The term “unprivileged belligerent” is used to refer to an individual who directly participates in an international armed conflict but who either does not have or has lost their combatant status. As a result, they are not entitled to combatant privilege (i.e. immunity from prosecution for lawful acts of war) and do not benefit from prisoner of war status if they fall into enemy hands. Sometimes the term is equally used to designate (fighting) members of a non-state armed group in a non-international armed conflict.
The specifics of how IHL applies to such persons is controversial. Some consider that unprivileged belligerents are civilians who may only be targeted if and for as long as they directly participate in hostilities. If they fall into enemy hands, they are protected, as civilians, by international humanitarian law. Others consider that unprivileged belligerents are neither civilians nor combatants but belong to a third category of persons who may be attacked at any time (like combatants). If falling into enemy hands, they may be interned but do not benefit from the protective regimes that are designed for either prisoners of war or civilian internees. The problem with this reasoning is that it introduces an unacceptable protection gap into the protective framework of international humanitarian law.
See Direct participation in hostilities; Combatants; Status; Immunities; Prisoners of war, Internment; Civilians; Civilians taking part in hostilities; Unlawful combatants; Spies; Saboteur; Terrorism and terrorists;
OUTLINE
CASES
Israel, Detention of Unlawful Combatants
United States, Status and Treatment of Detainees Held in Guantanamo Naval Base
US, Military Commissions (Part II.)
U.S., Lethal Operations against Al-Qa’ida Leaders
United States, Jurisprudence Related to the Bombing of the U.S.S. Cole
BIBLIOGRAPHIC RESOURCES
Suggested readings:
DÖRMANN Knut, “The Legal Situation of ‘Unlawful/Unprivileged Combatants’”, in IRRC, No. 849, March 2003, pp. 45-74 BAXTER Richard R., “So-Called ‘Unprivileged Belligerency’: Spies, Guerrillas and Saboteurs”, in BYIL, Vol. 28, 1951, pp. 323-345. DINSTEIN Yoram, “Unlawful Combatancy”, in IYHR, Vol. 32, 2002, pp. 247-270. MALLISON W. Thomas & MALLISON Sally V., “The Juridical Status of Irregular Combatant Under the International Humanitarian Law of Armed Conflict”, in Case Western Reserve Journal of International Law, Vol. 9(1), 1977, pp. 38-78. MOORE Catherine, “The United States, International Humanitarian Law and the Prisoners at Guantánamo Bay”, in The International Journal of Human Rights, Vol. 7/2, Summer 2003, pp. 3-27. SASSÒLI Marco, “The Status of Persons Held in Guantánamo Under International Humanitarian Law”, in Journal of International Criminal Justice, Vol. 2/1, March 2004, pp. 96-106. TOMAN Jiri, “The Status of Al Qaeda/Taliban Detainees Under the Geneva Conventions”, in IYHR, Vol. 32, 2002, pp. 271-304. VIERUCCI Luisa, “Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantánamo Bay Detainees are Entitled”, in Journal of International Criminal Justice, Vol. 1, 2003, pp. 284-314.