The phrase "unlawful combatant" does not appear in the Third Geneva Convention (GCIII). However, Third Geneva Convention#Article 4 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. 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 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 Article 3 of the Geneva Conventions and may ignore all the other Articles. But each one of them is completely free -- and should be encouraged -- to apply all or part of the remaining Articles of the Convention.
At the First Hague Conference, which opened on 6 May 1899, there was a disagreement between the Great Powers—which considered francs-tireurs to be unlawful combatants subject to execution on capture—and a group of small countries headed by Belgium—which opposed the very principle of the rights and duties of armies of occupation and demanded an unlimited right of resistance for the population of occupied territories. As a compromise, the Russian delegate, F. F. Martens, proposed the Martens Clause, which is included in the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land. Similar wording has been incorporated into many subsequent treaties that cover extensions to humanitarian law.
The Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949 (GCIII) of 1949 defines the requirements for a captive to be eligible for treatment as a POW. A lawful combatant is a person who commits belligerent acts, and, when captured, is treated as a POW. An unlawful combatant is someone who commits belligerent acts but does not qualify for POW status under GCIII Articles 4 and 5.
These terms thus divide combatants in a war zone into two classes: those in armies and organised militias and the like (lawful combatants), and those who are not. The critical distinction is that a "lawful combatant" (defined above) cannot be held personally responsible for violations of civilian laws that are permissible under the laws and customs of war; and if captured, a lawful combatant has to be treated as a prisoner of war by the enemy Power under the conditions laid down in the Third Geneva Convention.
If there is any doubt about whether a detained alleged combatant is a "lawful combatant" then the combatant must be held as a prisoner of war until his or her status has been determined by "a competent tribunal". If that tribunal rules that a combatant is an "unlawful combatant" then the person's status changes to that of a civilian which may give them some rights under the Fourth Geneva Convention.
If he fulfils the criteria as a protected person, he is entitled to all the protections mentioned in GCIV. It should be emphasised that, in a war zone, a national of a neutral state, with normal diplomatic representation, is not a protected person under GCIV.
But what of a combatant who does not qualify for POW status? If he qualifies as a protected person, he receives all the rights which a non-combatant civilian receives under GCIV, but the Party to the conflict may invoke Articles of GCIV to curtail those rights. The relevant Articles are 5 and 42.
It is likely that if he is found to be an "unlawful combatant" by "a competent tribunal" under GCIII Article 5, and if he is a protected person under GCIV, that the Party to the conflict will invoke GCIV Article 5. In which case, the "unlawful combatant" does not have the "rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State." he does, however, retain the right "to be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention."
If, after "fair and regular trial", he is found guilty of a crime, then the "unlawful combatant" can be punished by whatever lawful methods are available to the Party to the conflict.
If the Party does not use Article 5 of GCIV, the Party may invoke Article 42 of GCIV and use "internment" to detain the "unlawful combatant".
For those Parties that have ratified Protocol I of the Geneva Conventions, are also bound by Article 45.3 of that protocol which curtails GCIV Article 5.
A combatant who does not qualify for POW status can, under the provisions of the Geneva Conventions, expect to be treated humanely; and before he is punished, can expect to get a trial in "a regularly constituted court."
The Geneva Convention (1929) made no mention of parole, but as it was supplemental to the Hague conventions, it relied on the wording of Hague to address this issue. The authors of GCIII, 1949, decided to include a reference with some modification to parole, because during the Second World War, some belligerent countries did permit such release to some extent.
Article 21 of GCIII (1949) reproduces the Articles 10 and 11 of the Have IV: Regulations Respecting the Laws and Customs of War on Land, 18 October, 1907, but did not include Article 12, which provides: "Prisoners of war liberated on parole and recaptured bearing arms against the Government to whom they had pledged their honour, or against the allies of that Government, forfeit their right to be treated as prisoners of war, and can be brought before the courts. Nevertheless, contained in the commentary on GCIII: The only safeguard available to a parole violator—who has been coerced into fighting, and who has been recaptured by the Power that detained him previously—is contained in the procedural guarantees to which he is entitled, pursuant to Article 85 of GCIII.
