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The Practical Guide

to Humanitarian
Law
« Calling things by the wrong name adds to the a�iction
of the world. » Albert Camus.

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Categories
Children (12) (/content/category/1-children/)
Collective security (19) (/content/category/2-collective-security/)
Detention (14) (/content/category/3-detention/)
Family (10) (/content/category/4-family/)
Food (9) (/content/category/5-food/)
Health (14) (/content/category/6-health/)
Human Rights (36) (/content/category/7-human-rights/)
Humanitarian and relief personnel (13) (/content/category/8-humanitarian-
and-relief-personnel/)
Humanitarian law (46) (/content/category/9-humanitarian-law/)
International law (31) (/content/category/10-international-law/)
Missing persons and the dead (6) (/content/category/11-missing-persons-
and-the-dead/)
Nongovernmental Organizations (13) (/content/category/12-
nongovernmental-organizations/)
Occupation (17) (/content/category/13-occupation/)
Peacekeeping (17) (/content/category/14-peacekeeping/)
Population displacement (14) (/content/category/15-population-
displacement/)
Protection (33) (/content/category/16-protection/)
Recourse (24) (/content/category/26-recourse/)
Refugees (12) (/content/category/17-refugees/)
Relief (26) (/content/category/18-relief/)
Responsibility (11) (/content/category/19-responsibility/)
Sanctions (25) (/content/category/20-sanctions/)
United Nations (UN) (27) (/content/category/21-united-nations-un/)
Violations of law (22) (/content/category/22-violations-of-law/)
War (42) (/content/category/23-war/)
Weapons (6) (/content/category/24-weapons/)
Women (11) (/content/category/25-women/)

Index
Alias (/content/alias/all/)
Alphabetical index (/content/index/a-z/)
International conventions (/content/conventions/all/)
Rati�ed conventions by countries (/content/conventions/all-countries/)
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Authors and participants (/content/page/Auteurs_et_intervenants)

Combatants
Combatants are persons who are authorized to use force in
situations of armed conflict by international humanitarian law.
Conversely, they constitute legitimate military targets in times
of armed conflict. But, contrary to civilians, they may not be
subject to criminal prosecutions for their participation in
hostilities as long as their use of force is in conformity with the
provisions of the law of armed conflict, also named
humanitarian law.

The use of force may not occur as a result of individual initiative

but must take place under a clear chain of responsible
command, within the framework of respect for the rules of the
law of armed conflict. According to the definitions provided by
the Geneva Conventions and their first 1977 Additional
Protocols, combatants are members of national armed forces or
organized groups placed under the effective control of those
forces. It is this authorization to use force that distinguishes
combatants from civilians.

Combatants can be prosecuted under national or international

criminal law if they commit war crimes, crimes against
humanity, or acts of genocide, even if they act under the orders
of their superiors but not for their plain participation in the
hostilities.

The status of combatant gives rise to a special regime of

protection, established by the Third Geneva Convention, which
regulates the treatment of prisoners of war. The definition of a
combatant is closely linked to the notion of a prisoner of war.

Additional Protocol I extended the notions of “combatants” and

“members of armed forces” defined by the Third Geneva
Convention to take into account the evolution of armed
conflicts and the diversification of methods of warfare. This
definition standardizes the regime of protection and imposes
equal responsibilities on all those who take up arms. The
combatant under the definition of the Third Geneva Convention
is entitled to prisoner-of-war status and cannot be prosecuted
for participation in hostilities. Nevertheless, this status
corresponds to privileges granted by States to their national
armies. This status has not been implemented in non-
international armed conflicts, where, by definition,
governmental armed forces fight non-state armed groups,
rebels, or dissidents. These non-state armed groups have the
status of a party to the conflict, which compels them to comply
with the provisions of international humanitarian law
applicable to non-international armed conflicts, but they are
not entitled to combatant status.

Regarding international armed conflicts, Additional Protocol II

provides special safeguards for civilians who take part in
hostilities, but they do not correspond to the reality and
activities of non-state armed groups, who are also present in
international armed conflicts.

