Practice Relating to Rule 3. Definition of Combatants
Note: For practice concerning the conditions for entitlement to prisoner-of-war status, see Rule 106.
Quick navigation
Hague Regulations (1899)
Article 3 of the 1899 Hague Regulations provides: “The armed forces of the belligerent parties may consist of combatants and non-combatants.” 
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 3.

Hague Regulations (1907)
Article 3 of the 1907 Hague Regulations provides: “The armed forces of the belligerent parties may consist of combatants and non-combatants.” 
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 3.

Additional Protocol I
Article 43(2) of the 1977 Additional Protocol I provides:
Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 43(2). Article 43 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 111.

Back to top
No data.
Back to top
Argentina
Argentina’s Law of War Manual (1989) states that all members of the armed forces are combatants, except for medical and religious personnel. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.07(2).

Australia
Australia’s Defence Force Manual (1994) provides: “Combatants comprise all organised armed forces, groups and units (except medical service and religious personnel).” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 512; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, Glossary, p. xxi.

Australia’s LOAC Manual (2006) states:
Combatants comprise all organised armed forces, groups and units (except medical service and religious personnel) which are under the command of a party to a conflict and are subject to an internal disciplinary system, which enforces compliance with the LOAC. Where persons are not members of armed forces, they must also have a fixed distinctive sign recognisable at a distance and carry arms openly. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.12.

Belgium
Belgium’s Law of War Manual (1983) defines combatants as all members of organized armed forces, except medical and religious personnel. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, pp. 20–21.

Benin
Benin’s Military Manual (1995) states: “Members of the armed forces (except medical and religious personnel) are combatants.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule I, p. 12.

Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that the term “[c]ombatant must be understood as [referring to] any member of the armed forces, with the exception of medical and religious personnel”. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 9; see also Part I bis, pp. 16, 31 and 52.

Cameroon
According to Cameroon’s Instructor’s Manual (1992), “Each member of the armed forces, except religious and medical personnel, is a combatant.” 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 17; see also p. 77.

Cameroon
Cameroon’s Instructor’s Manual (2006) states: “All members of the Armed Forces are combatants, except religious and medical personnel.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 92, § 352.10; see also p. 134, § 412.10 and p. 210, § 511.

Members of the armed forces of a party to a conflict, members of militias, volunteer corps and resistance movements belonging to a party to a conflict, and civilians who spontaneously take up arms in a levée en masse generally qualify as combatants.
Members of the regular armed forces who profess allegiance to a government or an authority not recognized by the Power to which they belong, as well as members of the armed forces of a third State who are at the disposal of a State party to a conflict, are equally considered combatants. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 21, § 111; see also p. 41, § 211, p. 67, § 301, p. 111, § 381, p. 153, § 441 and p. 179, § 491.A.

Precise rules stipulate conditions for the identification of combatants:
- the wearing of the uniform of the State party to the conflict;
- carrying arms openly when the person is visible to the adversary;
- the presence of an identifiable commander at the head of troops;
- participation in an attack or in a deployment preparatory to a military operation;
- wearing fixed distinctive signs recognizable at a distance. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 21, § 113.

Cameroon
Cameroon’s Disciplinary Regulations (2007) states:
Article 30: Definition
Members of armed forces in organized units, franc-tireurs detached from regular units, commando detachments and isolated saboteurs, as well as the members of voluntary militias, self-defence groups and organized resistance formations, are lawful combatants.
It is sufficient that those units, organizations or formations have a designated commander, that their members wear a distinctive sign, notably on their clothing, that they carry their arms openly and that they respect the laws and customs of war. 
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 30.

Canada
Canada’s LOAC Manual (1999) states: “As a general rule, the term ‘combatant’ includes any member of the armed forces, except medical and religious personnel.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3-1, § 6.

Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”: “As a general rule, the term ‘combatant’ includes any member of the armed forces, except medical and religious personnel.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 304.

In its glossary, the manual states: “Combatants are persons who are legally entitled, under the LOAC, to take a direct part in an armed conflict and, in particular, to engage in hostilities. Combatants who are captured by the enemy are prisoners of war.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, Glossary, p. GL-3.

The manual further states:
Unlawful combatants are legitimate targets for such time as they take a direct part in hostilities. Unlawful combatants include:
a. civilians (except those who are lawful combatants because they are participating in levée en masse);
b. mercenaries; and
c. spies. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 410.1.

Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 1 (Basic and team leader instruction): “Members of the armed forces (other than medical and religious personnel) are combatants. They are identified by their uniforms or by a recognizable, fixed distinctive sign or, at least, by the fact of carrying arms openly (members of armed forces, militias).” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 1: Formation élémentaire toutes armés (FETA), formation commune de base (FCB), certificat d’aptitude technique No. 1 (Chef d’équipe), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter II, Section I, § 1.

The Central African Republic’s Disciplinary Regulations (2009) states:
In accordance with the international conventions signed or approved by the Central African Government, it is stipulated that during combat servicemen must:
- consider members of the Armed Forces or of volunteer militias, including organized resistance [movements], as “combatants” as long as these formations have a designated commander, that its members display a distinctive sign, carry arms openly and respect the laws and customs of war.  
Central African Republic, Décret 09.411 portant réglement de discipline générale dans les Armées, Ministre de la Défense Nationale, des Anciens Combattants, des Victimes de Guerre, du Désarmement et de la Restructuration de l’Armée, 10 December 2009, Article 12(10).

Chad
Chad’s Instructor’s Manual (2006) states:
Members of the armed forces and security forces of a country in conflict, members of militias, voluntary corps and resistance groups in a country in conflict, civilians who spontaneously take up arms during mass uprising are generally considered to be combatants.

Specific conventions establish the conditions for identifying combatants:
- wearing the uniform of the country in conflict;
- openly and visibly carrying weapons so that they can be seen by the enemy;
- the presence of identifiable leaders at the head of the troops;
- participation in an attack or deployment in preparation for a military operation;
- bearing distinctive signs that can be recognized from a distance. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 42; see also pp. 21, 36 and 55.

Colombia
Colombia’s Instructors’ Manual (1999) defines the term combatant as “any member of the Armed Forces, except medical and religious personnel. As members of Armed Forces, the law of war allows combatants to participate directly in an armed conflict on behalf of a belligerent State or of one of the parties to the conflict.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 16.

Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
I.1. Combatants
The following are considered as combatants:
- members of armed forces even if they profess allegiance to a non-recognized government,
- members of rebel movements,
- members of militias,
- members of armed resistance movements,
- members of the armed forces of a third country put at the disposal of a country in conflict.

Signs enabling a combatant to be identified:
- wearing a uniform,
- carrying a weapon openly,
- the presence of identifiable leaders commanding the troops,
- participation in an attack or in a deployment preparatory to a military operation,
- wearing fixed distinctive signs recognizable at a distance. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 17.

In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
I.2. Combatants
By combatant, one means:
- every member of the armed forces, male or female, with the exception of medical and religious personnel,
- members of militias, volunteer corps, organized resistance movements belonging to a party to the conflict and operating in or outside their own territory.
Only combatants may take an active part in hostilities, i.e. fight or be the object of an attack by the enemy. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 28.

