The Oxford handbook of international law in armed conflict
Oxford : Oxford University Press, 2014
One of the most debated subjects in international humanitarian law (IHL) over the years has been the legal situation of "unlawful combatants". In legal writing it has been addressed in some detail after the adoption of the Geneva Conventions of 1949 and then prior to the adoption of the 1977 Additional Protocols to the Geneva Conventions. The debate emerged again with some intensity following the US-led military campaign in Afghanistan, which started in 2001. Different understandings have been expressed and thus different approaches suggested with regard to the legal framework applicable to the possible detainability and targetability of "unlawful combatants". It was asserted in certain circles that "unlawful combatants" do not have any protection whatsoever under IHL, or that they are a category of persons outside the scope of either the Third Geneva Convention or the Fourth Geneva Convention of 1949. Many others opposed these assertions vehemently. While the term has been used earlier, this contribution will look at the time after the adoption of the Geneva Conventions as these treaties and subsequent treaties — in particular the 1977 Additional Protocols to the Geneva Conventions — as well as customary international law set the legal framework for contemporary armed conflicts. Prior to the Geneva Conventions of 1949 the treatment of unlawful combatants was governed through the Martens’ clause. At the time of the two World Wars, in international practice, unlawful combatants were dealt with harshly, even allowing them to be shot after capture.