International humanitarian law: the status of unlawful combatants

Abstract

The concept of combatancy has always been a fundamental issue under International Humanitarian Law, as it entails the right to attack the enemy and to enjoy prisoner of war status. This article discusses this concept as it relates to lawful and unlawful combatants in international armed conflicts focusing on the provisions of the Geneva Convention of 1949 (The Third Geneva Convention) and the provisions of the 1977 Protocol Additional to the Geneva Conventions (API) in determining what constitutes the status of a combatant under International Humanitarian Law (IHL), the protection accorded combatants as prisoners of war as well as the legal implication of a combatant status. The paper shall make viable recommendations where necessary as it relates to the applicable rules guiding combatancy. It will conclude that lawful combatants under IHL are protected under the Third Geneva Convention while unlawful combatants on the other hand are protected under the Fourth Geneva Convention of 1949 and that the categorization of spies, saboteurs, and mercenaries as unlawful combatants is not tenable, given the fact that acts of espionage, sabotage and mercenarism are lawful methods or means of war within the context of the Third Geneva Convention and API thereto.

Keywords: Combatancy, Lawful Combatants, Unlawful Combatants, Prisoners Of War, Mercenarism, Espionage