In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
I. Combatant status
I.1. General
The term “combatant” is found in numerous treaties on the Law of Armed Conflicts (LOAC). It is important to know who is a combatant because:
- combatants are entitled to take a direct part in an armed conflict and, in particular, to engage in hostilities;
- combatants are lawful military objectives;

For heads of division and company commanders, the enemy’s combatant status comes into play when deciding on the selection of objectives. The commander must direct military operations against lawful objectives. Consequently, the commander, as well as each soldier under his command, must know who is a combatant. …
I.2. Combatant
1.2.1. Definition
As a general rule, the term “combatant” comprises every member of the armed forces, with the exception of medical and religious personnel.

1.4 I.4. Unlawful combatants
“Unlawful” combatants are those who take a direct part in hostilities without having the legal right to do so according to the LOAC.

II.1.5. Unlawful combatants

Unlawful combatants comprise:
- civilians (except for those who are lawful combatants because they participate in a levée en masse);
- mercenaries;
- spies. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 17, 23 and 26–27.

Croatia
Croatia’s LOAC Compendium (1991) considers that all members of the armed forces are combatants, except permanent medical or religious personnel. 
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 6.

Croatia’s Commanders’ Manual (1992) states: “Members of the armed forces (other than medical and religious personnel) are combatants.” 
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, p. 3.

Djibouti
Djibouti’s Disciplinary Regulations (1982) states:
[S]oldiers in combat must consider the following to be lawful combatants: members of the armed forces and organized units, franc-tireurs detached from their regular units, commando detachments and isolated saboteurs and members of voluntary militias, self-defence groups and organized resistance movements.
In order for these categories [of persons] to be considered lawful combatants, their units, organizations and groups must have a designated commander and their members must display a distinctive sign, especially on their clothing, carry their arms openly and respect the laws and customs of war. 
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces armées, Article 30(1).

Dominican Republic
The Dominican Republic’s Military Manual (1980) states:
All persons participating in military operations or activities are considered combatants [and proper targets for attack]. Those who do not participate in such actions are non-combatants. In addition to civilians, medical personnel, chaplains … are included in the category of non-combatants. 
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 3.

Ecuador
According to Ecuador’s Naval Manual (1989), members of the armed forces are combatants, except medical personnel and chaplains. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, §§ 5.3 and 11.1.

France
France’s LOAC Summary Note (1992) and LOAC Teaching Note (2000) provide that all members of the armed forces, other than medical and religious personnel, are combatants. 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 1.2; Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 2.

France’s LOAC Manual (2001) defines combatants with reference to Article 4(A) of the 1949 Geneva Convention III. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 39; see also pp. 70–71.

Under the heading “Guerrilla”, the manual restates, inter alia, Article 4(A)(2) of the 1949 Geneva Convention III and provides: “Permitted to fight and to obtain the status of prisoner of war in the case of capture are resistance fighters, militias and volunteer corps who are not part of the regular army but who respond to the definition [therein].” 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, pp. 70–71.

Inherited from World War II, this term refers to activities carried out against occupation forces and inspired by guerrilla techniques. The “resistance fighters” have combatant status on condition they respect the provisions of Article 4 of the Geneva Convention III of 12 August 1949 relative to the Treatment of Prisoners of War, above. At the moment when they act, and whatever the circumstances, the members of a resistance movement must take all necessary measures to distinguish themselves clearly from the civilian population. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, pp. 110–111.

Germany
Germany’s Military Manual (1992) states:
The armed forces of a party to a conflict consist of combatants and non-combatants. Combatants are persons who may take a direct part in hostilities, i.e. participate in the use of a weapon or a weapon-system in an indispensable function. The other members of the armed forces are non-combatants. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 301.

Persons who are members of the armed forces but … do not have any combat mission, such as judges, government officials and blue-collar workers, are non-combatants … Members of the medical service and religious personnel (chaplains) attached to the armed forces are also non-combatants.  
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, §§ 313–314.

Germany’s Soldiers’ Manual (2006) states: “Combatants are all persons who may directly participate in combat operations, e.g. the members of the armed forces as well as militias and volunteer corps forming part of the armed forces.” 
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten - Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten - Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p. 2.

Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides:
Members of the armed forces should:
(a) Consider as “lawful combatants” those who belong to the armed forces of the enemy or to the national guard (the organized resistance included), provided that the personnel of the above is organized in units, is under the command of a certain leader, has a distinctive sign, carries arms openly and respects the laws and customs of war. Persons who do not fulfil the above conditions should not be considered as “lawful combatants”. 
Greece, Hellenic Territorial Army Regulation of Internal Service Code, Presidential Decree 130/1984 (Military Regulation 20-1), as amended, Article 14(a).

Hungary
According to Hungary’s Military Manual (1992), combatants are “any member of the armed forces except permanent medical and religious personnel”. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 17.

India
India’s Army Training Note (1995) defines the term “terrorist” as:
a person who indulges in wanton killing of persons or involves in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to putting the public or any section of the public in fear, or affecting adversely the harmony between different religious, social, linguistic groups or the sovereignty and integrity of a nation. 
India, Army Training Note, Chief of Staff, Army Training Command, Ministry of Defence, Government of India, 1995, p. 4/16, § 35.

Indonesia
Indonesia’s Air Force Manual (1990) states that combatants are:
a. Regular troops, i.e. members of the armed forces, consisting of:
1. voluntary troops;
2. compulsory military; and
3. foreigners, including citizens of neutral States, who belong to a belligerent’s armed forces.
b. Militias, i.e. volunteer groups or persons who, being a part of the armed forces, should be considered as regular troops with the status of legal combatant. 
Indonesia, The Basics of International Humanitarian Law in Air Warfare, Indonesian Air Force, 1990, § 21.

The manual also states that a person who is not a member of the armed forces nor a member of a militia but participates in the hostilities is an unlawful combatant. 
Indonesia, The Basics of International Humanitarian Law in Air Warfare, Indonesian Air Force, 1990, §§ 22–23.

Ireland
Ireland’s Basic LOAC Guide (2005) states: “Combatants are members of the armed forces other than medical and religious personnel.” 
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 4.

Israel
According to Israel’s Manual on the Laws of War (1998), legal combatants are “soldiers serving in the army (regular and reserve) or in well-ordered militia forces (e.g. the SLA or the State National Guards in the United States)”. 
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, p. 47.

Italy
Italy’s IHL Manual (1991) defines “lawful combatants” as:
a. members of the Armed Forces;
b. members of militia, of volunteer corps, of resistance movements, who belong to a Party to the conflict, operating outside or inside their own territory, even if this territory is occupied, provided they fulfil the following conditions:
1. being under a Head responsible for his own subordinates;
2. wear a uniform or a fixed distinctive sign recognisable from a distance;
3. carry arms openly;
4. abide by the laws and customs of war. 
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 4.

Italy’s LOAC Elementary Rules Manual (1991) states: “All members of the Armed Forces (except medical and religious personnel) are combatants.” 
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 2.

Italy’s Combatant’s Manual (1998) states: “Anyone who takes part in military operations or activities is considered a combatant.” 
Italy, Manuale del Combattente, SME 1000/A/2, Stato Maggiore Esercito/Reparto Impiego delle Forze, Ufficio Dottrina, Addestramento e Regolamenti, 1998, § 250.

Kenya
Kenya’s LOAC Manual (1997) states that the term combatant means “any member of the armed forces except medical personnel and religious personnel. As a member of the armed forces, he is permitted by the law of war to take a direct part in an armed conflict on behalf of a belligerent State or Party to the conflict.” 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 8.

