Chapter

Recueil

Combatant and prisoner of war status

M.H.F. Clarke, T. Glynn, A.P.V. Rogers

Armed conflict and the new law. Vol. I : Armed conflict and the new law : aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention

London : British Institute of international and comparative law, 1989

p. 107-135

English

The author of this chapter considers the evolution of the combatant/non-combatant dichotomy in light of the adoption of Additional Protocol I to the 1977 Geneva Conventions. The author notes that although the distinction between the traditional categories of combatant has become increasingly blurred on the ground, Additional Protocol I reaffirms the importance of maintaining the categorical distinction. The author reviews the Protocol’s discussion of combatant status, including pre-requisites for the recognition of an armed force, and loss of combatant status. He further addresses the rules of distinction articulated in the Protocol, which are held to supersede the principles articulated in Geneva Convention III and the Hague Rules. The author argues that although there are special exceptions to the rule of distinction, these exceptions should be used sparingly, to avoid exacerbating the difficulties in distinguishing combatants and non-combatants. The author concludes by noting that persons who participate in armed conflict unlawfully, such as non-combatants who take up arms, or combatants who have lost their protected status, are liable to face trial under international law. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]

• Armed conflict and the new law. Vol. I : Armed conflict and the new law : aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention / ed. by Michael A. Meyer