▸ Civilians (/content/article/3/civilians) ▸ International

armed conflict (/content/article/3/international-armed-
conflict) ▸ Non-international armed conflict (/content/article
/3/non-international-armed-conflict) ▸ Non-state armed
groups (/content/article/3/non-state-armed-groups) ▸ Parties
to the conflict (/content/article/3/parties-to-the-conflict)

Demonizing and discrediting the enemy is common practice in

conflict situations. The enemy is often described as a bandit,
criminal, hooligan, or terrorist. Avoiding the use of the term
combatant prevents those who fall into the hands of the enemy
from enjoying the safeguards granted to prisoners of war and
increases their risk of being ill treated. Questioning the status of
combatants or of those who participate in hostilities weakens
the status of civilians.

By taking into account the developments in types of conflict, the

two 1977 Additional Protocols have tried to extend the status of
combatant in international armed conflicts and to create
regimes of protection for civilians who directly participate in
hostilities in the two types of conflict (infra).
Whatever is the nature of the armed conflict, it is prohibited to
enlist children under fifteen in the armed forces. This
prohibition, initially provided for international armed conflicts
(API Art. 77), was extended to non-international armed
conflicts through international criminal law, which made it a
war crime (Arts. 8.2.b.xxvi, 8.2.e.vii of the Rome Statute). The
international Convention on the Rights of the Child (CRC), as
well as many other conventions, has restated this prohibition.
Child soldiers remain protected by specific rights provided by
humanitarian law, whether they are prisoners of war or not.
Individuals who forcibly enlist children under fifteen in armed
forces are guilty of war crimes and can be prosecuted before the
International Criminal Court and national tribunals.

▸ Children (/content/article/3/children)

The definition of a combatant is crucial because the

implementation of humanitarian law rests on the distinction
between civilians and combatants. The latter are bound by the
law of armed conflict to respect specific obligations. This law
was also written to protect them if, for instance, they are
prisoners of war. Questioning the status of a combatant
automatically alters the definition and subsequent protection of
civilians.

In the context of internal armed conflicts, humanitarian law

does not use the term combatant because it is difficult to
determine clearly who is a member of the national armed forces
and who is a member of an organized opposition group. As a
consequence, it would be difficult to define who is legitimate in
the use of force. In those situations, humanitarian law
establishes a plain distinction between the persons taking part
in hostilities and those who are not (or no longer). These two
categories of people are granted—under the appropriate
circumstances—the protection to which they are entitled as
either combatant, prisoners of war, person detained in relation
with the conflict, wounded and sick, or civilian.

Even if non-state armed groups do not have combatant status,

they are parties to the conflict, and as such, they are compelled
to respect the provisions of humanitarian law applicable to non-
international armed conflicts.

Status of Combatants in
International Armed Conflicts
The study on the rules of customary international humanitarian
law published by the ICRC in 2005 (customary IHL study) has
summarized the consensus on the definition of combatants.
Rules 3 and 4 concerning the definition of combatants only
apply in international armed conflicts. Rule 3 provides that “all
members of the armed forces of a party to the conflict are
combatants, except medical and religious personnel,” while
Rule 4 affirms that “the armed forces of a party to the conflict
consist of all organized armed forces, groups and units which
are under a command responsible to that party for the conduct
of its subordinates.”

Armed Forces
As defined by the Third Geneva Convention and Additional
Protocol I, the armed forces of a party to a conflict consist of all
the organized armed forces, groups, and units placed under a
command that is responsible for the conduct of its
subordinates. These forces, groups, and units make up the
armed forces of a party even if that party is represented by a
government or an authority that is not recognized by the
adverse party. Armed forces must be subject to an internal
disciplinary system that, among other obligations, enforces
compliance with the law of armed conflict. The concept of
armed forces is defined by the Third Geneva Convention and
Protocol Additional I (API Arts. 43, 50; GCIII Art. 4.a, paras. 1,
2, 3, and 6).

Combatants and Prisoners of War

-According to the Third Geneva Convention, combatants are:

• members of the armed forces of a party to the conflict, as

well as members of militias or volunteer corps forming
part of such armed forces (GCIII Art. 4.a.1); or

• members of regular armed forces, even those that profess

allegiance to a government or authority not recognized by
the adverse power (GCIII Art. 4.a.3); or

• members of other militias and members of volunteer

corps, including those of organized resistance movements
belonging to a party to the conflict and operating in or
outside their own territory, even if this territory is
occupied, provided that such militias or volunteer corps,
including such organized resistance movements, fulfill the
following conditions:

1. that of being commanded by a person responsible

for his subordinates;
2. that of having a fixed distinctive sign recognizable at
a distance;
3. that of carrying arms openly;
4. that of conducting their operations in accordance
with the laws and customs of war (GCIII Art. 4.a.2);
• 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 (GCIII Art. 4.a.6).