Medical and religious personnel have a special status and are classified as non-combatants … Civilians accompanying the armed forces such as war correspondents, supply contractors and members of the labour units or of welfare services are not combatants. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 9.

Madagascar
Madagascar’s Military Manual (1994) defines combatants as “members of the Armed Forces (other than medical and religious personnel)”. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-O, § 2; see also Fiche No. 2-SO, § A.

Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention III, states: “The general principle is that any member of the armed forces of a party to the conflict is a combatant”. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 138.

375. Status of lawful combatants. The law of war only authorizes certain groups of people to engage in military operations, and these operations may only be directed against certain groups of people. The legitimate agents and objects of acts of war are included under the term lawful belligerents or combatants.
376. According to article 2 of the [1907 Hague] Regulations concerning the Laws and Customs of War on Land, the following categories are considered combatants:
A. Militia and volunteer corps fulfilling the following conditions:
B. Those taking part in a levée en masse, which occurs when:
a. the inhabitants of a territory which has not been occupied, on the approach of the enemy, spontaneously take up arms to resist the invading troops;
b. they are regarded as “belligerents” if they carry arms openly and respect the law of war.
377. Under the First Geneva Convention of 12 August 1949, the following are considered combatants:
A. Organized resistance movements, even if the territory is occupied, provided that they fulfil the following conditions:
B. Members of the regular armed forces of a government. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, §§ 375–377(A)–(B).

Mexico’s IHL Guidelines (2009) states: “Combatants are the members of the armed forces of a party to the conflict and the members of militias and volunteer corps forming part of such armed forces.” 
Mexico, Cartilla de Derecho Internacional Humanitario, Ministry of National Defence, 2009, § 3.
(emphasis in original)
Netherlands
The Military Manual (1993) of the Netherlands states: “The members of the armed forces have the status of combatant, except medical and religious personnel.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. III-1; see also Handboek Militair, Ministerie van Defensie, 1995, pp. 7–36 and 7–39.

The Military Manual (2005) of the Netherlands states:
0302. Combatants
Members of armed forces have combatant status, unless they belong to the medical or religious personnel. The term “combatant” has a wider meaning in the humanitarian law of war. Combatants are those entitled to participate directly in hostilities. “Participate directly in hostilities” comprises more than participation in battle: it also covers direct support of military operations.
...
0305. Every armed force has people working for it who do not bear arms. Within the rules of the humanitarian law of war, a State is entitled to decide which members of its armed forces to designate as combatants and which as non-combatants. The Netherlands has done this in relation to civilian personnel who work in defence. Except for surveillance personnel, these staff are unarmed. Nevertheless, some of them are designated as combatants. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0302 and 0305.

New Zealand
New Zealand’s Military Manual (1992) states: “Normally only members of a belligerent State’s armed forces enjoy the status of combatants.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 802(1).

Peru
Peru’s IHL Manual (2004) defines “combatants” as “members of the armed forces of a party to the conflict”. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, Chapter 9, Glossary of Terms.

Peru’s IHL and Human Rights Manual (2010) states: “Members of the armed forces of a Party to the conflict are combatants.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 400.

Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) notes in its glossary: “Combatant – means any member of the armed forces except medical personnel and religious personnel.” 
Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 68, Glossary.

Republic of Korea
The Republic of Korea’s Operational Law Manual (1996) states that members of the regular army, reserve forces, militia corps and combatant police are considered combatants, including persons who are not participating in combat but supporting military operations, except medical personnel and chaplains. 
Republic of Korea, Operational Law Manual, 1996, p. 43.

Russian Federation
The Russian Federation’s Military Manual (1990) defines combatants with reference to Article 43(2) of the 1977 Additional Protocol I. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, §§ 12–13.

The Russian Federation’s Regulations on the Application of IHL (2001) states:
combatants are members of the armed forces of a party to an armed conflict (excluding military medical and military religious personnel).
Combatants have the right to take a direct part in combat operations. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 1.

Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
A combatant is a member of the armed forces, except religious and medical personnel, or a member of any organised fighting force … In most cases they are distinguished by their uniform or a fixed recognized distinctive sign, or at least by carrying their weapons openly. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 24.
[emphasis in original]
South Africa
South Africa’s LOAC Manual (1996) defines combatants as “any member of the armed forces, except medical personnel and religious personnel”. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 24(a). This manual is also included in Chapter 4 of the Draft Civic Education Manual of 1997.

South Africa’s Revised Civic Education Manual (2004) states:
Combatants. This term refers to any member of the armed forces, except medical personnel and religious personnel. Combatants are usually recognised by the wearing of uniforms or other distinctive marking. They must also be part of an organisation with a clear command structure. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 47(a).
[emphasis in original]
Spain
Spain’s LOAC Manual (1996) defines “lawful combatants” as:
– Members of the Armed Forces of the parties to the conflict, except medical and religious personnel.
– Members of the armed forces of a party not recognised by the other party.
– Members of other militias and other units subject to military discipline, like the Guardia Civil.
– Resistance movements. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 1.3.a.(1).

Spain’s LOAC Manual (2007) defines “lawful combatants” as:
- members of the armed forces of the parties to a conflict, other than medical and religious personnel;
- members of the armed forces of a party to the conflict not recognized by the other party;
- members of other militias or corps subject to military discipline, such as the Civil Guard;
- resistance movements; guerrillas are only considered lawful combatants when they act in occupied territory and carry their arms openly during operations and any movement towards a place from or on which an attack is to be launched;
- inhabitants of a territory who spontaneously take up arms to resist invading forces. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 1.3.a.(1); see also §§ 4.2.b.(1), 5.2.a.(1).(a), 7.3.a.(2) and 7.4.b.

The manual defines “unlawful combatants” as “those considered not to be members of the armed forces and therefore not entitled to protection as combatants, because they do not meet one or more of the requirements specified in [the preceding definition of ‘lawful combatants’]”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 1.4.d.

The manual also states: “The categories of people taking a direct part in the hostilities who are not entitled to combatant status include the employees of private security companies who exceed their duties and carry out actions that are unlawful under international law.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 1.4.e.

Sweden
Sweden’s IHL Manual (1991) defines combatants with reference to Article 43(2) of the 1977 Additional Protocol I. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.3, pp. 34–35.

Togo
Togo’s Military Manual (1996) states: “According to international law, the members of the armed forces of a Party to the conflict, except medical and religious personnel, are combatants.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule I, p. 13.

Ukraine
Ukraine’s IHL Manual (2004) states:
1.2.22. Combatants (those who fight) are members of the armed forces of a Party to an armed conflict (other than medical personnel and chaplains). They have the right to participate directly in hostilities.

1.2.23. “Partisans” means persons who voluntarily fight as a part of organized partisan forces in a territory occupied by an adverse party (or is under the control of a reactionary regime), for the freedom and independence of their homeland.
Partisans are combatants if they are under a command responsible for their conduct, have insignia distinguishing them from the civilian population, carry their arms openly and respect the rules of international humanitarian law.
Fighters for national liberation movements are equal to the regular armed forces of a State, i.e. they are considered as combatants.
1.2.24. Non-combatants (those who do not fight) are members of the armed forces who provide assistance to them but take no direct part in hostilities. These are medical personnel, chaplains, war correspondents and so forth. …
Such persons become combatants in case of their direct participation in hostilities. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, §§ 1.2.22–1.2.24.

