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Dictionary of Gross Human Rights Violations


Lawful Combatant

 

 

By - Kjell Follingstad Anderson

International law defines who is a “lawful combatant” as a part of the distinction between combatants and non-combatants (civilians). In order to be considered lawful combatants soldiers must carry their arms openly, wear identifiable markings or insignia (often a shoulder patch), operate within a chain of command, and comply with the laws of war. Soldiers who are lawful combatants are afforded the full protection of the laws of war and, in particular, if captured they will be treated as prisoners of war. Only lawful combatants are permitted to take direct part in hostilities. All members of the armed forces are lawful combatants except for religious and medical personnel. Generally mercenaries are not considered lawful combatants (with prisoner of war status if captured).[1]
 
The rules separating lawful from unlawful combatants are in place to ensure that the lines between soldiers and civilians are not blurred and therefore that civilians are insulated somewhat from the violence of war. This principal dates back to the Hague Regulations but it was elaborated in the Third Geneva Convention and Additional Protocol I. 
 
The United States opposed the broadening of the definition of lawful combatant in Additional Protocol I to include irregular forces. AP I states in Article 44 that irregular soldiers who “owing to the nature of the hostilities” they cannot distinguish themselves may still be considered a lawful combatant if they carry their arms openly when attacking and when deployed in the vision of an adversary in preparation to attack. Some states have elaborated on this provision by arguing that 1) it is limited to wars of national liberation or occupied territories, 2) “deployment” means when armed forces move towards a place where an attack is to be launched, and 3) “vision” means within the range of natural vision.[2] The laws also state that in situations of levée en masse where civilians spontaneously take up arms against an opposing army they may be entitled to protection as lawful combatants.
 
There has been some criticism that the concept of lawful combatant, or at least the criteria, is outdated and not consistent with modern warfare. For example, in Afghanistan the Taliban forces fought under a chain of command and carried their arms openly but did not wear any visible insignia. Similarly, US commandos in Afghanistan often wore civilian clothes (in clear violation of international humanitarian law).[3] The definition of lawful combatant is continuing to evolve but it remains central to the protection of civilians in warfare.
 
 

[1]               Michael Byers, War Law, (London: Douglas and McIntyre, 2005), p. 118.
[2]               Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, (Cambridge, U.K.: Cambridge University Press, 2005), p. 388.
[3] Byers 128.

 

 

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