This definition is problematic because it creates specific

conditions that only some categories of combatants will have to
fulfill. According to other articles of the Third Geneva
Convention, the non-respect of such or such condition by a
person does not ipso facto exclude this person from enjoying
the status of combatant or prisoner of war. While the conditions
listed appear to be clear at first, different categories of
combatants have been discriminated against; there have even
been unjustified refusals to afford the status of combatant and
prisoner of war. Such risk is illustrated by the reference made
by the American administration to the notion of “unlawful
combatant” in order to avoid applying the status of prisoner of
war to some combatants on the basis of nationality, lack of
distinct badge, or non-respect of humanitarian law. Because of
these risks, Additional Protocol I of 1977 clarified and
simplified the definition of combatant, including in this concept
all persons who participate in hostilities. It also specified and
limited the basis for exclusion from the status of combatant and
prisoner of war.

-According to Additional Protocol I to the Geneva Conventions,

combatants are:

• the armed forces of a party to a conflict, and also

• groups and units that are under a command responsible
to that party for the conduct of its subordinates, even if
that party is answerable to a government or an authority
not recognized by an adverse party. Such armed forces
shall be subject to an internal disciplinary system, which,
inter alia, shall enforce compliance with the rules of
 international law applicable in armed conflict (API Arts.
43, 50).

▸ Insurgents (/content/article/3/insurgents) ▸ Resistance

movements (/content/article/3/resistance-movements) ▸
Terrorism (/content/article/3/terrorism)

According to these clauses, resistance fighters, insurgents,

rebels, and persons who are members of “guerrilla” forces or
armed groups placed under the effective control of a party to
the conflict may have the status of combatants or of members of
armed forces as long as they follow certain conditions. These
include carrying arms openly during confrontations, being
commanded by a person responsible for his or her
subordinates, and following an internal disciplinary system
that—among other obligations—is able to impose compliance
with the rules of international law applicable in armed conflict.
Additional Protocol I restricts the scope of the clauses allowing
these people to be excluded from having the combatant status.

The fact that one party to a conflict may not recognize the
legitimacy of the adverse party shall not deprive combatants of
this party of the status of prisoner of war (GCIII Art. 4.a.1, API
Art. 43.1). Additional Protocol I does not set up any condition
based on the nationality of combatants; therefore, it is not
possible to exclude from the category of combatants those non-
nationals who have volunteered and joined the armed forces of
a party to a conflict. The conflict may qualify as international
where these foreign volunteers act, de facto, under the authority
of their State of origin.

During an armed conflict, “terrorists” do not form a specific

group legally identified by humanitarian law. The Geneva
Conventions and Additional Protocols allow for only one kind
of distinction: between civilians and combatants or between
those who are taking part in hostilities and those who are not
(or are no longer involved). Humanitarian law prohibits as war
crimes acts aimed at spreading terror among the civilian
population. Thus, those who use methods of terror are
committing a crime. Authorities who have control over such
people must prosecute them according to the rule of law. Where
these people act in agreement with, or on behalf of, an authority
involved in the conflict, they then qualify as combatants taking
part in it. A combatant who uses such methods can be arrested,
detained, and prosecuted for the crime committed, but does not
lose combatant status.

▸ Death penalty (/content/article/3/death-penalty) ▸

Detention (/content/article/3/detention) ▸ Ill-treatment
(/content/article/3/ill-treatment) ▸ Judicial guarantees
(/content/article/3/judicial-guarantees) ▸ Prisoners of war
(/content/article/3/prisoners-of-war) ▸ Sanctions (/content
/article/3/sanctions) ▸ Terror (/content/article/3/terror) ▸
Terrorism (/content/article/3/terrorism) ▸ Torture (/content
/article/3/torture)

At times, civilians may take part in hostilities without formally

belonging to any regular armed force. This may happen, most
notably, in the context of spontaneous uprisings in occupied
territories. It may also occur in other armed conflicts where the
distinction between civilians and combatants becomes more
difficult. In such cases, civilians who directly take part in
hostilities temporarily lose the protection provided for civilians,
but only for the duration of their participation in the hostilities
(API Art. 51.3, APII Art. 13.3). In such cases, if captured, they
may benefit from the status of prisoner of war (API Art. 45).