United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (1958) states:
A combatant is one who is permitted by the law of armed conflict to take a direct part in an armed conflict on behalf of a belligerent State. Combatant status is very closely related to entitlement to PW status. The following are entitled to combatant status:
a. Members of the organized armed forces.
b. Members of any other militias, volunteer corps or organised resistance movements. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 3, p. 8, § 1.

The UK LOAC Manual (2004) states: “Members of the armed forces of a party to a conflict (other than medical personnel and chaplains) are combatants”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 4.2.

The UK LOAC Manual (2004), as amended in 2010, states:
The expression “combatant” has in the past been used in two senses. Sometimes it has been used to describe any person who actually engages in hostile acts in an armed conflict on behalf of a party to the conflict, whether or not he is permitted to do so. It has also been used to describe only those persons with a right to take a direct part in hostilities. For this reason, it has often been qualified by the use of the adjectives “lawful” or “unlawful”. The use of the words “lawful” or “unlawful” is unhelpful and possibly misleading in view of the status definition of “combatant” in [the 1977] Additional Protocol I, set out in paragraph 4.2 [quoted above]. A person who takes a direct part in hostilities when not entitled to do so does not become a “combatant” under this definition simply by such conduct. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, as amended by Amendment 3, Ministry of Defence, September 2010, § 4.2.1.

United States of America
The US Air Force Pamphlet (1976) defines a combatant as “a direct participant in an armed conflict, traditionally a member of an armed force as specified in Article 4A(1) (2) and (3) [of the 1949 Geneva Convention III]”.  
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 1–2(b).

The US Naval Handbook (1995) states that the term “combatants”
embraces those persons who have the right under international law to participate directly in armed conflict during hostilities. Combatants, therefore, include all members of the regularly organized armed forces of a party to the conflict (except medical personnel, chaplains, civil defense personnel and members of the armed forces who have acquired civil defense status), as well as irregular forces who [fulfil the conditions for being considered armed forces]. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 5.3.

The Report on US Practice (1997) states that the discussion on the status of combatant in the US military manuals is generally consistent with Article 43 of the 1977 Additional Protocol I. 
Report on US Practice, 1997, Chapter 1.1.

The US Manual for Military Commissions (2007) states:
“Lawful enemy combatant” means a person who is:
(A) a member of the regular forces of a State party engaged in hostilities against the United States;
(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 103(14), pp. II-2 and II-3.


“Unlawful Enemy Combatant” means:
(A) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(B) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
(C) “Co-belligerent” means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 103(24), p. II-4.

The US Manual for Military Commissions (2010) defines the term “Privileged Belligerent” as “an individual belonging to one of the eight categories enumerated in Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War [1949 Geneva Convention III]”. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 103 (26), p. II-4.

The US Naval Handbook (2007) states:
5.4.1 Combatants
Combatants are persons engaged in hostilities during an armed conflict. Combatants can be lawful or unlawful. The term “enemy combatant” refers to a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” also includes both “lawful enemy combatants” and “unlawful enemy combatants.”
5.4.1.1 Lawful Enemy Combatants
Lawful enemy combatants include members of the regular armed forces of a State party to the conflict; militia, volunteer corps, and organized resistance movements belonging to a State party to the conflict, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war; and members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power. Lawful combatants are entitled to combatant immunity – that is, they cannot be prosecuted for their lawful military actions prior to capture.
Lawful combatants also include civilians who take part in a levee en masse. A levee en masse is a spontaneous uprising by the citizens of a nonoccupied territory who take up arms to resist an invading force without having time to form themselves into regular armed units. Combatant immunity for a levee en masse ends once the invading forces have occupied the territory.
5.4.1.2 Unlawful Enemy Combatants
Unlawful enemy combatants are persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during armed conflict.
5.4.2 Noncombatants
Noncombatants are those members of the armed forces who do not take direct part in hostilities because of their status as medical personnel and chaplains. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, §§ 5.4.1–5.4.2.

Unlawful combatants who are members of forces or parties declared hostile by [a] competent authority are subject to attack at anytime during hostilities unless they are hors de combat … . 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.2.2.

The US Manual on Detainee Operations (2008) states: “Enemy combatants are personnel engaged in hostilities against the United States or its coalition partners during an armed conflict.” 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. viii.

Detainee Categories

Enemy Combatant. In general, a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” [EC] includes both “lawful enemy combatants” and “unlawful enemy combatants.”
(1) Lawful ECs, who are entitled to protections under the … [1949 Geneva Convention III], include members of the regular armed forces of a state party to the conflict; militia, volunteer corps, and organized resistance movements belonging to a state party to the conflict, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war; and, members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power.
Lawful combatants are EPWs [enemy prisoners of war] upon capture, and are entitled to “combatant immunity” for their lawful pre-capture warlike acts. They may be prosecuted, however, for violations of the law of war. If so prosecuted, they still retain their status as EPWs.
(2) Unlawful ECs are persons not entitled to combatant immunity, who engage in or support acts against the United States or its coalition partners in violation of the laws and customs of war during an armed conflict. For purposes of the war on terrorism, the term unlawful EC is defined to include, but is not limited to, an individual who is or was part of or supporting Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-4–I-5; see also p. GL-3.

Back to top
Rwanda
The Report on the Practice of Rwanda (1997) refers to a statement by Rwanda’s Minister of Defence on 18 August 1997 in which he stated that government troops may only target enemies who carry arms and/or kill people. Hence, the report concludes that in an internal armed conflict combatants are defined as persons who carry arms and/or commit inhumane acts against the population in relation to the hostilities and that the wearing or not of a uniform has no significance in this respect. 
Report on the Practice of Rwanda, 1997, Chapter 1.1, referring to Statement by the Rwandan Minister of Defence, Kigali, 18 August 1997.

United States of America
The US Military Commissions Act (2006), passed by Congress following the US Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 948a. Definitions
In this chapter: (1) UNLAWFUL ENEMY COMBATANT. – (A) The term “unlawful enemy combatant” means –
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
(B) CO-BELLIGERENT. – In this paragraph, the term “co-belligerent”, with respect to the United States, means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.
(2) LAWFUL ENEMY COMBATANT. – The term “lawful enemy combatant” means a person who is –
(A) a member of the regular forces of a State party engaged in hostilities against the United States;
(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.
(3) ALIEN. – The term “alien” means a person who is not a citizen of the United States. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2601, § 948a (1), (2) and (3).

The US Military Commissions Act (2009), which amends Chapter 47A of Title 10 of the United States Code, defines the term “privileged belligerent” as “an individual belonging to one of the eight categories enumerated in Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War [1949 Geneva Convention III]”. 
United States, Military Commissions Act, 2009, § 948a(6).

Zimbabwe
The Report on the Practice of Zimbabwe (1998) asserts that the incorporation of Article 43 of the 1977 Additional Protocol I into national legislation by the 1981 Geneva Conventions Act as amended “is evidence of [Zimbabwe’s] view that [it represents] customary international law”.  
Report on the Practice of Zimbabwe, 1998, Chapter 1.1.