In the opinion of Major Gary D. Brown, United States Air Force (USAF), this means that "[T]he Hague Convention specified that parole breakers would forfeit their right to be treated as prisoners of war if recaptured. The 1949 Geneva Convention is less direct on the issue. A recaptured parole violator under the Convention would be afforded the opportunity to defend himself against charges of parole breaking. In the interim, the accused violator would be entitled to P[o]W status."
Under Article 47 of Protocol I (Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts) it is stated in the first sentence "A mercenary shall not have the right to be a combatant or a prisoner of war."
On 4 December 1989 the United Nations passed resolution 44/34 the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention. Article 2 makes it an offence to employ a mercenary and Article 3.1 states that "A mercenary, as defined in article 1 of the present Convention, who participates directly in hostilities or in a concerted act of violence, as the case may be, commits an offence for the purposes of the Convention.
The United Nations Convention on the Rights of the Child, Article 38, (1989) proclaimed: "State parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities".
In a 2003 briefing for the 4th UN Security Council open debate on children and armed conflict by Human Rights Watch they state in their introduction that:
On July 26, 2005, the United Nations Security Council unanimously passed UN Security Council Resolution 1612, the sixth in a series of resolutions about children and armed conflict. Resolution 1612 established the first comprehensive monitoring and reporting system for enforcing compliance among those groups using child soldiers in armed conflict.
The validity of this case, as basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions, has been disputed. A report by the American Bar Association commenting on this case, states:
Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions, which are, therefore, considered to be a part of US municipal law, in accordance with the Supremacy Clause in the Constitution of the United States. In addition the US Supreme Court invalidated this premise, in Hamdan v. Rumsfeld, by ruling that Common Article Three of the Geneva Conventions applies to detainees in the War on Terror, and that the Military Tribunals used to try these suspects were in violation of US and international law. These technicalities were resolved so that enemy combatants and unlawful enemy combatants may be tried under the Military Commissions Act of 2006.
Using the authorization granted to him by Congress, on November 13, 2001, President Bush issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals", where such individuals are a member of the organization known as al Qa'ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely.
The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order. The military order uses the term "detainees" to describe the individuals detained under the military order. The U.S. administration chooses to describe the detainees held under the military order as "illegal enemy combatants".
With the U.S. invasion of Afghanistan some lawyers in the Justice Department's Office of Legal Counsel and in the office of White House counsel Alberto Gonzales advised President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the War on Terrorism. This applied not only to members of al Qa'ida but the entire Taliban, because, they argued, Afghanistan was a "failed state.
Despite opposition from the U.S. State Department, which warned against ignoring the Geneva Conventions, the Bush administration thenceforth began holding such individuals captured in Afghanistan under the military order and not under the usual conditions of Prisoners of War . For those U.S. citizens detained under the military order, US officials, such as Vice President Dick Cheney, argue that the urgency of the post-9/11 environment called for such tactics in administration's war against terrorism.
Most of the individuals detained by the U.S. military on the orders of the U.S. administration were initially captured in Afghanistan. The foreign detainees are held in the Guantanamo Bay detention camp established for the purpose at the Guantanamo Bay Naval Base, Cuba. Guantanamo was chosen because, although it is under the de facto control of the United States administration, it is not a sovereign territory of the United States, and a previous Supreme Court ruling Johnson v. Eisentrager in 1950 had ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA.
In Rasul v. Bush the Supreme Court ruled that "the US Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas. and that as the United States had complete jurisdiction, the federal courts has the authority under the federal habeas corpus statute to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned. This ruling largely overturned the judicial advantage for the U.S. administration of using the Naval Base, that Johnson v. Eisentrager seemed to have conferred.