In case of doubt concerning the status of an individual who

does not fall into one of the categories of combatants as defined
by the Geneva Conventions and their Additional Protocols, he
or she must be considered a civilian (API Art. 50).

The application of the provisions concerning the direct

participation of civilians in hostilities could be extended by
analogy to situations of non-international armed conflicts.

Clauses of Exclusion from the Status

of Combatant
Additional Protocol I takes up, clarifies, and simplifies the
criteria set out in the definitions of the various categories of
combatants. Where these criteria or conditions are not fulfilled,
the person concerned does not automatically lose his or her
combatant or prisoner of war status or their right to be treated
according to it. Additional Protocol I clarifies these criteria and
their consequences.

• The existence of a command that is responsible for the

conduct of its subordinates is an important criterion when
distinguishing acts of violence that are the result of an
isolated initiative of those who are involved in the armed
conflict. The existence of a hierarchical link impacts on
the criminal responsibility framework.

The command must refrain from giving unlawful orders and

must impose an internal disciplinary system that provides for
sanctions for individual criminal behavior. The concept of
responsible command does not require the command to be
legitimate. Suffice it to say that they have means to control their
force and have an internal disciplinary system that applies to
combatants.

• The obligation to respect humanitarian law lies with

combatants and armed forces. Awareness of this
obligation is therefore inherent to the concept of
 combatant. Violations of humanitarian law by a
combatant do not deny them combatant or prisoner of
war status. A party to a conflict may not justify its own
violations of humanitarian law by stating that its enemy
violated humanitarian law initially. R▸ espect for
international humanitarian law (/content/article
/3/espect-for-international-humanitarian-law)

Additional Protocol I stipulates that although all combatants

are obliged to comply with the rules of international law
applicable in armed conflict, violations of these rules shall not
deprive a combatant of his right to be a combatant or, if he falls
into the power of an adverse party, of his right to be a prisoner
of war (API Art. 44.2). Additional Protocol I particularly insists
on the duty of combatants to distinguish themselves from the
civilian population, yet does not make it an absolute obligation.
A combatant who commits a war crime continues to enjoy the
status of combatant or prisoner of war; however, he can be
prosecuted for the crimes committed, according to the rule of
law. ▸ Judicial guarantees (/content/article/3/judicial-
guarantees) ▸ Prisoners of war (/content/article/3/prisoners-
of-war) ▸ Responsibility (/content/article/3/responsibility)

• The duty to carry a distinct insignia, to carry arms openly,

and to distinguish themselves from the civilian
population. Additional Protocol I brings some flexibility
and clarity to the obligation to openly carry a distinct
insignia, to carry arms openly, and to distinguish
themselves from the civilian population, as defined in the
Third Geneva Convention. Combatants remain obliged to
distinguish themselves from the civilian population while
they are engaged in an attack or in a military operation
preparatory to an attack (API Art. 44.3). However,
Additional Protocol I recognizes that there are situations
 of armed conflict where, due to the nature of the
hostilities, an armed combatant cannot distinguish
himself from the civilian population. These clauses are
particularly relevant in situations of guerrilla warfare,
insurrection, fighting against occupying forces, and non-
international armed conflict. In such cases, Additional
Protocol I stipulates that if 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:

1. during each military engagement, and

2. 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.

As long as the combatant respects these two conditions, his acts

shall not be considered as perfidious (API Art. 44.3) ( ▸ Perfidy
(/content/article/3/perfidy) ). Additional Protocol I stipulates
that whoever does not respect these two obligations will forfeit
his right to be a prisoner of war, but will, nevertheless, be given
protections equivalent in all respects to those accorded to
prisoners (API Art. 44.4). Additional Protocol I further provides
some flexibility to the notion of distinctive insignia in order to
take specific circumstances into account. The insignia does not
necessarily have to be the same on every occasion; it must,
however, be distinctive. On the issue of guarantees when
defining and awarding the status of prisoner of war, see the
entry on ▸ Prisoners of war (/content/article/3/prisoners-of-
war) .

Rule 106 of the ICRC customary IHL study provides that in

international armed conflicts, “combatants must distinguish
themselves from the civilian population while they are engaged
in an attack or in a military operation preparatory to an attack.
If they fail to do so, they do not have the right to prisoner-of-
war status.”

