Illegal combatant

Illegal combatant (also unlawful combatant) is a term that has been introduced in some countries to refer to a person who carries arms or engages in warlike acts (known as a Enemy combatant) in alleged violation of the laws of war. Such a person is not necessarily considered a lawful combatant and therefore is not necessarily accorded the rights of a prisoner of war (POW).

The term was first introduced in 1942 by a United States Supreme Court decision in the case ex parte Quirin. In this case, the Supreme Court upheld the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs in the US. This decision states (emphasis added and footnotes removed):

"...the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

Other countries, including the United Kingdom, Israel, Australia, Canada, and New Zealand make theoretical distinctions between lawful and unlawful combatants and the legal status thereof.

Table of contents

1 Criticism
2 Protest
3 References

Criticism

The legal status of unlawful combatants in these nations has been the subject of criticism by many other Geneva Convention signatories and international human rights institutions (including the ICRC and Human Rights Watch).

Under this Convention and other treaties, the established approach is that a person is either a civilian tried under civilian law or a combatant treated as a prisoner of war. Furthermore, it is generally accepted among some of these signatories and institutions that the detaining power does not have final authority over the PoW designation of detainees.

The term illegal combatant, critics maintain, has mainly been used to deny detainees basic civil rights, such as the right to a counsellor, a speedy trial and right of appeal. It has been argued that this gives governments a right to arbitrarily suspend the rule of law in a way that should not be accepted.

Some governments whose nationals have been detained with this status, notably Canada, the UK, and Sweden, have intervened to limit the degree to which the rights of their nationals have been suspended. In general this has been handled on a case-by-case basis as numbers are few.

Many governments and human rights organizations worry that the introduction of the illegal combatant status sets a dangerous precedent for other regimes to follow. Ironically, when the government of Liberia detained American activist Hassan Bility in 2002, Liberian authorities dismissed the complaints of the United States, responding that he had been detained as an illegal combatant.

Protest

Some citizens have declared solidarity with prisoners accorded this status, especially by declaring their profession to be 'illegal combatant' on official forms, especially if arrested during anti-war protest or anti-globalization movement activities. This practice is most common among anarchists, situationists, and Marxists.