The Law of War

Whereas the terms "combatant" "prisoner of war" and "civilian" are generally used and
defined in the treaties of international humanitarian law, the terms "unlawful combatant",
"unprivileged combatants/belligerents" do not appear in them. They have, however,
been frequently used at least since the beginning of the last century in legal literature,
military manuals and case law. The connotations given to these terms and their
consequences for the applicable protection regime are not always very clear.
Human Rights Watch have pointed out that in a judgement, the International Criminal
Tribunal for the Former Yugoslavia interpreted the International Committee of the Red
Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (Geneva: 1958) to mean that:
there is no gap between the Third and Fourth Geneva Conventions. If an individual is
not entitled to the protection of the Third Convention as a prisoner of war ... he or she
necessarily falls within the ambit of [the Fourth Convention], provided that its article 4
requirements [defining a protected person] are satisfied.
This does not mean that the status of unlawful combatant does not exist because in the
opinion of the ICRC "If civilians directly engage in hostilities, they are considered
'unlawful' or 'unprivileged' combatants or belligerents ... [and] They may be prosecuted
under the domestic law of the detaining state for such action".
Critics of the U.S. internment at Guantanamo Bay worry that the introduction of the
unlawful combatant status sets a dangerous precedent for other regimes to follow.
When the government of Liberia detained American activist Hassan Bility in 2002,
Liberian authorities dismissed the complaints of the United States, responding that he
had been detained as an unlawful combatant.
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