Combatant and POW statuses are widely considered as closely linked. Thus, Article 4A GC III, which defines the conditions for the acquisition of POW status, is regarded as also implying the conditions for combatant status. These criteria are considered to reflect customary international law. Accordingly, there are two main types of combatants in international armed conflicts:
Groups in the latter category, also referred to as irregular armed forces, need to fulfil four collective criteria in order for their members to attain combatant and POW status, i.e.:
In addition to this, they must belong to a Party to the conflict.
The expert opinion is split as to whether members of regular armed forces (i.e., those falling into the first of the two categories mentioned earlier) have to also fulfil these four criteria to obtain combatant status (extensive view), or whether in their case, mere membership suffices for combatant status (mere membership approach).
The conditions for combatant status differ for States parties to AP I. AP I drops the distinction between regular and irregular forces and stipulates that the “armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates”. It adds that such forces “shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.” Furthermore, Article 44(3) AP I relaxes the conditions for combatancy in specific circumstances, normally understood as referring to occupied territories and wars of national liberation, and with respect to the obligations to wear a distinctive emblem or attire recognizable at a distance and to carry arms openly. However, the criteria of Article 4A GC III are not deprived of all relevance, even for States parties to AP I. The savings clause of Article 44(6) AP I guarantees that non-fulfilment of the conditions of AP I does not compromise POW and combatant status attained based on Article 4 GC III.
Accordingly, for States parties to AP I, all members of the armed forces of a party to the conflict qualify as combatants, except for medical and religious personnel.
In the cyber context, operators can be directly incorporated into the armed forces in the form of military cyber units; members of such units qualify as combatants under IHL. Where groups of cyber operators maintain a looser association with a Party to the conflict, they must ordinarily meet the four aforementioned conditions in order to qualify for combatant status. However, it is controversial whether cyber operators whose military operations are limited to cyberspace have to comply with the obligations to distinguish themselves with a sign recognizable at a distance and to carry arms openly; and if so, how these duties can be practically realized. If cyber operators are not integrated or assimilated in one of these ways, they retain their civilian status.
Combatant status does not exist in non-international armed conflicts.
Civilians, by contrast, are persons who do “not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43” of AP I. Any person who is not a combatant must be considered as a civilian. In case of doubt as to a person’s legal status, AP I prescribes that that person should also be considered to be a civilian. Civilians benefit from a general protection from attack. Only if civilians are directly participating in hostilities, they lose their protection from attack for such time as they do so.
Unlawful combatants are persons taking a direct part in hostilities without being entitled to do so and who therefore cannot be classified as POWs on falling into the power of the enemy. The legal status of unlawful combatants is highly contentious. On one view, unlawful combatants are civilians. Alternatively, unlawful combatants have been regarded as neither civilians nor combatants.
Notes and references
- GC III, Geneva Convention III, Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135
- Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987) 515 ; Sean Watts, ‘Who Is a Prisoner of War?’ in A Clapham, P Gaeta, and M Sassòli (eds), The 1949 Geneva Conventions: A Commentary (OUP 2015) 890 ; Emily Crawford, Identifying the Enemy: Civilian Participation in Armed Conflict (OUP 2015) 17.
- ICRC, CIHL Study, Rule 3, 11, 13; Tallinn Manual 2.0, commentary to Rule 87, para. 2.
- Art. 4 A (1) GC III.
- Art. 4 A (3) GC III.
- Art. 4 A (2) GC III; see also Tallinn Manual 2.0, commentary to Rule 87, para. 1-5.
- Art. 4A (2) GC III; Tallinn Manual 2.0, commentary to Rule 87, para. 5.
- Art. 4A (2) GC III.
- Tallinn Manual 2.0, commentary to Rule 87, para. 5-6; Agreeing e.g.: Mallison/Mallison, Levie, Wedgwood, Schmitt, Ohlin, Corn/Watkin/Williamson; disagreeing: Draper, Goldman/Tittemore, Paust, Wallach, Pfanner, LaBlanc, Watts, Mačák.
- Art. 43(1), API.
- Art. 43(1), API.
- Knut Ipsen, ´Combatants and Non-combatants´ in Dieter Fleck (ed.), Handbook of International Humanitarian Law (3rd edn OUP 2013) 90-91.
- Ian Henderson, The Contemporary Law of Targeting (Martinus Nijhoff 2009) 83.
- Art. 44(6), API.
- ICRC, CIHL Study, Rule 3.
- Tallinn Manual 2.0, commentary to Rule 87, para. 11-14; Maurizio D`Urso, ´The Cyber Combatant: a New Status for a New Warrior´ (2015) Philosophy & Technology 28, 475-478.
- ICRC, CIHL Study, Rule 3.
- Art. 50 (1) AP I; ICRC, CIHL Study, Rules 5, 17 and 18.
- Hans-Peter and Knut Dörmann, ´Protection of Civilian Population´ in Dieter Fleck (ed.), Handbook of International Humanitarian Law (3rd edn OUP 2013) 233; ICRC, CIHL Study, Rules 5, 17 and 18.
- Art. 50 (1) AP I.
- Art. 51 (2) AP I; ICRC, CIHL Study, Rules 1, 7 and 25.
- Art. 51(3) API.
- Knut Dörmann, 'The legal situation of “unlawful/unprivileged combatants”' (2003) 85(849) International Review of the Red Cross 45, 46
- Knut Dörmann, 'Unlawful combatants' in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (OUP 2014)
- Knut Dörmann, 'The legal situation of “unlawful/unprivileged combatants”' (2003) 85(849) International Review of the Red Cross 45, 72; Rene Vark, 'The status and protection of unlawful combatants' (2005) 10 Juridica Int'l 191, 198; Marco Sassòli, 'Query: Is There a Status of" Unlawful Combatant"?' (2006) Issues in International Law and Military Operations 57, 65
- Yoram Dinstein, 'Unlawful combatancy' (2003) 79(1) International Law Studies 151, 154