is someone who takes a direct part in the hostilities of an armed conflict. If a combatant follows the law of war, then they are considered a privileged combatant, and upon capture they qualify as a prisoner of war
A prisoner of war or enemy prisoner of war is a person, whether civilian or combatant, who is held in custody by an enemy power during or immediately after an armed conflict...
under the Third Geneva Convention
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in 1949...
(GCIII). An unprivileged combatant is someone, such as a mercenary
A mercenary, is a person who takes part in an armed conflict based on the promise of material compensation rather than having a direct interest in, or a legal obligation to, the conflict itself. A non-conscript professional member of a regular army is not considered to be a mercenary although he...
, who takes a direct part in the hostilities but who upon capture does not qualify for prisoner of war status.
The following categories of combatants qualify for prisoner-of-war status on capture:
- Members of the armed forces of a Party to the conflict
- Members of militias not under the command of the armed forces, with the following traits:
- 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.
- Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
- 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.
For 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
Protocol I is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of international armed conflicts. It reaffirms the international laws of the original Geneva Conventions of 1949, but adds clarifications and new provisions to accommodate developments in modern...
), combatants who do not wear a distinguishing mark still qualify as prisoners of war if they carry arms openly during military engagements, and while visible to the enemy when they are deploying to conduct an attack against them.
There several types of combatants who do not qualify as privileged combatants:
- Combatant who would otherwise be privileged, but have breached other laws or customs of war (for example by fighting under a white flag
White flags have had different meanings throughout history and depending on the locale.-Flag of temporary truce in order to parley :...
Espionage or spying involves an individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Espionage is inherently clandestine, lest the legitimate holder of the information change plans or take other countermeasures once it...
, mercenaries, child soldiers, and civilians who take a direct part in combat and do not fall into one of the categories listed in the previous section, (for example "inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces" would qualify as privileged combatants).
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" (GCIII Art 5) to decide the issue.
Most unprivileged combatants who do not qualify for protection under the Third Geneva Convention do so under the Fourth Geneva Convention
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians...
(GCIV), which concerns civilian
A civilian under international humanitarian law is a person who is not a member of his or her country's armed forces or other militia. Civilians are distinct from combatants. They are afforded a degree of legal protection from the effects of war and military occupation...
s, 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
The Luanda Trial was a trial held in Luanda, Angola in June and July 1976 by the Popular Movement for the Liberation of Angola , recently victorious in the Angolan War of Independence, to prosecute thirteen foreign mercenaries who had served its defeated rival, the National Liberation Front of...
Angola, officially the Republic of Angola , is a country in south-central Africa bordered by Namibia on the south, the Democratic Republic of the Congo on the north, and Zambia on the east; its west coast is on the Atlantic Ocean with Luanda as its capital city...
in June 1976.