However, this must obey special procedures and open the right
to other fundamental guarantees of treatment.

Fundamental Guarantees of Treatment

of Combatants
The Third Geneva Convention establishes a detailed (and
therefore strict) definition of who may be considered a prisoner
of war and benefit from that status. This definition is broader
than that of combatants in the strict sense of the term (GCIII
Arts. 4.1, 4.5).

Additional Protocol I, on the other hand, establishes that “any

combatant who falls into the power of an adverse party shall
have the status of prisoner of war” (API Art. 44.1).

The clauses of exclusion from the prisoner-of-war status are

completed by guarantees of procedure and treatment for
combatants. Additional Protocol I specifies that “a person who
takes part in hostilities and falls into the power of an adverse
Party shall be presumed to be a prisoner of war, and therefore
shall be protected by the Third [Geneva] Convention” (API Art.
45.1). Only a competent tribunal may decide on an individual’s
status; administrative or military authorities do not have
jurisdiction on this issue.

Additional Protocol I also provides that “any person who has

taken part in hostilities, who is not entitled to prisoner-of-war
status and who does not benefit from more favorable treatment
in accordance with the Fourth Convention, shall have the right
at all times to the protection of Article 75 of this Protocol” (API
Art. 45.3).

Spies do not have the right to the status of prisoner of war (API
Art. 46), but they cannot be condemned without judgment
(Rule 107 of the customary IHL study) and benefit from other
fundamental guarantees.

Mercenaries do not have the right to the status of combatant or

of prisoner of war (API Art. 47), but they cannot be condemned
without judgment (Rule 108 of the customary IHL study) and
are entitled to the fundamental guarantees.

▸ Espionage (/content/article/3/espionage) ▸ Fundamental

guarantees (/content/article/3/fundamental-guarantees) ▸
Mercenaries (/content/article/3/mercenaries) ▸ Prisoners of
war (/content/article/3/prisoners-of-war)

Obligations of Combatants
Combatants are under the obligation to comply with the rules of
humanitarian law (API Arts. 43.1, 44.1).

The Geneva Conventions define which acts are considered war

crimes. Combatants who commit such crimes are individually
responsible, even if they acted under the orders of a superior.
The military commander or other hierarchical superior will also
be held criminally responsible for the acts of their subordinates,
whom they are under the obligation to stop or prevent.

Nevertheless, the fact that a combatant may have violated

humanitarian law shall not deprive him or her of the right to
the status of combatant nor of prisoner of war should he or she
fall into the power of an adverse party (API Art. 44.2). A
prisoner of war who has committed crimes and serious
breaches of humanitarian law may always be prosecuted, as
long as the rule of law that applies under humanitarian law is
respected. However, an individual may not be prosecuted for
merely belonging to an armed group or for merely taking part
in the hostilities.

▸ Duty of commanders (/content/article/3/duty-of-

commanders) ▸ Judicial guarantees (/content/article
/3/judicial-guarantees) ▸ Methods (and means) of warfare
(/content/article/3/methods-and-means-of-warfare) ▸
Prisoners of war (/content/article/3/prisoners-of-war) ▸
Responsibility (/content/article/3/responsibility) ▸ War
(/content/article/3/war) ▸ War crimes/Crimes against
humanity (/content/article/3/war-crimescrimes-against-
humanity)

In order to make the protection of civilians possible,

combatants are under the obligation to distinguish themselves
from the civilian population. This is of particular importance
while the combatants are engaged in an attack or a military
operation in preparation for an attack.

However, the Geneva Conventions recognize that there are

situations in armed conflicts in which, owing to the nature of
the hostilities, armed combatants cannot distinguish
themselves in such a manner. In such cases, they will retain
their status as combatants as long as they carry their weapons
openly during each military engagement (API Arts. 44.3, 48).