Yaser Hamdi was captured in Afghanistan in 2001. He was taken to Guantanamo Bay Naval Base, but was transferred to jails in Virginia and South Carolina after it became known that he was a U.S. citizen. On September 23 2004, the United States Justice Department agreed to release Hamdi to Saudi Arabia, where he is also a citizen, on the condition that he gave up his U.S. citizenship. The deal also bars Hamdi from visiting certain countries and to inform Saudi officials if he plans to leave the kingdom. He was a party to a Supreme Court decision Hamdi v. Rumsfeld which issued a decision on June 28, 2004, repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge. Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.
On May 8, 2002, José Padilla, also known as Abdullah al-Muhajir, was arrested by FBI agents at Chicago's O'Hare International Airport and held as material witness on the warrant issued in New York State about the 2001 9/11 attacks. On June 9 2002 President Bush issued an order to Secretary Rumsfeld to detain Padilla as an "enemy combatant". The order legally justified the detention by leaning on the AUMF which authorized the President to "..use all necessary force against those nations, organizations, or persons..." and in the opinion of the administration a U.S. citizen can be an enemy combatant (This was decided by the United States Supreme Court in the case of Ex Parte Quirin). Padilla is currently being detained in Miami and is accused of providing material support for terrorism.
Following the Hamdi v. Rumsfeld-ruling (November 2004) the Bush administration has begun using Combatant Status Review Tribunals to determine the status of detainees. By doing so the obligation under Third Geneva Convention#Article 5 was to be addressed.
However, critics maintain these CSRTs are inadequate to warrant acceptance as "competent tribunal." Their principal arguments are:
Notable cases pointed to by critics as demonstrating the flawed nature of the procedure include: Mustafa Ait Idir, Moazzam Begg, Murat Kurnaz, Feroz Abbasi, and Martin Mubanga. A comment by legal experts states:
James Crisfield, the legal advisor to the Tribunals, offered his legal opinion, that CSRT "do not have the discretion to determine that a detainee should be classified as a prisoner of war — only whether the detainee satisfies the definition of "enemy combatant"" Determining whether a captive should be classified as a prisoner of war is the sole purpose of a competent tribunal.
Analysis of these Tribunals by two lawyers for Guananamo detainees, Professor Mark P. Denbeaux of the Seton Hall University School of Law, his son Joshua Denbeaux, and some of his law students resulted in a report called No-hearing hearings. In essence it supports the criticism voiced above.
As of October 17, 2006, When President Bush signed the Military Commissions Act of 2006 into law, Title 10 of the United States Code was amended to include a definition of an "unlawful enemy combatant" as
The definition of a lawful enemy combatant is also given, and much of the rest of the law sets out the specific procedures for determining whether a given detainee of the U.S. armed forces is an unlawful enemy combatant and how such combatants may or may not be treated in general and tried for their crimes in particular. Among its more controversial provisions, the law stipulates that a non United States citizen held as an enemy combatant or is awaiting such determination may not seek habeas corpus relief. Such detainees must simply wait until the military convene a detainee status review tribunal (under the procedures described in the Detainee Treatment Act of 2005).
Immediately after Bush signed the Act into law, the U.S. Justice Department notified the U.S. Court of Appeals for the District of Columbia that the Court no longer had jurisdiction over a combined habeas case that it had been considering since 2004. A notice dated the following day listed 196 other pending habeas cases for which it made the same claim.
Of the first three war crimes cases brought against Guantanamo Bay detainees under the Military Commissions Act, one resulted in a plea bargain and the two others were dismissed on jurisdictional grounds.
