The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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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.

The use of force may not occur as a result of individual initiative but must take place under a clear chain of responsible command, within the framework of respect for the rules of the law of armed conflict. According to the definitions provided by the Geneva Conventions and their first 1977 Additional Protocols, combatants are members of national armed forces or organized groups placed under the effective control of those forces. It is this authorization to use force that distinguishes combatants from civilians.

Combatants can be prosecuted under national or international criminal law if they commit war crimes, crimes against humanity, or acts of genocide, even if they act under the orders of their superiors but not for their plain participation in the hostilities.

The status of combatant gives rise to a special regime of protection, established by the Third Geneva Convention, which regulates the treatment of prisoners of war. The definition of a combatant is closely linked to the notion of a prisoner of war.

Additional Protocol I extended the notions of “combatants” and “members of armed forces” defined by the Third Geneva Convention to take into account the evolution of armed conflicts and the diversification of methods of warfare. This definition standardizes the regime of protection and imposes equal responsibilities on all those who take up arms. The combatant under the definition of the Third Geneva Convention is entitled to prisoner-of-war status and cannot be prosecuted for participation in hostilities. Nevertheless, this status corresponds to privileges granted by States to their national armies. This status has not been implemented in non-international armed conflicts, where, by definition, governmental armed forces fight non-state armed groups, rebels, or dissidents. These non-state armed groups have the status of a party to the conflict, which compels them to comply with the provisions of international humanitarian law applicable to non-international armed conflicts, but they are not entitled to combatant status.

Regarding international armed conflicts, Additional Protocol II provides special safeguards for civilians who take part in hostilities, but they do not correspond to the reality and activities of non-state armed groups, who are also present in international armed conflicts.

CiviliansInternational armed conflictNon-international armed conflictNon-state armed groupsParties to the conflict

Demonizing and discrediting the enemy is common practice in conflict situations. The enemy is often described as a bandit, criminal, hooligan, or terrorist. Avoiding the use of the term combatant prevents those who fall into the hands of the enemy from enjoying the safeguards granted to prisoners of war and increases their risk of being ill treated. Questioning the status of combatants or of those who participate in hostilities weakens the status of civilians.

By taking into account the developments in types of conflict, the two 1977 Additional Protocols have tried to extend the status of combatant in international armed conflicts and to create regimes of protection for civilians who directly participate in hostilities in the two types of conflict (infra).

Whatever is the nature of the armed conflict, it is prohibited to enlist children under fifteen in the armed forces. This prohibition, initially provided for international armed conflicts (API Art. 77), was extended to non-international armed conflicts through international criminal law, which made it a war crime (Arts. 8.2.b.xxvi, 8.2.e.vii of the Rome Statute). The international Convention on the Rights of the Child (CRC), as well as many other conventions, has restated this prohibition. Child soldiers remain protected by specific rights provided by humanitarian law, whether they are prisoners of war or not. Individuals who forcibly enlist children under fifteen in armed forces are guilty of war crimes and can be prosecuted before the International Criminal Court and national tribunals.

Children

The definition of a combatant is crucial because the implementation of humanitarian law rests on the distinction between civilians and combatants. The latter are bound by the law of armed conflict to respect specific obligations. This law was also written to protect them if, for instance, they are prisoners of war. Questioning the status of a combatant automatically alters the definition and subsequent protection of civilians.

In the context of internal armed conflicts, humanitarian law does not use the term combatant because it is difficult to determine clearly who is a member of the national armed forces and who is a member of an organized opposition group. As a consequence, it would be difficult to define who is legitimate in the use of force. In those situations, humanitarian law establishes a plain distinction between the persons taking part in hostilities and those who are not (or no longer). These two categories of people are granted—under the appropriate circumstances—the protection to which they are entitled as either combatant, prisoners of war, person detained in relation with the conflict, wounded and sick, or civilian.

Even if non-state armed groups do not have combatant status, they are parties to the conflict, and as such, they are compelled to respect the provisions of humanitarian law applicable to non-international armed conflicts.

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).

