The Law of War

While the concept of an unlawful combatant is included in the Third Geneva
Convention, the phrase itself does not appear in the document. Article 4 of the Third
Geneva Convention does describe categories under which a person may be entitled to
POW status, and there are other international treaties that deny lawful combatant status
for mercenaries and children. In the United States, the Military Commissions Act of
2006 codified the legal definition of this term and invested the U.S. President with broad
discretion to determine whether a person may be designated an unlawful enemy
combatant under United States law. The assumption that such a category as unlawful
combatant exists is not contradicted by the findings of the International Criminal
Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgment quoted the
1958 International Committee of the Red Cross (ICRC) commentary on the Fourth
Geneva Convention: Every person in enemy hands must be either a prisoner of war
and, as such, be covered by the Third Convention; or a civilian covered by the Fourth
Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can
be outside the law", because in the opinion of the ICRC, "If civilians directly engage in
hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents
(the treaties of humanitarian law do not expressly contain these terms). They may be
prosecuted under the domestic law of the detaining state for such action".
The Geneva Conventions do not recognize any lawful status for combatants in conflicts
not involving two or more nation states. A state in such a conflict is legally bound only to
observe Common Article 3 of the Geneva Conventions and may ignore all of the other
Articles. But each one of them is completely free to apply all or part of the remaining
Articles of the Convention.
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