▸ Attacks (/content/article/3/attacks) ▸ Civilians (/content

/article/3/civilians) ▸ Prisoners of war (/content/article
/3/prisoners-of-war)

Civilians Taking Part in Hostilities

Without specifying conditions or circumstances, Additional
Protocol I provides for the protection of those who take part in
hostilities. It stipulates that those people involved in the conflict
who have fallen into the enemy hands shall be presumed to be
prisoners of war, and therefore will be protected by the Third
Convention (API Art. 45.1). This clause prevents individuals
from being denied both civilian and combatant status and
therefore from being excluded from all protective measures
afforded by humanitarian law. Article 45.1 is complementary to
the rights afforded to inhabitants of a non-occupied territory
who spontaneously take up arms on the approach of the enemy
to resist the invading forces. In such situations these
inhabitants are afforded prisoner-of-war status if they are
captured (GCIII Art. 4.A.6).

The link between civilian and combatant status is defined by

Additional Protocol I, according to which civilians enjoy the
protection afforded by humanitarian law, unless and for such
time as they take a direct part in hostilities (API Art. 51.3).
Therefore, the loss of civilian status is strictly limited to the
period of time during which the person in question in involved
in the hostilities. Consequently, when civilians fall into the
hands of the enemy while directly taking part in the hostilities,
they lose their protection as civilians and may then claim
prisoner-of-war status due to their participation in the fighting
(API Art. 45.1). If, however, these people fall into the hands of
the adverse party without directly taking part in hostilities, they
should still enjoy protection as civilians (API Arts. 50, 51.3).

In case of doubt on the status of combatants, an individual who

takes part in hostilities and falls into the hands of an adverse
party is presumed to be a prisoner of war. In case of doubt,
decisions about the individual’s status are not left to the
administrative or military authorities but must be made by a
competent judicial authority (API Art. 45).

In light of the evolution of armed conflicts and the growing

difficulty of distinguishing between civilians and combatants in
contemporary non-international armed conflicts, the ICRC
published in 2010 Interpretive Guidance on the Notion of
Direct Participation in Hostilities under IHL .

▸ Civilians (/content/article/3/civilians) ▸ Situations and

persons not expressly covered (/content/article/3/situations-
and-persons-not-expressly-covered) ▸ by humanitarian law
(/content/article/3/by-humanitarian-law)

Status of Combatants in
Internal Armed Conflicts
International humanitarian law does not recognize combatant
status for members of non-state armed groups involved in non-
international armed conflicts, but it can be applied by way of
special agreement by parties to the conflict, as encouraged by
Common Article 3.

If such a status is not applied, they are considered as civilians

taking part in the hostilities (APII Art. 13.3). However, they
must at a minimum benefit from the fundamental guarantees
established for persons who no longer participate in the
hostilities (GCI-IV Art. 3; APII Arts. 4, 5).

Additional Protocol II also provides specific provisions to fill

the vacuum created by the absence of prisoner-of-war status.
Article 5 regulates the treatment of persons deprived of their
liberty for reasons related to the armed conflict, while Article 6
spells out guarantees concerning the prosecution and
punishment of criminal offences related to the armed conflict.
Those judicial guarantees are very important because in non-
international armed conflicts, the sole fact of taking up arms
against national authorities is considered a crime under
domestic law. The guarantees contained in these articles are
minimum guarantees, which can be completed by more
favorable provisions provided by the rest of humanitarian law
with the agreement of the parties to the conflict.

▸ Civilians (/content/article/3/civilians) ▸ Fundamental

Guarantees (/content/article/3/fundamental-guarantees) ▸
Judicial guarantees (/content/article/3/judicial-guarantees) ▸
Non-state armed groups (/content/article/3/non-state-armed-
groups)

Unlawful Combatants

The term unlawful combatant has been used in the context of

legal proceedings related to the war against terrorism.
Combatant status and rights attached thereto was denied to
such people by some States because they do not meet the
conventional criteria relating to the status of combatant and
prisoner-of-war status. Civilian status and the rights attached
thereto were also refused because of their participation in
actions of combat.

These debates were finally settled by several judicial decisions,

including those of the U.S. Supreme Court and the Israel
Supreme Court (U.S. Supreme Court, Hamdan v. Rumsfeld ,
548 U.S. [2006] and Supreme Court of Israel sitting as high
court of justice, Public Committee against Torture in Israel v.
the Government of Israel et al. , HCJ 769/02, Judgment, 11
December 2005).