Back to top
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
The term “combatants” has both a generic and a specific meaning under international humanitarian law. In its generic sense, the term refers to persons who belong to the armed forces or irregular armed groups or take part in hostilities and thus do not enjoy the protection against attacks afforded to civilians. In its more specific sense, the term “combatants” is used only within the context of international armed conflicts and in reference to a special status, the “combatant status” that not only implies the right to take part in hostilities and the possibility of being considered a legitimate military objective, but also the ability to confront other combatants or persons taking part in hostilities and the right to receive special treatment when placed hors de combat by surrendering, being captured or wounded – in particular by attaining the status of “prisoner of war”.
This Court states that for purposes of the principle of distinction and its application to internal armed conflicts and the rules which flow from this principle, international humanitarian law refers to the term “combatants” in its generic sense. It is beyond doubt that the term “combatants” in its specific sense as well as related legal statuses such as “prisoner of war” do not apply to internal armed conflicts. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, pp. 80–81.

Germany
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force (ISAF) in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, p. 1.

1.
There is a non-international armed conflict in Afghanistan in the sense of the International Crimes Code (§§ 8 ff VStGB) and of international humanitarian law:

aa)
The international ISAF forces led by NATO are present in the country with the consent of the Afghan government. Therefore, there is an agreement by the State on whose territory the armed conflict is taking place to the ISAF deployment which is valid under international law. Under international law, the conflict must be qualified as non-international despite the participation of international forces because ISAF is fighting on the side of the Afghan State …

d)
The existence of a non-international armed conflict [in Afghanistan] leads to the application of the International Crimes Code and, via Art. 25 GG [Basic Law], of the entire international law of armed conflict. This means that soldiers of the armed forces (Bundeswehr) in the context of the ISAF deployment – in contrast to insurgents – are regular combatants who may not be prosecuted for acts of war which are lawful under international law. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, pp. 41–42 and 45.

The following is to be considered regarding the subjective element of § 11 (1) (3) VStGB [according to which carrying out an attack by military means and definitely anticipating that the attack will cause death or injury to civilians or damage to civilian objects on a scale out of proportion to the concrete and direct overall military advantage anticipated is a war crime in international and non-international armed conflict]:
aa)
Insurgents who continuously take part in the armed conflict, as the Taliban in this case, are not civilians but legitimate military objectives which may be lawfully attacked even outside of ongoing armed hostilities. Art. 50 (1) AP [1977 Additional Protocol] I contains a definition of the term “civilian” for international armed conflicts. Accordingly any person “who does not belong to one of the categories of persons referred to in Art. 4 paragraph A sub-paragraphs (1), (2), (3) and (6) of the [1949 Geneva] Convention III and in Article 43 of this Protocol is a civilian”. Therefore members of armed forces or of organized armed groups (militias and volunteer corps) of a party to the conflict and of a levée en masse are not civilians … In non-international armed conflict fighters of the non-State party are not soldiers akin to members of a State’s armed forces who visibly distinguish themselves through uniform, insignia etc. and whose hierarchy, powers and salaries etc. are regulated by law. Rather, they obtain their status merely by being functionally incorporated into a non-State armed group which has a certain degree of organization. They often have a regular full-time or part-time civilian job (“farmer by day, fighter by night”). Nevertheless they are not considered as civilians under current international law who only assume the role of a fighter during the limited duration of ongoing armed hostilities and constitute a lawful military objective during such time only. If they have functionally joined an organized armed group in a non-international armed conflict as fighters, they are retaining this status as armed fighters until they have recognizably and finally given up this function … The opinion previously expressed in the literature according to which they are to be considered as civilians who may only be attacked during their participation in hostilities … is to be considered as a minority opinion which has not been representative at least since the publication of the Interpretative Guidance of the International Committee of the Red Cross in June 2009 … State practice in non-international armed conflict never reflected this opinion and in addition it is not reconcilable with the principle of distinction which is generally recognized as customary international law …
The fuel tankers had been abducted by an organized group of armed Taliban whose members were thus not civilians. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, pp. 47–48; see also p. 60.

India
In 1975, the Supreme Court of India held that civilian employees of the armed forces are “integral to the armed forces as it is their duty to follow or accompany the armed personnel on active service or in camp or on the march”. They are however “non-combatants”. The Court further stated: “all persons not being members of the armed forces, but attached to or employed with or following the regular army shall be subject to the military law”. 
India, Supreme Court, Nair case, Judgment, 20 November 1975, §§ (b) and (c).

Israel
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
What makes a person a combatant? This category includes, of course, the armed forces. It also includes people who fulfill the following conditions (The Hague Regulations, §1):
“The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs
of war.
…”
Article 13 of The First and Second Geneva Conventions and article 4 of The Third Geneva Convention repeat that wording (compare also article 43 of The First Protocol [1977 Additional Protocol I]). Those conditions are examined in the legal literature, as well as additional conditions which are deduced from the relevant conventions (see DINSTEIN, at p. 39). We need not discuss all of them, as the terrorist organizations from the area, and their members, do not fulfill the conditions for combatants (see GROSS, at p. 75). It will suffice to say that they have no fixed emblem recognizable at a distance, and they do not conduct their operations in accordance with the laws and customs of war. 
Israel, High Court of Justice, Public Committee against Torture in Israel case, Judgment, 14 December 2006, § 24.

United States of America
In the Hamdi case in 2004, involving a US citizen being detained indefinitely as an “enemy combatant”, the US Supreme Court reversed the dismissal of a habeas corpus petition by a lower court, recognized the power of the government to detain “enemy combatants”, but ruled that detainees who are US citizens must have the ability to challenge their detention before a neutral decision-maker. On the matter of the scope of the term “enemy combatant”, the Court stated:
The threshold question before us is whether the Executive has the authority to detain citizens who qualify as “enemy combatants.” There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the “enemy combatant” that it is seeking to detain is an individual who, it alleges, was “part of or supporting forces hostile to the United States or coalition partners” in Afghanistan and who “engaged in an armed conflict against the United States” there … We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized. 
United States, Supreme Court, Hamdi case, Judgment, 28 June 2004.

In the In re Guantánamo Detainee cases in 2005, involving 11 coordinated habeas corpus civil actions brought against the US Government by various detainees being held at the US Naval Base at Guantanamo Bay, Cuba, the US Supreme Court found that “CSRT [Combatant Status Review Tribunal] procedures are unconstitutional for failing to comport with the requirements of due process.” Specifically regarding the CSRT’s reliance on a “Vague and Overly Broad Definition of ‘Enemy Combatant’”, the Court stated:
Although the government has been detaining individuals as “enemy combatants” since the issuance of the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001)] in 2001, it apparently did not formally define the term until the July 7, 2004 Order creating the CSRT. The lack of a formal definition seemed to have troubled at least the plurality of the Supreme Court in Hamdi, but for purposes of resolving the issues in that case, the plurality considered the government’s definition to be an individual who was “‘part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the United States’ there.” 542 U.S. 507, 159 L. Ed. 2d 578, 124 S. Ct. 2633, 2639 (quoting Brief for the Respondents) (emphasis added). …
The definition of “enemy combatant” contained in the Order creating the CSRT is significantly broader than the definition considered in Hamdi. According to the definition currently applied by the government, an “enemy combatant” “shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” July 7, 2004 Order at 1 (emphasis added). Use of the word “includes” indicates that the government interprets the AUMF to permit the indefinite detention of individuals who never committed a belligerent act or who never directly supported hostilities against the U.S. or its allies. 
United States, District Court for the District of Columbia, In re Guantánamo Detainee cases, Judgment, 31 January 2005, pp. 59–60.

