Al-Qaeda & Taliban unlawful combatant detainees, unlawful belligerency, and the international laws of armed conflict

Air Force Law Review, Spring, 2004 by Joseph P. Bialke

These essential customary international law distinctions between lawful/unlawful combatants and noncombatants prevent collateral deaths and suffering of protected civilians and other noncombatants during armed conflict. LOAC serves to protect noncombatants by providing all combatants an unambiguous positive incentive to constrain their behavior as well as the potential of future punishment for failing to do so.

3. Lawful Belligerency: Combatant's Privilege & POW Status

If a combatant follows LOAC during war, "combatant's privilege" applies and the combatant is immune from prosecution for lawful combat activities. For example, a lawful combatant may not be tried for an act (such as assault, murder, kidnapping, trespass, and destruction of property) that is a crime under a capturing party's domestic law in time of peace, when that act is committed within the context of hostilities and does not otherwise violate LOAC. (11) In addition, the captured lawful combatant receives Geneva Convention III POW status with its special rights, better conditions, and more extensive set of benefits.

Conversely, if a combatant ignores the criteria of lawful belligerency, the individual may be deemed an unlawful combatant. An unlawful combatant is also referred to with identical meaning as an illegal combatant, unprivileged combatant, franc-tireur meaning "free-shooter," unprivileged belligerent, dishonorable belligerent or unlawful belligerent. The unlawful combatant may then, upon capture in an international armed conflict at the discretion of the capturing party, forfeit combatant's privilege and Geneva Convention III POW status, and not be afforded full POW protections under Geneva Convention III. Further, if the unlawful combatant has committed grave breaches of LOAC, the individual may be tried in a military commission; and if convicted, be punished appropriately.

4. Combatant Duty to Appear Visually Distinct from Noncombatant Civilians

Of paramount importance is that all combatants have an unconditional legal duty in armed conflict to protect noncombatant civilians by distinguishing themselves visually from the civilian population. Failure to do so with perfidious intent is a violation of LOAC. Geneva Convention III mandates as one of the four essential criteria of lawful belligerency that all combatants in international armed conflict must wear distinctive dress. (12) Similarly, customary international law, the practice among states over time, provides that spies, saboteurs, terrorists, resistance groups, guerrillas, irregulars, militias, insurgents, and other combatants, if captured in an international armed conflict while impersonating protected civilians perfidiously, do not necessarily share the same advantaged fate and implicit international stature as do uniformed lawful combatants. (13) International law has long recognized that combatants who hide among and attempt to blend into civilian populations during armed conflict are uniquely dangerous to protected noncombatant civilians. (14)