“Combatant” describes those persons with a right to directly participate in hostilities between States.
The following persons are combatants in an international armed conflict:
- Members of the armed forces, except medical personnel and religious personnel.
- Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
- they are commanded by a person responsible for his subordinates;
- they wear a fixed distinctive sign recognizable at a distance;
- they carry their arms openly; and
- they conduct their operations in accordance with the laws and customs of war.
c. Members of the regular armed forces who profess allegiance to a government or authority not recognized by the other Party to the conflict.
d. Participants in a levée en masse.
Combatants are required to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.
A combatant who fails to distinguish himself while he is engaged in an attack or in a military operation preparatory to an attack loses his combatant status if he is captured, which means he does not have prisoner ofwar status and can be tried for an act of war.
However, he is to be given protections equivalent in all respects to those provided to prisoners of war under the third Geneva Convention.
Notably, in international armed conflicts governed by Additional Protocol I, a combatant distinguishes himself sufficiently if he carries his arms openly:
- during each military engagement; and
- during such time as he is visible to the adversary while engaged in a military deployment preceding the launching of an attack in which he is to participate.
A combatant who falls into the power of an adverse party to the conflict is a prisoner of war.
See also Unlawful combatants, Detention
DEFINITION
Members of armed forces
OUTLINE
LEGAL SOURCES
conditions
GCI, 13 (see ICRC updated Commentary)
GCII, 13 (see ICRC updated Commentary)
GCIII, 4(A)
PI, 43
PI, 44/3
members of regular armed forces
GCIII, 4A/1
members of armed forces to group professing allegiance to non-recognised government, or authorities
GCI, 13/3 (see ICRC updated Commentary)
GCII, 13/3 (see ICRC updated Commentary)
GCIII, 4A/3
PI, 43/1
members of irregular militia, volunteer corps belonging to a party to a conflict
GCIII, 4A/2
members of organised armed groups or units responsible to a party to a conflict
PI, 43/1
members of organised resistance groups
GCI, 13/2 (see ICRC updated Commentary)
GCII, 13/2 (see ICRC updated Commentary)
GCIII, 4A/2
PI, 44/6
members of regular armed forces including militias and volunteer corps
PI, 43/1-2
levée en masse See levée en masse
GCI, 13/6 (see ICRC updated Commentary)
GCII, 13/6 (see ICRC updated Commentary)
GCIII, 4A6
PI, 44/6
DOCUMENT
CASES
Malaysia, Osman v. Prosecutor
Israel, Military Prosecutor v. Kassem and Others
Sudan, Report of the UN Commission of Enquiry on Darfur (A. para. 422)
Case Study, Armed Conflicts in the former Yugoslavia (para 19)
Germany, Government Reply on the Kurdistan Conflict (para 8)
US, Status and Treatment of Detainees Held in Guantanamo Naval Base
European Court of Human Rights, Kononov v. Latvia
U.S., Lethal Operations against Al-Qa’ida Leaders
Syria, Press conference with French President Francois Hollande and Russian President Vladimir Putin
ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts in 2015 [para 117]
USA, Jawad v. Gates
Germany, Aerial Drone Attack in Mir Ali/Pakistan
Syria, Syrian rebels treat captured Filipino soldiers as 'guests'
ICTY, The Prosecutor v. Prlić et al.
US, Combatant Immunity and Recognition of belligerency
The Netherlands/Ukraine, Classification of the Situation and Combatant Status (2014)
Unprivileged combatants
See Mercenaries
See Spies
Unlawful combatants
See Unlawful combatants
BIBLIOGRAPHIC RESOURCES
Suggested readings:
CRAWFORD Emily, The Treatment of Combatants and Insurgents under the Law of Armed Conflict, Oxford, OUP, 2010, 213 pp.
GARRAWAY Charles H.B., ““Combatants” – Substance or Semantics?”, in SCHMITT Michael & PEJIC Jelena (eds), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein, M. Nijhoff, Leiden/Boston, 2007, pp. 317-335.
KASTENBERG Josh, “The Customary International Law of War and Combatant Status: Does the Current Executive Branch Policy Determination on Unlawful Combatant Status for Terrorists Run Afoul of International Law, or Is It Just Poor Public Relations?”, in Gonzaga Law Review, Vol. 39, 2003-2004, pp. 495-537.
LAPIDOTH Ruth, “Qui a droit au statut de prisonnier de guerre ?”, in RGDIP, Vol. 82/1, 1978, pp. 170-210.
NAHLIK Stanislaw E., “L’extension du statut de combattant à la lumière du Protocole I de Genève de 1977”, in Collected Courses, Vol. 164, 1979, pp. 171-249.
O’CONNELL Mary Ellen, “Combatants and the Combat Zone”, in University of Richmond Law Review, Vol. 43, Issue 3, March 2009, pp. 845-863.
SASSÒLI Marco, “La ‘guerre contre le terrorisme’, le droit international humanitaire et le statut de prisonnier de guerre”, in CYIL, Vol. 39, 2001, pp. 211-252
WATKIN Kenneth, “The Notion of Combatant, Armed Group, Civilians and Civilian Population in International Armed Conflicts”, in BERUTO Gian Luca (ed.), The Conduct of Hostilities: Revisiting the Law of Armed Conflict: 100 Years After the 1907 Hague Conventions and 30 Years After the 1977 Additional Protocols: Current Problems of International Humanitarian Law, Sanremo, 6-8 September 2007: Proceedings, Milano, Nagard, 2008, pp. 59-69
Further readings:
ALDRICH George H., “Prospects for United Sates Ratification of Additional Protocol I to the 1949 Geneva Conventions”, in AJIL, Vol. 85/1, 1991, pp. 1-20.
EMANUELLI Claude (ed.), Les casques bleus : policiers ou combattants?, Montréal, Wilson & Lafleur, 1997, 130 pp.
DEL MAR Katherine, “The Requirement of “Belonging” under International Humanitarian Law”, in EJIL, Vol.
21, No. 1, February 2010, pp. 105-124.
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.
MELZER Nils, Targeted Killing in International Law, Oxford, OUP, 2008, 468 pp.
STEPHENS Dale & LEWIS Angeline, “The Targeting of Contractors in Armed Conflict”, in YIHL, Vol. 9, 2006, pp. 25-64.
WATTS Sean, “Combatant Status and Computer Network Attack”, in Virginia Journal of International Law, Vol. 50, No. 2, 2010, pp. 391-447
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