Combatants and Prisoners of War

-According to the Third Geneva Convention, combatants are:

  • members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces (GCIII Art. 4.a.1); or

  • members of regular armed forces, even those that profess allegiance to a government or authority not recognized by the adverse power (GCIII Art. 4.a.3); or

  • members of other militias and members of volunteer corps, including those of organized resistance movements belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

    1. that of being commanded by a person responsible for his subordinates;
    2. that of having a fixed distinctive sign recognizable at a distance;
    3. that of carrying arms openly;
    4. that of conducting their operations in accordance with the laws and customs of war (GCIII Art. 4.a.2);
  • 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 (GCIII Art. 4.a.6).

This definition is problematic because it creates specific conditions that only some categories of combatants will have to fulfill. According to other articles of the Third Geneva Convention, the non-respect of such or such condition by a person does not ipso facto exclude this person from enjoying the status of combatant or prisoner of war. While the conditions listed appear to be clear at first, different categories of combatants have been discriminated against; there have even been unjustified refusals to afford the status of combatant and prisoner of war. Such risk is illustrated by the reference made by the American administration to the notion of “unlawful combatant” in order to avoid applying the status of prisoner of war to some combatants on the basis of nationality, lack of distinct badge, or non-respect of humanitarian law. Because of these risks, Additional Protocol I of 1977 clarified and simplified the definition of combatant, including in this concept all persons who participate in hostilities. It also specified and limited the basis for exclusion from the status of combatant and prisoner of war.

-According to Additional Protocol I to the Geneva Conventions, combatants are:

  • the armed forces of a party to a conflict, and also
  • groups and units that are under a command responsible to that party for the conduct of its subordinates, even if that party is answerable to a government or an authority not recognized by an adverse party. Such armed forces shall be subject to an internal disciplinary system, which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict (API Arts. 43, 50).

InsurgentsResistance movementsTerrorism

According to these clauses, resistance fighters, insurgents, rebels, and persons who are members of “guerrilla” forces or armed groups placed under the effective control of a party to the conflict may have the status of combatants or of members of armed forces as long as they follow certain conditions. These include carrying arms openly during confrontations, being commanded by a person responsible for his or her subordinates, and following an internal disciplinary system that—among other obligations—is able to impose compliance with the rules of international law applicable in armed conflict. Additional Protocol I restricts the scope of the clauses allowing these people to be excluded from having the combatant status.

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.

During an armed conflict, “terrorists” do not form a specific group legally identified by humanitarian law. The Geneva Conventions and Additional Protocols allow for only one kind of distinction: between civilians and combatants or between those who are taking part in hostilities and those who are not (or are no longer involved). Humanitarian law prohibits as war crimes acts aimed at spreading terror among the civilian population. Thus, those who use methods of terror are committing a crime. Authorities who have control over such people must prosecute them according to the rule of law. Where these people act in agreement with, or on behalf of, an authority involved in the conflict, they then qualify as combatants taking part in it. A combatant who uses such methods can be arrested, detained, and prosecuted for the crime committed, but does not lose combatant status.

Death penaltyDetentionIll-treatmentJudicial guaranteesPrisoners of warSanctionsTerrorTerrorismTorture

At times, civilians may take part in hostilities without formally belonging to any regular armed force. This may happen, most notably, in the context of spontaneous uprisings in occupied territories. It may also occur in other armed conflicts where the distinction between civilians and combatants becomes more difficult. In such cases, civilians who directly take part in hostilities temporarily lose the protection provided for civilians, but only for the duration of their participation in the hostilities (API Art. 51.3, APII Art. 13.3). In such cases, if captured, they may benefit from the status of prisoner of war (API Art. 45).

In case of doubt concerning the status of an individual who does not fall into one of the categories of combatants as defined by the Geneva Conventions and their Additional Protocols, he or she must be considered a civilian (API Art. 50).

The application of the provisions concerning the direct participation of civilians in hostilities could be extended by analogy to situations of non-international armed conflicts.