David Hicks, an Australian citizen, was captured in Afghanistan in December 2001 and afterwards detained at Guantánamo Bay Naval Base, Cuba. In March 2007, in the Hicks case, the accused became the first person to be tried and convicted under the US Military Commissions Act of 2006. Following a pre-trial agreement struck with the Convening Authority, the accused pleaded guilty to the charge of “providing material support for terrorism”. In April 2007, Hicks returned to Australia to serve the remaining nine months of a suspended seven-year sentence. In the case’s record of trial for the 30 March 2007 hearing, the military judge defined various terms contained in the charge to which the accused had pleaded guilty:
The term “unlawful enemy combatant” as it is used here means a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant including a person who is part of the Taliban, a1 Qaeda, or associated forces; or
A person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006 has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or other competent tribunal established under the authority of the President of the United States or the Secretary of Defense. 
United States, Office of Military Commissions, Hicks case, Record of Trial, 26 and 30 March 2007.

In the Boumediene case in November 2008, which followed the US Supreme Court’s decision of 12 June 2008 that aliens held in Guantánamo and persons designated as enemy combatants on that territory were entitled to the writ of habeas corpus [Boumediene v. Bush, 128 S. Ct. 229 (2008)], the US District Court for the District of Columbia granted a writ of habeas corpus to five of the six Guantánamo petitioners (including Lakhdar Boumediene) and denied the writ to a sixth petitioner (Belkacem Bensayah). The court memorandum order stated:
On August 27, 2008, the Court issued its Case Management Order (“CMO”), setting forth the procedural framework for the litigation of these six detainees’ habeas petitions.

Under the CMO, the Government bears the burden of proving “by a preponderance of the evidence, the lawfulness of the petitioner’s detention.” (CMO at 3.) The Government argues that petitioners are lawfully detained because they are “enemy combatants,” who can be held pursuant to the Authorization for the Use of Military Force [Pub. L. No. 107-40, §§ 1–2, 115 Stat. 224 (18 September 2001)] and the President’s powers as Commander in Chief.
The following definition of “enemy combatant”, governs the proceedings in this case:
An “enemy combatant”, is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Boumediene v. Bush, 2008 WL 4722127, at *2 (Oct. 27, 2008 D.D.C.). [The CMO for this case] Accordingly, the question before this Court is whether the Government has shown by a preponderance of the evidence that each petitioner is being lawfully detained – i.e., that each is an “enemy combatant”, under the definition adopted by this Court. 
United States, District Court for the District of Columbia, Boumediene case, Memorandum Order, 20 November 2008, pp. 6–8.
[footnote in original omitted]
In the Hammamy case in April 2009, the US District Court for the District of Columbia denied a writ of habeas corpus to a petitioner detained at Guantánamo Bay, who had been captured in Pakistan by Pakistani authorities in April 2002 and transferred to US custody. Following court proceedings, conducted largely in camera due to the classified nature of much of the evidence, the memorandum order stated:
On November 28, 2008, the Court issued its Case Management Order (“CMO”) for the case. (Case Management Order, Nov. 28, 2008 …) That order was essentially a duplicate of the earlier CMO issued by the Court in the Boumediene v. Bush case, No. 04-cv-1 166, on August 27, 2008.

Under the CMO, the Government bears the burden of proving the lawfulness of the petitioner’s detention by a preponderance of the evidence. (CMO II.A.) The Government argues that petitioner Hammamy is lawfully detained because he is an “enemy combatant” who can be held pursuant to the Authorization for Use of Military Force [Pub. L. No. 107-40, §§ 1–2, 115 Stat. 224 (18 September 2001)] and the President’s powers as Commander-in-Chief. … The following definition of “enemy combatant,” previously adopted by this Court in the Boumediene cases, governs the proceedings in this case:
An “enemy combatant” is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Boumediene v. Bush, 2008 WL 4722127, at *2 (D.D.C. Oct. 27, 2008). Accordingly, the question before this Court is whether the Government has shown by a preponderance of the evidence that petitioner Hammamy is being lawfully detained, i.e., that he is an “enemy combatant” under the definition adopted by this Court. 
United States, District Court for the District of Columbia, Hammamy case, Memorandum Order, 2 April 2009, pp. 3, 5 and 6.
[footnote in original omitted]
In the Hamlily case in 2009, in which the petitioners challenged the legality of their detention at Guantánamo by seeking writs of habeas corpus, the US District Court for the District of Columbia ruled that the US government’s detention policy is generally consistent with the authority conferred on the US President under the Authorization for Use of Military Force (AUMF), Public Law 107-40, 115 Stat. 224, 18 September 2001, and core law of war principles that govern non-international armed conflicts. The court stated in relation to the background of the case:
On March 13, 2009, in response to a prior order of this Court, the government [Department of Justice] submitted a refinement of its position with respect to its authority to detain those individuals being held at Guantánamo. The government proposed the following “definitional framework”:
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
Resp’ts’ Mem. at 2. [Resp’ts’ Mem. Regarding the Detention Authority Relative to Individuals Held at Guantánamo Bay, In re: Guantánamo Bay Litigation, Misc. No. 08-442 (TFH), 13 March 2009].

To aid its consideration of these and other related issues, the Court held a hearing on April 17, 2009. Less than a week later, Judge Walton issued his opinion in Gherebi v. Obama, Civ. A. No. 04-1164, 2009 WL 1068955 (D.D.C. Apr. 22, 2009). Gherebi concerns the same question at issue here and Judge Walton’s thorough and thoughtful opinion advances this Court’s analysis considerably. He concluded that “the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms ‘substantially supported’ and ‘part of’ are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.” Id. at *24. 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 3 and 5.
[footnotes in original omitted]
Petitioners argue, just as they did in Gherebi, that because they cannot be classified as “combatants” under Article 4(A) of the Third Geneva Convention [1949 Geneva Convention III] or Article 43 of [1977] Additional Protocol I, they must be “civilians” – a classification that means they are not subject to military force (i.e., detention) “unless and for such time as they take a direct part in hostilities.” [Additional Protocol I] arts. 51(1), 51(3) … Putting aside for the moment the restrictive definition of “direct participation” advanced by petitioners, their advocacy of a detention authority based upon the dichotomy between combatants and civilians in traditional international armed conflicts is flawed. To begin with, the U.S. conflict with al Qaeda is a non-international armed conflict; hence, Article 4 and Additional Protocol I do not apply. Moreover, the government no longer seeks to detain petitioners on the basis that they are “enemy combatants.” Indeed, the government’s abandonment of this term is an implicit acknowledgment that “[i]n non-international armed conflict combatant status does not exist. … The treaty authorities that regulate non-international armed conflicts – Common Article 3, Additional Protocol II and the International Committee of the Red Cross’s Commentaries on both – in fact do not “make any reference whatsoever to the term ‘combatant.’” Gherebi, 2009 WL 1068955, at *18. Gherebi correctly observes that “petitioners evidently interpret this lack of protection for ‘combatants’ in non-international armed conflicts to mean that every individual associated with the enemy to any degree in such a conflict must be treated as a civilian.” Id.

