizens’ rights and freedoms. The global war on terror has caused some nations to institute curfews, searches, martial law, and surveillance to root out the terrorist and unlawful combatant cells. Attempts by these groups to use protected people and properties as shields are violations of accepted laws of war.

Targeted killing is the extermination of an unlawful combatant taking part in an armed conflict or terrorism activities, and is not protected under the GCIII. Human rights groups have raised questions about the morality of a secretive “hit list” and its possible violation of international law, which prohibits execution without due process. They argue that faulty intelligence increases collateral damage and kills innocent civilians. The targeted killing of an unlawful combatant is defended not as assassination but as a defensive action.

An unlawful combatant may be subject to domestic law in the country of detention or a military tribunal. Before being declared as such, humane treatment must be given under the GCIII. This precludes the use of torture, humiliation, degradation, and execution. The United Nations Convention Against Torture commits signatory nations to avoiding severe mistreatment even in wartime. Although the majority of the world has adopted the Convention, human rights groups have found these acts against the unlawful combatant still occur.

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serenesurface
Post 3

I'm reading a paper on this right now. It defines an unlawful combatant as someone who has supported hostility against the U.S. both materially and purposefully. I think that's a very wide definition. It doesn't necessarily require an action. It can just be support of hostility as well.

I'm not sure if this is the definition that we use legally in the U.S. right now. But if it is, that would make a lot of people, even leaders of some countries unlawful combatants because of their financial support towards terrorists.

burcidi
Post 2

I can think of at least two situations where ethnic groups and combatants of these groups as being considered unlawful because they are demanding autonomy from a state.

One example is Chechnya and another is Kurdistan. Both of these want a separate state of their own and literally run their own governments and have their own "armies." But they are not recognized as states, and that is why their combatants are considered unlawful and are killed.

What I would like to know is, if these places became states in the future, would there be legal consequences for the previous treatment of these combatants?

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