Infantrymen do not care that the person hiding amongst the civilian population plotting to kill them is labeled an unlawful belligerent
, unlawful combatant, terrorist, or a lawful guerrilla fighter.
citizens when noncitizenship, rather than being a proxy for membership in the armed forces of the enemy, simply means that one is merely an unlawful belligerent
rather than being a traitor as well--hardly a reason to be treated more harshly.
While it is impossible to point to the first modern commission, during the Reformation in Europe in the early seventeenth century, at least one commander sought an alternate method for resolving the status of the unlawful belligerent
, (10) Gustavus Adolphus is often hailed as the father of modern warfare, (11) As the King of Sweden and the Field Commander of Swedish forces during the Thirty Years War (1618-1648), he introduced myriad new technological and training techniques.
When an unlawful belligerent
is captured on the battlefield, he might be questioned more searchingly than would be allowed of lawful combatants in interstate warfare who don't want to answer questions, but he is still protected against criminal abuse by the customary rules of war.
Therefore, to subject persons to trial by military commission who do not meet the exception carved out by the Supreme Court in ex parte Quirin (55) for unlawful belligerents
, to the extent such persons enjoy constitutional protections, would likely raise significant constitutional questions.
establishes that unlawful belligerents
have a right to challenge their detention in the federal court system.
However, under Quirin, for the perpetrators of these assaults to have the status of unlawful belligerents
, and thus be subject to trial by military commissions, the acts must have been committed "in time of war.
Our government, by thus defining lawful belligerents [from The Hague Convention of 1909] entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents
not entitled to that privilege, including those, though combatants, who do not wear `fixed or distinctive emblems.
The first type of unlawful belligerents
includes spies, saboteurs and mercenaries.
Therefore, rules applicable to the trials of unlawful belligerents
depend on whether the person charged is considered to be a civilian or whether a separate standard, found outside of the Geneva Conventions, applies.
Contents Background Current Status Critics' Views Applicable Law The Law of War Characterizing the Conflict Authority to Detain during War Prisoners of War Civilian Detainees Unlawful Belligerents
Interpretation of GPW Article 4 GPW Art.
Some observers believe they can only be charged as common criminals and not as unlawful belligerents