Clauses of Exclusion from the Status of Combatant

Additional Protocol I takes up, clarifies, and simplifies the criteria set out in the definitions of the various categories of combatants. Where these criteria or conditions are not fulfilled, the person concerned does not automatically lose his or her combatant or prisoner of war status or their right to be treated according to it. Additional Protocol I clarifies these criteria and their consequences.

  • The existence of a command that is responsible for the conduct of its subordinates is an important criterion when distinguishing acts of violence that are the result of an isolated initiative of those who are involved in the armed conflict. The existence of a hierarchical link impacts on the criminal responsibility framework.

The command must refrain from giving unlawful orders and must impose an internal disciplinary system that provides for sanctions for individual criminal behavior. The concept of responsible command does not require the command to be legitimate. Suffice it to say that they have means to control their force and have an internal disciplinary system that applies to combatants.

  • The obligation to respect humanitarian law lies with combatants and armed forces. Awareness of this obligation is therefore inherent to the concept of combatant. Violations of humanitarian law by a combatant do not deny them combatant or prisoner of war status. A party to a conflict may not justify its own violations of humanitarian law by stating that its enemy violated humanitarian law initially. R▸ espect for international humanitarian law

Additional Protocol I stipulates that although all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse party, of his right to be a prisoner of war (API Art. 44.2). Additional Protocol I particularly insists on the duty of combatants to distinguish themselves from the civilian population, yet does not make it an absolute obligation. A combatant who commits a war crime continues to enjoy the status of combatant or prisoner of war; however, he can be prosecuted for the crimes committed, according to the rule of law. ▸ Judicial guaranteesPrisoners of warResponsibility

  • The duty to carry a distinct insignia, to carry arms openly, and to distinguish themselves from the civilian population. Additional Protocol I brings some flexibility and clarity to the obligation to openly carry a distinct insignia, to carry arms openly, and to distinguish themselves from the civilian population, as defined in the Third Geneva Convention. Combatants remain obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack (API Art. 44.3). However, Additional Protocol I recognizes that there are situations of armed conflict where, due to the nature of the hostilities, an armed combatant cannot distinguish himself from the civilian population. These clauses are particularly relevant in situations of guerrilla warfare, insurrection, fighting against occupying forces, and non-international armed conflict. In such cases, Additional Protocol I stipulates that if 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:

    1. during each military engagement, and
    2. 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.

As long as the combatant respects these two conditions, his acts shall not be considered as perfidious (API Art. 44.3) ( ▸ Perfidy ). Additional Protocol I stipulates that whoever does not respect these two obligations will forfeit his right to be a prisoner of war, but will, nevertheless, be given protections equivalent in all respects to those accorded to prisoners (API Art. 44.4). Additional Protocol I further provides some flexibility to the notion of distinctive insignia in order to take specific circumstances into account. The insignia does not necessarily have to be the same on every occasion; it must, however, be distinctive. On the issue of guarantees when defining and awarding the status of prisoner of war, see the entry on ▸ Prisoners of war .

Rule 106 of the ICRC customary IHL study provides that in international armed conflicts, “combatants must distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. If they fail to do so, they do not have the right to prisoner-of-war status.”

However, this must obey special procedures and open the right to other fundamental guarantees of treatment.

Fundamental Guarantees of Treatment of Combatants

The Third Geneva Convention establishes a detailed (and therefore strict) definition of who may be considered a prisoner of war and benefit from that status. This definition is broader than that of combatants in the strict sense of the term (GCIII Arts. 4.1, 4.5).

Additional Protocol I, on the other hand, establishes that “any combatant who falls into the power of an adverse party shall have the status of prisoner of war” (API Art. 44.1).

The clauses of exclusion from the prisoner-of-war status are completed by guarantees of procedure and treatment for combatants. Additional Protocol I specifies that “a person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third [Geneva] Convention” (API Art. 45.1). Only a competent tribunal may decide on an individual’s status; administrative or military authorities do not have jurisdiction on this issue.

