Combatant
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A combatant (also referred to as an enemy combatant) is a soldier or guerrilla member who is waging war. Under the Third Geneva Convention (GCIII), persons waging war must have the following characteristics to be protected by the laws of war:
- Members of the armed forces of a Party to the conflict
- or members of militias not under the command of the armed forces
- 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.
- or are members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
- or 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.
A combatant who has surrendered or been captured becomes a prisoner of war (POW).
If there is any doubt as to whether the person is a lawful combatant they must be held as a POW until they have faced a "competent tribunal" (GCIII Art 5) to decide the issue. Combatants who may be deemed to be unlawful combatants include, spies, mercenaries, members of militias not under the command of the armed forces who do not fit into the categories specified above, and those who have breached other laws or customs of war (for example by fighting under a white flag).
Most unlawful combatants qualify for protection under the Fourth Geneva Convention (GCIV) until they have had a "fair and regular trial". Once 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 the Mercenary trial in Angola in June, 1976.
For those 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) the definition of lawful combatant is altered by
- Article 44 .3
- ...Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities 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::
- ( a ) During each military engagement, and
- ( b ) 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.