A privileged combatant
is a person who takes a direct part in the hostilities of an armed conflict within the law of war
and is someone who upon capture qualifies as a prisoner of war
under the Third Geneva Convention
(GCIII). An unlawful combatant
is a civilian
, such as a mercenary
, who takes a direct part in the hostilities, but who upon capture does not qualify for prisoner of war status.
To qualify for prisoner of war status persons waging war must have the following characteristics to be protected by the laws of war:
- Members of the armed forces of a Party to the conflict
- or members of militias not under the command of the armed forces
or are members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
or inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
- that of being commanded by a person responsible for his subordinates;
- that of having a fixed distinctive sign recognizable at a distance;
- that of carrying arms openly;
- that of conducting their operations in accordance with the laws and customs of war.
If a combantant does not qualify for 'combatant' status, criminal jurisdiction comes into play, and in the US, police powers are sustained by the states.
For those countries which have signed the "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts" (Protocol I) the definition of "combatant" is altered by
- Article 44 .3
- ...Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly::
- (a ) During each military engagement, and
- (b ) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
Hors de combat: a combatant who has surrendered or been captured becomes a prisoner of war (POW).
If there is any doubt as to whether the person benefits from "combatant" status, they must be held as a POW until they have faced a "competent tribunal" (Additional Protocol I Art 45(1)) to decide the issue. Combatants who may be deemed not to benefit from such protection accorded by the Third Geneva Convention include spies, mercenaries, members of militias not under the command of the armed forces who do not fit into the categories specified above, and those who have breached other laws or customs of war (for example by fighting under a white flag).
Most combatants who do not qualify for protection under the Third Geneva Convention do so under the Fourth Geneva Convention (GCIV), which concerns civilians, until they have had a "fair and regular trial". If found guilty at a regular trial, they can be punished under the civilian laws of the detaining power. The last time that American and British unlawful combatants were executed after "a regularly constituted court" was Luanda Trial in Angola in June 1976.