Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?

Abstract

The growing impact of terrorist acts in the past few years has lead to dramatic changes in the internal laws of the growing number of States that suffer from terrorism, but has also lead to various attempts to adapt international law - more specifically, the International Laws of War - to the new situation or threat, as many perceive it. The Laws of War, like most areas of Public International Law, deal with the relations between nations, while hardly dealing with non-governmental entities like terrorist organisations or the individual terrorist, thereby creating an apparent legal “loophole”. One of the solutions found by States in order to deal, legally, with terrorists, was by defining them “unlawful combatants”.This essay tries to examine the development of the term “unlawful combatant”, by examining some complications that might occur from the use of the term “unlawful combatant” as an intermediate, new status in international law. By using it as a new status. States try to exclude terrorists from finding protection under the Geneva Conventions, which are intended to safeguard various individuals during armed conflicts. After examining the term “unlawful combatant”, both from an historical and legal aspect, this essay will attempt to show that the existing Laws of War, which acknowledge only two statuses – the ‘civilian’ and the ‘combatant’ – provide a satisfactory solution to the problem of terrorism in its non-governmental sense. After exploring recent policies and legal developments in Israel and the Unites States, countries that use the term “unlawful combatant”, this essay will criticise the ambiguity of these definitions, and point out future problems that might arise from this ambiguity during armed conflicts.