The distinction between combatants and noncombatants is crucial in international humanitarian law. Only combatants have a right to participate actively in warfare, and thus cannot be prosecuted for those actions if they are in concordance with humanitarian law. If a combatant is captured by the enemy they have the right to a status as prisoner of war and as such have certain rights.
Noncombatants can be dealt with in any way their enemy sees fit. Prisoners are still, however, guaranteed certain fundamental rights by the article 75 in the Protocol Additional to the Geneva Convention (I) (1977), for example, the right to a fair trial.
The different categories of combatants can be summarized as follows:
- Regular soldiers:
- This is the traditional core of a state's armed forces: Military personel in uniform.
- Distinct and armed soldiers:
- These are militia or volunteer corps that complies with the following criteria from the Hague Convention of 1907 (IV): (1) To be commanded by a person responsible for his subordinates; (2) to have a fixed distinctive emblem recognizable at a distance; (3) to carry arms openly, and; (4) To conduct their operations in accordance to the laws and customs of war. In addition to this the Geneva Convention of 1949 (III) adds soldiers “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.”
- Distinct or armed soldiers:
- These are either persons, distinctly not civilians, working in the chain of command of a belligerent party (that is, warring power) that acts in accordance to humanitarian law while not bearing arms, or Guerilla-units of the armed forces or freedom fighters:
“There are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall remain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time he is visible to the adversary while he is engaged in military deployment preceding the launching of an attack in which he is to participate.” (Protocol Additional to the Geneva Convention (I))
- Levée en masse (“total mobilization”):
- This exception to the distinction between civilians and the armed forces is from the Hague Convention of 1907 (IV). It reads:
“The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having time to organize themselves in accordance to Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.”
- There is a long tradition of using mercenaries in armed conflicts, and traditionally they have been treated no better or worse than regular soldiers including granting them POW-status, if they were captured. However, in the Geneva Protocal Additional (I) of 1977 it is clearly stated that soldiers participating out of economic interest and who are neither a citizen of any of the belligerents nor a member of any of the belligerents armed forces should be denied status as POW. Mercenaries thus have only the fundamental rights guaranteed by article 75 (that is, basic human rights).
- A spy is a person “acting clandestinely or on false pretences”. Espionage is not per se against the laws of war, but the humanitarian law allows for nations to try spies within their own national legal systems. Spies are usually denied POW-status, but if the spy manages to return to their own armed forces before capture the spy cannot be denied POW-status. Spies must be caught red-handed.
- As per the Vienna Convention on Diplomatic Relations, diplomats can under no circumstances be withheld.
- Chaplains and Medics:
- These are a special case. They are not considered combatants, even if they are in uniform and work within the chain of command of a belligerent, and neither are considered a POW if detained by the enemy. Instead they are allowed to continue their religious or medical duties to their fellow detainees and cannot be commanded to do any other kind of work. In fact, the enemy must provide the necessary degree of freedom and the equipment needed by the medic or chaplain in order for them to fulfill their duties.
(This is part of my personal quest (study) on international and humanitarian law)