This Court agrees that the lack of combatant status in non-international armed conflicts does not, by default, result in civilian status for all, even those who are members of enemy “organizations” like al Qaeda. Moreover, the government’s claimed authority to detain those who were “part of” those organizations is entirely consistent with the law of war principles that govern non-international armed conflicts. Common Article 3, by its very terms, contemplates the “detention” of “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their weapons and those placed hors de combat,” and commands that they be treated “humanely.” Third Geneva Convention, art. 3(1). At a minimum, this restriction establishes that States engaged in non-international armed conflict can detain those who are “part of” enemy armed groups. Gherebi, 2009 WL 1068955, at *19. Similarly, Part IV of Additional Protocol II, in particular Article 13. … Such protections for “civilians” would be superfluous “if every member of the enemy in a non-international armed conflict is a civilian.” Gherebi, 2009 WL 1068955, at *20. The clear implication of Part IV, then, is that Additional Protocol II recognizes a class of individuals who are separate and apart from the “civilian population” – i.e., members of enemy armed groups. Indeed, it makes clear that “[t]hose who belong to armed forces or armed groups may be attacked at any time.” Int’l Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 1453 (Sandoz et al. eds. 1987) (discussing Article 13 of Additional Protocol II). As for the practical application of these principles, historical examples are few and far between. There are, however, several decisions of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) that have recognized that, in a non-international armed conflict, membership in an armed group makes one liable to attack and incapacitation independent of direct participation in hostilities. 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 12–15.
[footnotes in original omitted]
In the Al-Bihani case in January 2010, involving an appeal by a Yemeni citizen held in detention at Guantánamo Bay since 2002 for the denial of a writ of habeas corpus by a district court, the US Court of Appeals for the District of Columbia, affirmed the order of the lower court, stating with regard to the detention of “unlawful enemy combatants”:
The AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001)] authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” AUMF § 2(a). The Supreme Court in Hamdi [Hamdi v. Rumsfeld, 542 U.S. 507] ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. 542 U.S. at 519. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. 2006 MCA sec. 3, § 948a(1). The 2006 MCA authorized the trial of an individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” Id § 948a(1)(A)(i). In 2009, Congress enacted a new version of the MCA with a new definition that authorized the trial of “unprivileged enemy belligerents,” a class of persons that includes those who “purposefully and materially supported hostilities against the United States or its coalition partners.” Military Commissions Act of 2009 (2009 MCA) sec. 1802, §§ 948a(7), 948b(a), 948c, Pub. L. No. 111-84, tit. XVIII, 123 Stat. 2190, 2575- 76. The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government’s detention authority logically covers a category of persons no narrower than is covered by its military commission authority. Detention authority in fact sweeps wider, also extending at least to traditional P.O.W.s, see id § 948a(6), and arguably to other categories of persons. But for this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners. 
United States, Court of Appeals for the District of Columbia Circuit, Al-Bihani case, Judgment, 5 January 2010, pp. 8–9.

Back to top
Argentina
During the War in the South Atlantic, the legal adviser to the combined staff of Argentina’s armed forces reportedly pointed out that due protection had to be granted to combatants “because they were members of the regular forces and, having fallen into enemy hands, were recognized as prisoners of war and were treated accordingly”. 
Carlos Horacio Cerdá, El respeto del derecho humanitario durante el desarrollo del conflicto Armado del Atlántico Sud, Report on the Practice of Argentina, 1997, Chapter 1.1.

The Report on the Practice of Argentina refers to a definition of combatants taken from a dictionary approved by the Ministry of Defence whereby all members of the armed forces who have the right to participate directly in hostilities are combatants. Medical and religious personnel are not to be considered combatants. 
Report on the Practice of Argentina, 1997, Chapter 1.1.

Colombia
In reaction to an article in the press, the Office of the Human Rights Adviser in the Office of the President of Colombia stated:
In a non-international armed conflict, civilians can take up arms and form armed rebel groups, putting themselves outside the laws of the country. They thus become combatants which the State can attack and fight against with perfect legitimacy. As a result, such rebels are criminals and combatants at the same time. 
Colombia, Presidencia de la República de Colombia, Consejería para los Derechos Humanos, Comentarios sobre el artículo publicado en La Prensa por Pablo E. Victoria sobre el Protocolo II, undated, § 5, reprinted in Congressional record concerning the enactment of Law 171 of 16 December 1994.

Colombia’s Defensoría del Pueblo (Ombudsman’s Office), with respect to “convivir”, considered that:
These organizations, nurtured by the national government itself, contribute nothing to the immunity of the civilian population, since they involve citizens in the armed conflict, divesting them of their protected status and making them into legitimate targets of attack … In the view of the Ombudsman’s Office, the operation of the Convivir cooperatives means that civilians participate directly in the armed conflict, thereby becoming combatants. 
Colombia, Defensoría del Pueblo, Cuarto informe anual del defensor del pueblo al congreso de Colombia, Santafé de Bogotá, September 1997, pp. 48–49.

The Report on the Practice of Colombia states:
In Colombia, communal guard and private security services have been created under the name “convivir”. These services take the form of rural security cooperatives composed of individuals whom the State has authorized to bear arms, and who collaborate with the authorities by providing information to the public security forces concerning the activities of the guerrilla organizations. There is a public debate over the question of whether the members of these services should be considered civilians or combatants. 
Report on the Practice of Colombia, 1998, Chapter 1.2.

Denmark
In 2006, in a report on the detention and transfer of persons in Afghanistan in 2002, the Danish Ministry of Defence stated:
[The 1949] Geneva Conventions provide for a central distinction between combatants, who are protected by the Third Geneva Convention, and civilians, who are protected by the Fourth Geneva Convention.
In accordance with the Third Geneva Convention, Article 4A, combatants are understood as:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.


(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;


(b) that of having a fixed distinctive sign recognizable at a distance;


(c) that of carrying arms openly;


(d) that of conducting their operations in accordance with the laws and customs of war.
The combatant concept is also described in Articles 43 and 44 of Additional Protocol I to [the 1949] Geneva Conventions. These provide in particular that persons involved in the armed conflict and are under a conflicting party’s command and a disciplinary system, and (as a group) comply with the rules of war are subject to combatant concept and thus entitled to POW status. 
Denmark, Report on Factual and Legal Matters Relating to Danish Forces’ Detention and Transfer of Persons in Afghanistan in the First Half of 2002, Ministry of Defence, 13 December 2006, p. 3.

Djibouti
In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, under the heading “Terminology”, defined a combatant as “a member of armed forces or of an armed group under the command of a party to the conflictˮ. 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 195.

Germany
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Information on the 33 individuals detained by the German ISAF [International Security Assistance Force] contingent”, Germany’s Federal Government wrote: “Individuals who are participating in the hostilities against ISAF or the Afghan State are not combatants. Therefore they may be criminally prosecuted for their participation in hostilities.” 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Volker Beck (Cologne), Tom Koenigs, Marieluise Beck (Bremen), further Members and the Parliamentary Group DIE LINKE, BT-Drs. 17/2551, 12 July 2010, p. 4.

In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Compensation for the victims of the Kunduz bombardment in the night of 4 September 2009”, Germany’s Federal Government wrote:
5. Based on which criteria and evidence does the Federal Government conclude that a person is to be considered an “enemy fighter” and in which way is the principle of the [1977] Additional Protocol I to the Geneva Conventions, which states that in case of doubt a person is to be considered a civilian, taken into consideration?
In the context of a non-international armed conflict, international humanitarian law permits governmental troops and troops supporting them to use direct military force against civilians … continuously participating in hostilities based on their role and function within the enemy forces. Whether a person fulfils these conditions depends on the circumstances of the individual case. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Christine Buchholz, Sevim Dağdelen, Inge Höger, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 17/3723, 11 November 2010, p. 3.

