Should unlawful combatants be considered as prisoners of war when captured?

Abstract

Upon being captured or held captive, an enemy combatant is subjected to ‘POW’ status and hence enjoys certain rights and protections based on the Geneva Conventions. Even throughout the period the combatant is in prison awaiting trial, he/she is to receive humane treatment from the State or belligerent party which has captured him/her as a suspect during the war. However, a complication arises with the differentiation of the term ‘enemy combatant’, which applies to both ‘lawful’ and ‘unlawful combatants’. While lawful combatants are automatically considered to receive ‘prisoners of war’ status regarding unlawful combatants, giving them a similar classification is frowned upon. As a result, the captured combatants are exposed to not receiving any rights that a POW may receive. The term itself has no official existence in the Geneva Conventions documents but is often used in other writings and has become a matter of debate. Unfortunately, the expression to address the ones who have taken part in an armed conflict illegally has made them vulnerable to cruel punishments and inhuman treatment while in the custody of the enemy. The question is, should that be the case that a person who has been captured during wartime and is suspected or proven to be taking part in hostile activity not be considered a POW or at least receive proper protection just because the Geneva Conventions do not mention the term in particular? This research paper discusses the discrimination made between lawful and unlawful combatants.