5cjxburmr

4.19.1 Rules Applicable to the Treatment of Unprivileged Belligerents. Althoughunprivileged belligerents have not been recognized and protected in treaty law to the same extentas peaceful civilians and lawful combatants, 399 basic guarantees of humane treatment incustomary international law (i.e., elementary considerations of humanity) protect unprivilegedbelligerents. 400 Moreover, some treaty protections apply to certain unprivileged belligerents. 401In some cases, U.S. practice has, as a matter of domestic law or policy, affordedunprivileged belligerents more favorable treatment than they would be entitled to receive underinternational law. 402 Nonetheless, U.S. practice has also recognized that unprivilegedbelligerents should not be afforded the distinct privileges afforded lawful combatants and theprotections afforded peaceful civilians under the law of war. 4034.19.2 Unprivileged Belligerents – Conduct of Hostilities. Although unprivilegedbelligerents lack the right to engage in hostilities, international law nevertheless requires thatthey observe the same duties as lawful combatants during their conduct of hostilities. 404In addition, unprivileged belligerents are generally subject to the same liabilities to whichcombatants are subject in the conduct of hostilities; i.e., they may be made the object of attack byenemy combatants. Unprivileged belligerents placed hors de combat, however, may not be madethe object of attack, and must be treated humanely.4.19.3 Unprivileged Belligerents – Detention. Unprivileged belligerents are liable tocapture and detention, like lawful combatants.4.19.3.1 Humane Treatment. Although unprivileged belligerents are not entitledto the privileges of POW status, unprivileged belligerents, like all other detained persons, mustbe treated humanely. In particular, they, like all other detainees, must receive, at a minimum, thefundamental guarantees of humane treatment described in Common Article 3 of the 1949Geneva Conventions. 405 In addition, the United States has explicitly supported, out of a sense of399 Refer to § 4.3.1 (“Unprivileged Belligerents” as a Category in Treaty Law).400 Refer to § 3.1.1.2 (Applying Law of War Standards as Reflecting Minimum Legal Standards).401 See, e.g., GPW art. 3; GC art. 5.402 See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008) (affording the constitutional privilege of habeas corpus toaliens detained as unprivileged belligerents at Guantanamo); U.S. MILITARY ASSISTANCE COMMAND VIETNAMDIRECTIVE 381-46, Military Intelligence: Combined Screening of Detainees Annex A 4.a.(2)-(3) (Dec. 27, 1967),reprinted in 62 AJIL 766-67 (classifying as POWs members of certain categories of guerilla or insurgent unitsprovided that they were not engaged in acts of terrorism, sabotage, or spying while captured).403 Refer to, e.g., § 4.6.1.2 (AP I and the GPW 4A(2) Conditions); FRANCIS LIEBER, GUERRILLA PARTIESCONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF WAR 22 (1862) (“no army, no society, engaged in war,any more than a society at peace, can allow unpunished assassination, robbery, and devastation, without the deepestinjury to itself and disastrous consequences, which might change the very issue of the war.”).404 Refer to § 4.4.1 (Combatants – Conduct of Hostilities).405 Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).163