Additional Protocol I also provides that “any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favorable treatment in accordance with the Fourth Convention, shall have the right at all times to the protection of Article 75 of this Protocol” (API Art. 45.3).

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.

Mercenaries do not have the right to the status of combatant or of prisoner of war (API Art. 47), but they cannot be condemned without judgment (Rule 108 of the customary IHL study) and are entitled to the fundamental guarantees.

EspionageFundamental guaranteesMercenariesPrisoners of war

Obligations of Combatants

Combatants are under the obligation to comply with the rules of humanitarian law (API Arts. 43.1, 44.1).

The Geneva Conventions define which acts are considered war crimes. Combatants who commit such crimes are individually responsible, even if they acted under the orders of a superior. The military commander or other hierarchical superior will also be held criminally responsible for the acts of their subordinates, whom they are under the obligation to stop or prevent.

Nevertheless, the fact that a combatant may have violated humanitarian law shall not deprive him or her of the right to the status of combatant nor of prisoner of war should he or she fall into the power of an adverse party (API Art. 44.2). A prisoner of war who has committed crimes and serious breaches of humanitarian law may always be prosecuted, as long as the rule of law that applies under humanitarian law is respected. However, an individual may not be prosecuted for merely belonging to an armed group or for merely taking part in the hostilities.

Duty of commandersJudicial guaranteesMethods (and means) of warfarePrisoners of warResponsibilityWarWar crimes/Crimes against humanity

In order to make the protection of civilians possible, combatants are under the obligation to distinguish themselves from the civilian population. This is of particular importance while the combatants are engaged in an attack or a military operation in preparation for an attack.

However, the Geneva Conventions recognize that there are situations in armed conflicts in which, owing to the nature of the hostilities, armed combatants cannot distinguish themselves in such a manner. In such cases, they will retain their status as combatants as long as they carry their weapons openly during each military engagement (API Arts. 44.3, 48).

AttacksCiviliansPrisoners of war

Civilians Taking Part in Hostilities

Without specifying conditions or circumstances, Additional Protocol I provides for the protection of those who take part in hostilities. It stipulates that those people involved in the conflict who have fallen into the enemy hands shall be presumed to be prisoners of war, and therefore will be protected by the Third Convention (API Art. 45.1). This clause prevents individuals from being denied both civilian and combatant status and therefore from being excluded from all protective measures afforded by humanitarian law. Article 45.1 is complementary to the rights afforded to inhabitants of a non-occupied territory who spontaneously take up arms on the approach of the enemy to resist the invading forces. In such situations these inhabitants are afforded prisoner-of-war status if they are captured (GCIII Art. 4.A.6).

The link between civilian and combatant status is defined by Additional Protocol I, according to which civilians enjoy the protection afforded by humanitarian law, unless and for such time as they take a direct part in hostilities (API Art. 51.3). Therefore, the loss of civilian status is strictly limited to the period of time during which the person in question in involved in the hostilities. Consequently, when civilians fall into the hands of the enemy while directly taking part in the hostilities, they lose their protection as civilians and may then claim prisoner-of-war status due to their participation in the fighting (API Art. 45.1). If, however, these people fall into the hands of the adverse party without directly taking part in hostilities, they should still enjoy protection as civilians (API Arts. 50, 51.3).

In case of doubt on the status of combatants, an individual who takes part in hostilities and falls into the hands of an adverse party is presumed to be a prisoner of war. In case of doubt, decisions about the individual’s status are not left to the administrative or military authorities but must be made by a competent judicial authority (API Art. 45).

In light of the evolution of armed conflicts and the growing difficulty of distinguishing between civilians and combatants in contemporary non-international armed conflicts, the ICRC published in 2010 Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL .

CiviliansSituations and persons not expressly coveredby humanitarian law

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.

If such a status is not applied, they are considered as civilians taking part in the hostilities (APII Art. 13.3). However, they must at a minimum benefit from the fundamental guarantees established for persons who no longer participate in the hostilities (GCI-IV Art. 3; APII Arts. 4, 5).