Iraq
On the basis of a reply by Iraq’s Ministry of Defence to a questionnaire, the Report on the Practice of Iraq considers that whoever joins the armed forces of a belligerent State is a combatant. It adds that this covers individuals of voluntary units, including members of organized resistance movements, who follow a belligerent party, whether their activities take place inside or outside their territory. The report recalls the four conditions laid down in Article 4(A)(2) of the 1949 Geneva Convention III and holds them to be explicit and specific criteria defining a combatant. 
Report on the Practice of Iraq, 1998, Reply by the Iraqi Ministry of Defence to a questionnaire, July 1997, Chapter 1.1.

Japan
The Report on the Practice of Japan states that the Japanese government understands that Japanese Self-Defence Forces (Jieitai) are categorized as armed forces as referred to in Article 4 of the 1949 Geneva Convention III. Therefore, in the event that a member of the Self-Defence Forces becomes a prisoner, he/she should be treated as a prisoner of war under international law. The report specifies that only self-defence officials (Jieikan) who perform duties in the three Self-Defence Forces (ground, marine and air) and hold ranks possess the status of combatants. 
Report on the Practice of Japan, 1998, Chapter 1.1, referring to Statement by a member of the Japanese government in the House of Representatives Cabinet Committee, 30 October 1986.

Jordan
On the basis of an interview with a high-ranking officer, the Report on the Practice of Jordan states:
Any soldier in the armed forces [of] a State is considered a combatant. The medical personnel and chaplains are exempted from this rule. These two categories do not have combatant status and they are not entitled to take part themselves in hostilities even if they are members [of] the armed forces. 
Report on the Practice of Jordan, 1997, Interview with a high-ranking officer of the Jordanian army, Chapter 1.1.

Malaysia
The Report on the Practice of Malaysia states that members of the armed forces may be considered as combatants. It adds that religious and medical personnel are not considered as combatants even though they remain members of the armed forces. 
Report on the Practice of Malaysia, 1997, Answers to additional questions on Chapter 1.1.

Russian Federation
Without expressly mentioning their non-combatant status, the Report on the Practice of the Russian Federation states that members of the armed forces and military units assigned to civil defence organizations should be respected and protected if their activities comply with the relevant provisions of IHL. 
Report on the Practice of the Russian Federation, 1997, Chapter 4.2.

Rwanda
On the basis of replies by Rwandan army officers to a questionnaire, the Report on the Practice of Rwanda states that religious and medical military personnel can neither be considered as combatants, nor as civilians. In case of detention among prisoners of war, they must be afforded special treatment. 
Report on the Practice of Rwanda, 1997, Replies by Rwandan army officers to a questionnaire, Chapter 2.7.

Syrian Arab Republic
On the basis of a statement by the Syrian Minister of Foreign Affairs before the UN General Assembly in 1997, the Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers that the definition of combatants contained in Article 43(2) of the 1977 Additional Protocol I is part of customary international law.  
Report on the Practice of the Syrian Arab Republic, 1997, Chapter 1.1, referring to Statement by the Syrian Minister of Foreign Affairs before the UN General Assembly, 1 October 1997.

United States of America
In March 2003, the US Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, wrote a memorandum to the General Counsel of the Department of Defense which provided a legal analysis governing the military interrogation of alien “unlawful combatants” held outside the United States. The memorandum stated in part:
Historically, nations have been free to treat unlawful combatants as they wish, and in the United States this power has been vested in the President through the Commander-in-Chief Clause. As one commentator has explained, unlawful belligerents are “more often than not treated as war or national criminals liable to be treated at will by the captor. There are almost no regulatory safeguards with respect to them and the captor owes no obligation towards them.” RC. Hingorani, Prisoners of War 18 (1982) (emphasis added). See Ingrid Detter, The Law of War 148 (2d ed. 2000) (“'Unlawful combatants … enjoy no protection under international law”); William Winthrop, Military Law and Precedents 784 (2d ed. 1920) (unlawful belligerents are “[n]ot … within the protection of the laws of war”); A. Berriedale Keith, 2 Wheaton’s Elements of International Law 716 (6th ed. 1929) (“irregular bands of marauders are … not entitled to the protection of the mitigated usages of war as practised by civilized nations”); Oppenheim, 2 International Law, § 254, at 454 (6th ed. 1944) (“'Private individuals who take up arms and commit hostilities against the enemy do not enjoy the privileges of armed forces, and the enemy has, according to a customary rule of International Law, the right to treat such individuals as war criminals”.). The United States Supreme Court has recognized the important distinction between lawful and unlawful combatants. As the Supreme Court unanimously stated 60 years ago, “[b]y universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants.” Ex parte Quirin, 317 U.S. 1, 30–31 (1942) (emphasis added). 
United States, Department of Justice, Office of Legal Counsel, John C. Yoo, Deputy Assistant Attorney General, Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Military Interrogation of Alien Unlawful Enemy Combatants Held Outside the United States, 14 March 2003.

Uruguay
The Report on the Practice of Uruguay interprets the definition of military personnel contained in Article 63 of the 1943 Military Penal Code as amended, i.e. all persons possessing the legal status governed by the Military or Naval Organizational Laws, as implying that military personnel are combatants. 
Report on the Practice of Uruguay, 1997, Chapter 1.1.

Zimbabwe
The Report on the Practice of Zimbabwe considers that the definition of combatants in Article 43(2) of the 1977 Additional Protocol I is regarded as customary by Zimbabwe in the context of an international armed conflict. 
Report on the Practice of Zimbabwe, 1998, Chapter 1.1.

Back to top
UN Commission on Human Rights (Special Rapporteur)
In 1985, in a report on the situation of human rights in Afghanistan, the Special Rapporteur of the UN Commission on Human Rights recommended that “members of all forces engaged in the conflict, those of Governments as well as of the opposition, should be recognized as combatants within the framework of international humanitarian law”. 
UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in Afghanistan, Report, UN Doc. E/CN.4/1985/21, 19 February 1985, § 192.

Back to top
No data.
Back to top
No data.
Back to top
International Criminal Tribunal for the former Yugoslavia
In its Judgment on appeal in the Tadić case in 1999, the ICTY Appeals Chamber recalled Article 4(A)(1) and (2) of the 1949 Geneva Convention III and noted that this provision “is primarily directed toward establishing the requirements for the status of lawful combatants”. 
ICTY, Tadić case, Judgment on Appeal, 15 July 1999, § 92.

In its Judgment in the Kordić and Čerkez case in 2004, the ICTY Appeals Chamber stated:
Particular attention has to be paid to the situation of members of a Territorial Defence (TO) and as to whether they are to be considered as combatants at all times during the conflict or only when they directly take part in hostilities, that is, when they participate in acts of war which by nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy's armed forces … [T]he Appeals Chamber considers that members of the armed forces resting in their homes in the area of the conflict, as well as members of the TO residing in their homes, remain combatants whether or not they are in combat, or for the time being armed. 
ICTY, Kordić and Čerkez case, Judgment on Appeal, 17 December 2004, § 51.

Back to top
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “combatant” means any member of the armed forces, except medical personnel and religious personnel. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 47.

Back to top
No data.