These judgments recalled legal evidence: humanitarian law

cannot be invoked to deny fundamental rights to actors in
conflicts or to create categories of conflicts that would escape
any law. Indeed, the interpretation of international conventions
must remain faithful to the spirit of these texts and cannot lead
to absurd or unreasonable situations.
Hence, on unlawful combatants, the Israel Supreme Court held
that the categories of combatant and civilian were mutually
exclusive and that a third category, which would concern
unlawful combatants, did not exist. The Court deduced that
terrorists belonged to the category of civilians taking part in
hostilities. ▸ Civilians (/content/article/3/civilians) ▸
Terrorism (/content/article/3/terrorism)

The U.S. Supreme Court also pointed out that the categories of
international and non-international armed conflict were
mutually exclusive and that therefore there was no other
category for which no humanitarian law would apply. It
concluded that, at a minimum, Common Article 3 to the four
Geneva Conventions was still applicable in these situations. ▸
Non-international armed conflict (/content/article/3/non-
international-armed-conflict) ▸ Terrorism (/content/article
/3/terrorism)

▸ Attacks (/content/article/3/attacks) ▸ Children (/content

/article/3/children) ▸ Civilians (/content/article/3/civilians)
▸ Detention (/content/article/3/detention) ▸ Duty of
commanders (/content/article/3/duty-of-commanders) ▸
Espionage (/content/article/3/espionage) ▸ Fundamental
guarantees (/content/article/3/fundamental-guarantees) ▸ Ill-
treatment (/content/article/3/ill-treatment) ▸ Insurgents
(/content/article/3/insurgents) ▸ Mercenaries (/content
/article/3/mercenaries) ▸ Methods (and means) of warfare
(/content/article/3/methods-and-means-of-warfare) ▸ Non-
combatants (/content/article/3/non-combatants) ▸ Prisoners
of war (/content/article/3/prisoners-of-war) ▸ Resistance
movement (/content/article/3/resistance-movement) ▸
Responsibility (/content/article/3/responsibility) ▸ Situations
and people not expressly covered by humanitarian law
(/content/article/3/situations-and-people-not-expressly-
covered-by-humanitarian-law) ▸ Special agreement (/content
/article/3/special-agreement) ▸ Terrorism (/content/article
/3/terrorism) ▸ War (/content/article/3/war) ▸ War
crimes/Crimes against humanity (/content/article/3/war-
crimescrimes-against-humanity)

For Additional Information: Callen, Jason. “Unlawful

Combatants and the Geneva Conventions.” Virginia Journal of
International Law (2004): 1025–72.

Dinstein, Yoram. The Conduct of Hostilities under the Law of

International Armed Conflict . Cambridge: Cambridge
University Press, 2004, esp. chaps. 2 and 5.

Dormann, Knut. “The Legal Situation of

‘Unlawful/Unprivileged Combatants.’” International Review of
the Red Cross 849 (March 2003): 45–85.

Hoffman, Michael H. “Terrorists Are Unlawful Belligerents, not

Unlawful Combatants: A Distinction with Implications for the
Future of International Humanitarian Law.” Case Western
Journal of International Law 34, no. 2 (2002): 227–30.

Ipsen, Kurt. “Combatants and Non-combatants.” In The

Handbook of Humanitarian Law in Armed Conflicts , edited
by Dieter Fleck, 65–80. Oxford: Oxford University Press, 1995.

Meron, Theodor, and Allan Rosas. “Current Development: A

Declaration of Minimum Humanitarian Standards.” American
Journal of International Law 85 (April 1991): 375–81.

Sassoli, Marco, and Laura M. Olson. “The Relationship between

International Humanitarian Law and Human Rights Law
Where It Matters: Admissible Killings of Fighters and
Internment in Non-international Armed Conflicts.”
International Review of the Red Cross 871 (September 2008):
599–627.
Sjoberg, Laura. “Women Fighters and the ‘Beautiful Soul’
Narrative.” International Review of the Red Cross 877 (March
2010): 53–68.

Watkin, Kenneth. “Warriors without Rights? Combatants,

Unprivileged Belligerents, and Struggle over Legitimacy.”
Harvard Program on Humanitarian Policy and Conflict
Research, Occasional Paper Series 2, 2005.

Zachary, Shlomy. “Between the Geneva Conventions: Where

Does the Unlawful Combatant Belong?” Israel Law Review 38
(2005): 378–417.

Article also referenced in the 3 following categories :

• Humanitarian law (46) (/content/category/9-

humanitarian-law/)
• Occupation (17) (/content/category/13-occupation/)
• War (42) (/content/category/23-war/)

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