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The Practical Guide To Humanitarian Law: Calling Things by The Wrong Name Adds To The A Iction
The Practical Guide To Humanitarian Law: Calling Things by The Wrong Name Adds To The A Iction
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Index
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Authors and participants (/content/page/Auteurs_et_intervenants)
Combatants
Combatants are persons who are authorized to use force in
situations of armed conflict by international humanitarian law.
Conversely, they constitute legitimate military targets in times
of armed conflict. But, contrary to civilians, they may not be
subject to criminal prosecutions for their participation in
hostilities as long as their use of force is in conformity with the
provisions of the law of armed conflict, also named
humanitarian law.
▸ Children (/content/article/3/children)
Status of Combatants in
International Armed Conflicts
The study on the rules of customary international humanitarian
law published by the ICRC in 2005 (customary IHL study) has
summarized the consensus on the definition of combatants.
Rules 3 and 4 concerning the definition of combatants only
apply in international armed conflicts. Rule 3 provides that “all
members of the armed forces of a party to the conflict are
combatants, except medical and religious personnel,” while
Rule 4 affirms that “the armed forces of a party to the conflict
consist of all organized armed forces, groups and units which
are under a command responsible to that party for the conduct
of its subordinates.”
Armed Forces
As defined by the Third Geneva Convention and Additional
Protocol I, the armed forces of a party to a conflict consist of all
the organized armed forces, groups, and units placed under a
command that is responsible for the conduct of its
subordinates. These forces, groups, and units make up the
armed forces of a party even if that party is represented by a
government or an authority that is not recognized by the
adverse party. Armed forces must be subject to an internal
disciplinary system that, among other obligations, enforces
compliance with the law of armed conflict. The concept of
armed forces is defined by the Third Geneva Convention and
Protocol Additional I (API Arts. 43, 50; GCIII Art. 4.a, paras. 1,
2, 3, and 6).
The fact that one party to a conflict may not recognize the
legitimacy of the adverse party shall not deprive combatants of
this party of the status of prisoner of war (GCIII Art. 4.a.1, API
Art. 43.1). Additional Protocol I does not set up any condition
based on the nationality of combatants; therefore, it is not
possible to exclude from the category of combatants those non-
nationals who have volunteered and joined the armed forces of
a party to a conflict. The conflict may qualify as international
where these foreign volunteers act, de facto, under the authority
of their State of origin.
However, this must obey special procedures and open the right
to other fundamental guarantees of treatment.
Spies do not have the right to the status of prisoner of war (API
Art. 46), but they cannot be condemned without judgment
(Rule 107 of the customary IHL study) and benefit from other
fundamental guarantees.
Obligations of Combatants
Combatants are under the obligation to comply with the rules of
humanitarian law (API Arts. 43.1, 44.1).
Status of Combatants in
Internal Armed Conflicts
International humanitarian law does not recognize combatant
status for members of non-state armed groups involved in non-
international armed conflicts, but it can be applied by way of
special agreement by parties to the conflict, as encouraged by
Common Article 3.
Unlawful Combatants
The U.S. Supreme Court also pointed out that the categories of
international and non-international armed conflict were
mutually exclusive and that therefore there was no other
category for which no humanitarian law would apply. It
concluded that, at a minimum, Common Article 3 to the four
Geneva Conventions was still applicable in these situations. ▸
Non-international armed conflict (/content/article/3/non-
international-armed-conflict) ▸ Terrorism (/content/article
/3/terrorism)
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