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an armed conflict, only “combatants” are permitted to
“take a direct part in hostilities.” Noncombatants who
do so lose any protected status that they might have. That is likely
to mean that they lose their protection from attack; they are not
entitled to be treated as prisoners of war; and they are liable
to be prosecuted either as war criminals or, where domestic law
applies, as common criminals in respect of any attacks on people
or property they have carried out. Some, but not all, authorities
consider that unprivileged belligerency or unauthorised combatancy
is a war crime in itself.
Combatants are all members of the armed forces of a party to the
conflict except medical and religious personnel. Members of a levée
en masse are also regarded as combatants. Combatants cannot be punished
for their hostile acts and if captured can only be held as POWs
until the end of hostilities.
The term “taking a direct part in hostilities” certainly
includes attacking enemy combatants or military objectives and it
may extend to some support activities but the precise meaning of
the term remains
controversial.
The armed forces consist of all organized armed forces, groups and
units which: a. are under a command responsible for the conduct
of its subordinates to a party to the conflict; b. are subject to
an internal
disciplinary system which enforces compliance with the law of armed
conflict; and c. whose members, at least when deployed on military
operations, wear uniform or combat gear that distinguishes them
from
the civilian population.
Medical and religious personnel, like civilians, are noncombatants.
They may not take a direct part in hostilities and so long as they
do not do so are legally protected from attack. Medical personnel
may, however, use small arms in self-defence if unlawfully attacked.
Religious personnel are not armed.
The composition of the armed forces is a matter for the State or
faction concerned. Its components may be regular units, reservists,
territorial defence units, citizens called up for part-time service
or full-time soldiers as long as the conditions set out above are
fulfilled. It is normal for members of the armed forces to have
ranks, the more senior ranks having power to give orders to, and
exercise discipline over, their subordinates.
Violation of the law of armed conflict does not mean loss of combatant
status so long as those responsible are tried and punished. If members
of an armed group consistently violate the law of armed conflict
and are not punished, that is strong evidence that the group does
not qualify as “armed forces”, since it fails to meet
the criterion of an internal disciplinary system, and that its members
do not have combatant status.
In unusual circumstances where it is impossible to wear uniform
or combat gear all the time, such as when operating in areas under
adverse occupation, behind enemy lines or, in liberation conflicts,
in areas controlled by government forces, combatants must, at the
very least, carry their arms openly during military engagements
or when visible to the enemy in military deployments preceding the
launch of any attack.
When they surrender or are captured, combatants are entitled to
be treated as prisoners of war, though this can mean their internment
until the close of active hostilities. If there is any doubt about
their status, this must be resolved by a properly constituted tribunal.
Unauthorised combatants, or unprivileged belligerents, who surrender
or are captured may also be interned if the security of the detaining
State makes it absolutely necessary. Those of them who qualify as
“protected persons” under the Geneva Civilian Convention
are entitled to the protection of that convention. Others are entitled
at the very least to the rights of humane treatment and of fair
trial.
(See Guantanamo; guerrillas;
irregulars; mercenaries;
prisoners of war; protected
persons; soldiers, rights
of.)
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