Additional Protocol II also provides specific provisions to fill the vacuum created by the absence of prisoner-of-war status. Article 5 regulates the treatment of persons deprived of their liberty for reasons related to the armed conflict, while Article 6 spells out guarantees concerning the prosecution and punishment of criminal offences related to the armed conflict. Those judicial guarantees are very important because in non-international armed conflicts, the sole fact of taking up arms against national authorities is considered a crime under domestic law. The guarantees contained in these articles are minimum guarantees, which can be completed by more favorable provisions provided by the rest of humanitarian law with the agreement of the parties to the conflict.

CiviliansFundamental GuaranteesJudicial guaranteesNon-state armed groups

Unlawful Combatants

The term unlawful combatant has been used in the context of legal proceedings related to the war against terrorism. Combatant status and rights attached thereto was denied to such people by some States because they do not meet the conventional criteria relating to the status of combatant and prisoner-of-war status. Civilian status and the rights attached thereto were also refused because of their participation in actions of combat.

These debates were finally settled by several judicial decisions, including those of the U.S. Supreme Court and the Israel Supreme Court (U.S. Supreme Court, Hamdan v. Rumsfeld , 548 U.S. [2006] and Supreme Court of Israel sitting as high court of justice, Public Committee against Torture in Israel v. the Government of Israel et al. , HCJ 769/02, Judgment, 11 December 2005).

These judgments recalled legal evidence: humanitarian law cannot be invoked to deny fundamental rights to actors in conflicts or to create categories of conflicts that would escape any law. Indeed, the interpretation of international conventions must remain faithful to the spirit of these texts and cannot lead to absurd or unreasonable situations.

Hence, on unlawful combatants, the Israel Supreme Court held that the categories of combatant and civilian were mutually exclusive and that a third category, which would concern unlawful combatants, did not exist. The Court deduced that terrorists belonged to the category of civilians taking part in hostilities. ▸ CiviliansTerrorism

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 conflictTerrorism

AttacksChildrenCiviliansDetentionDuty of commandersEspionageFundamental guaranteesIll-treatmentInsurgentsMercenariesMethods (and means) of warfareNon-combatantsPrisoners of warResistance movementResponsibilitySituations and people not expressly covered by humanitarian lawSpecial agreementTerrorismWarWar crimes/Crimes against humanity

For Additional Information: Callen, Jason. “Unlawful Combatants and the Geneva Conventions.” Virginia Journal of International Law (2004): 1025–72.

Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict . Cambridge: Cambridge University Press, 2004, esp. chaps. 2 and 5.

Dormann, Knut. “The Legal Situation of ‘Unlawful/Unprivileged Combatants.’” International Review of the Red Cross 849 (March 2003): 45–85.

Hoffman, Michael H. “Terrorists Are Unlawful Belligerents, not Unlawful Combatants: A Distinction with Implications for the Future of International Humanitarian Law.” Case Western Journal of International Law 34, no. 2 (2002): 227–30.

Ipsen, Kurt. “Combatants and Non-combatants.” In The Handbook of Humanitarian Law in Armed Conflicts , edited by Dieter Fleck, 65–80. Oxford: Oxford University Press, 1995.

Meron, Theodor, and Allan Rosas. “Current Development: A Declaration of Minimum Humanitarian Standards.” American Journal of International Law 85 (April 1991): 375–81.

Sassoli, Marco, and Laura M. Olson. “The Relationship between International Humanitarian Law and Human Rights Law Where It Matters: Admissible Killings of Fighters and Internment in Non-international Armed Conflicts.” International Review of the Red Cross 871 (September 2008): 599–627.

Sjoberg, Laura. “Women Fighters and the ‘Beautiful Soul’ Narrative.” International Review of the Red Cross 877 (March 2010): 53–68.

Watkin, Kenneth. “Warriors without Rights? Combatants, Unprivileged Belligerents, and Struggle over Legitimacy.” Harvard Program on Humanitarian Policy and Conflict Research, Occasional Paper Series 2, 2005.

Zachary, Shlomy. “Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?” Israel Law Review 38 (2005): 378–417.

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