OPS Issue 2: Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy

Kenneth Watkin
Jan 2005

Combatancy has throughout the history of organized warfare been an exclusionary concept. Distinguishing between combatants and civilians has long represented an important aspect of warfare and has been recognized as the indispensable means by which humanitarian principles are injected into the rules governing conduct in war. Yet the protection of participants in warfare under international humanitarian law remains characterized by a certain level of uncertainty as regards the codified provisions for combatants and civilians. Who qualifies as a combatant is a question that has plagued those seeking to establish a comprehensive normative regime governing participation in hostilities. Acting on behalf of a state has constituted the primary means of attaining combatant, and therefore legitimate, status. As a result, a significant number of participants in warfare do not meet the established criteria and are, consequently, considered ‘illegitimate’ or ‘unlawful.’ This includes those fighting in international armed conflict as well as groups engaged in armed conflict not of an international character. The uncertain status of these ‘illegitimate’ warriors is evidenced by the variety of terms used to describe them. The traditional dual privileged status approach of dividing a population into combatants and civilians is only as effective as the accuracy with which the definition of ‘combatant’ is established and to the extent there is a clear understanding of when civilians lose the protection of their status by participating in hostilities. Recently, the question of combatancy and the protection of captured enemy personnel has gained prominence due to the decision of the United States government in 2002 to deny prisoner of war status to the Taliban and Al Qaeda fighters. Similarly, there is considerable controversy as to the standard of treatment to be applied to captured unlawful combatants. Historically, a consistent result of being determined to be an unauthorized participant in hostilities has been harsh treatment at the hands of the captor. Questions are asked whether civilian participants in combat are a type of ‘illegal’ combatant, fall under civilian status, or merit their own status under international humanitarian law. The idea of an intermediate status is rejected by many analysts.