On June 4, 2007, in two separate cases, military tribunals dismissed charges against detainees who had been designated as "enemy combatants" but not as "unlawful enemy combatants". The first case was that of Omar Khadr, a Canadian who had been designated as an "enemy combatant" in 2004. Khadr was accused of throwing a grenade during a firefight in Afghanistan in 2002. Colonel Peter Brownback ruled that the military tribunals, created to deal with "unlawful enemy combatants", had no jurisdiction over detainees who had been designated only as "enemy combatants". He dismissed without prejudice all charges against Khadr. Also on June 4, Captain Keith J. Allred reached the same conclusion in the case of Salim Ahmed Hamdan.
The United States Department of Defense responded by stating: "We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures." That position was called "dead wrong" by Specter.
Chief Justice John Roberts, in the minority opinion, called the CSR Tribunals:
The term Illegal enemy combatants, critics maintain, has mainly been used to deny detainees basic civil rights, such as the right to a counsellor, a speedy trial and right of appeal. It has been argued that this gives governments a right to arbitrarily suspend the rule of law in a way that should not be accepted. Philosophers such as Giorgio Agamben have underlined the proximity of "unlawful combatant" status with the ancient Homo sacer juridical status, which excepted an individual from the sphere of right, depriving him of any rights specific to citizenship: therefore, as in the tumultus state (akin to the modern state of emergency), Homo sacer wasn't protected by state laws and could be exposed to any type of violence.
Criticsof the US administration's position, note that Gonzales in his advice to President Bush also points to a little known law passed by Congress, known as the War Crimes Act. By declaring Taliban and Al Qaeda fighters did not have Geneva Convention protection it "substantially reduces the threat of criminal prosecution under the War Crimes Act," Gonzales wrote. Another memo, written by United States Attorney General John Ashcroft, again summarizes the position of the Justice Department on why the Geneva Convention does not apply to al Qaeda or Taliban prisoners. Both memos warn against the possibility of U.S. officials being subject to prosecution for violating U.S. and international laws if the Geneva Conventions are applied. With several alleged torture incidents in mind, sceptics think that these legal considerations could be a key argument for refuting the Geneva Convention. In addition, by explicitly addressing the War Crimes Act the memos acknowledge U.S. officials are involved in acts that could be seen to be war crimes. All senior officials in the Bush administration are subject to legal responsibility for crimes against humanity and crimes of war, as has been determined by the Yamashita standard.
For his part in laying the legal groundwork for prisoners to be detained without due legal process and allowing torture, Marjorie Cohn, professor at Thomas Jefferson School of Law and president of the National Lawyers Guild, has suggested an indictment of Alberto Gonzales for war crimes under Title 18 U.S.C. section 2441, the War Crimes Act.
Some governments whose nationals have been detained with this status by the United States, notably Canada, the UK, and Sweden, have intervened to limit the degree to which the rights of their nationals have been suspended. In general this has been handled on a case-by-case basis as numbers are few.
Furthermore, the difference of opinion around the globe as to the status of these prisoners would suggest Third Geneva Convention#Article 5 applies. It is very explicit: Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. Because of this, legal experts disagree with the U.S. administration's claim they can deny an individual prisoner of war status and detain suspects as "unlawful combatant.
Nathaniel Berman in the Columbia Journal of Transnational Law suggests that by declaring that some detainees do not merit the protections of criminal law, because of their combatant activities, and that they do not merit the protections of jus in bello due to the allegedly unlawful nature of their combat, the use of the term in current legal discourse seems "designed to put detainees beyond the reach of any law. Critics among some human rights groups have challenged the treatment of unlawful combatants by the United States as having fallen short of the standards required under international humanitarian law. There are allegations that the Bush Administration’s policy of classification and detention of persons designated as "unlawful enemy combatants" is based on a presumption that the Geneva Conventions and Constitutional safeguards are an obstacle in the pursuit of the War on Terrorism according to Terry Gill and Elies van Sliedregt in the Utrecht Law Review
In response to the US-led military campaign in Afghanistan, a legal advisor at the Legal Division of the ICRC, published a paper on the subject (which reflects the views of the author alone and not necessarily those of the ICRC), in which it states:
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:
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".
Many governments and human rights organizations 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.