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Could terrorists and insurgents be considered unlawful combatants?

In such a case would the Geneva Conventions (even the third convention) not protect them?

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    Question needs a little more clarity. Unlawful combatant is only a definition that apply in USA and I suspect the question may want to ask if the could be considered civilians (if it applies to the rest of the world). May 28, 2023 at 7:57

3 Answers 3

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There are several different conventions relevant here. Some of them were explicitly written to cover not just the the regular armed forces of countries which recognize each other, but also any military force which complies with the usages of war.

A group of insurgents which

  • has a command structure,
  • carries weapons openly,
  • wears a distinctive insignia recognizable at a distance (a colored bandanna should do, if they all wear it),
  • follows the laws of war

would be considered lawful combatants. Insurgents may or may not meet the requirements. Classic terrorist likely do not meet the criteria, but in recent decades the term 'terrorist' has been misapplied often enough that it has become almost meaningless unless a definition is specified.

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  • doesn't the third Geneva convention also apply to parties of a conflict not of an international charecter ?
    – user45449
    May 30, 2023 at 23:09
  • @swarahan, yes, and I don't think I contradicted that. The key here is that the forces fight according to the rules of war, which 'classic' terrorist forces don't.
    – o.m.
    May 31, 2023 at 4:45
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The Geneva Convention is an international treaty that (until the W. Bush administration's questionable assertions) only applies to war between recognized sovereign nations. Domestic terrorists and insurrectionists are neither international actors nor sovereign entities, and thus don't fall under its purview.

The only circumstance under which the Convention would naturally apply (i.e., without sketchy, stretched legal arguments) is if a foreign nation engaged in formal conflict had domestic partisans carrying out attacks within enemy territory: e.g., the Russian partisans who attacked in Belogrod in the current Ukraine conflict. Such partisans might be considered lawful or unlawful combatants, depending on their connection and interactions with the foreign state.

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  • "The Geneva Convention is an international treaty" Several, actually "(until the W. Bush administration's questionable assertions)" Did Bush assert that it did apply to more than just recognized sovereign nations? "only applies to war between recognized sovereign nations." Cite? "if a foreign nation .. domestic partisans". "Foreign" and "domestic" are defined only relative to a particular nation. They are meaningless in this context. May 29, 2023 at 2:18
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    @Acccumulation: (1) It's been a while, but if I remember correctly the W. Bush administration argued that terrorist activity could be an act of warfare by states that 'sponsored' the terrorists (thus justifying the invasion of Afghanistan), but that terrorists themselves should not be considered lawful combatants (thus allowing black sites, Extraordinary rendition, enhanced interrogation, and etc. (2) It doesn't matter what Bush asserted, read article 2 of the Convention. (3) don't quibble, you know what I mean. May 29, 2023 at 4:05
  • If I recall, the Geneva Convention is designed around the principle of reciprocity. If England treats German prisoners humanely, Germany would be obliged to treat England's prisoners likewise, and vice versa. If England were to start summarily executing German prisoners, it would forfeit any expectation that Germany refrain from summarily executing English prisoners.
    – supercat
    May 29, 2023 at 19:06
  • @supercat: That's the nature of a treaty: they are international agreements, not law. May 29, 2023 at 19:08
  • What is a causus belli and what is covered by the Conventions are two separate issues. I don't know what "It doesn't matter what Bush asserted, read article 2 of the Convention." is referring to; you're the one who brought up Bush. If that's meant as a cite, it's a rather poor one. And I'm not quibbling; you flat-out are using terms incoherently. May 29, 2023 at 23:42
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Domestic terrorists and insurgents are usually not treated as prisoners of war but as criminals.

In countries that are governed by the rule of law, being considered a (alleged) criminal instead of a POW gives people less rights in some regards (remaining in prison even when the conflict is over, possibly death penalty) while more rights in others (can't be held indefinitely without a trial, right to legal representation). So it's not that obvious in every case which legal status would be preferable.

In more authoritarian countries, alleged terrorists and insurrectionists often don't receive the rights granted to either POWs or defendants in criminal trials.

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  • doesn't the third Geneva convention also apply to parties to a conflict of not an international charecter ?
    – user45449
    May 30, 2023 at 23:08

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