They are soldiers when you have to acknowledge it and criminals when you can get away with calling them that.
Not quite.
The Geneva Conventions only defines the difference between “Prisoners of War” and “Civilians.” It doesn’t use the words ‘soldiers’ or criminals, and in fact it doesn’t even say ‘lawful’ or ‘unlawful’ combatants. The goal of the convention was to reduce ambiguity, establish responsibility, and agree upon rules for the fair treatment of state-sponsored combatants. Terms like ‘lawful combatant’ and ‘unlawful combatant’ grew up around the Geneva Convention through common use and legislation such as the Military Commissions Act of 2006.
So what does the Geneva Convention say? It defines ‘Prisoners of War’ as:
…and a couple of other things that aren’t pertinent to the conversation.
If we go through it point by point, we find some interesting things. 4.1.1. starts off easy to understand with “Members of the armed forces of a party to the conflict.” This pretty clearly means uniformed, state-sponsored soldiers of the kind we’re familiar with. It then immediately says ‘members of militias of such armed forces.’ This means something like the National Guard - a state-level militia that can also function in Federal service. So far so good.
4.1.2. is where it gets interesting, because it states that ‘Prisoners’ includes organized resistance movements under certain conditions. This is what people are usually referring to when they talk about insurgents, miltias, Wolverines, or whatever. It specifies that to be considered ‘Prisoners of War,’ and given the same consideration as uniformed soldiers, they have to meet those four criteria. (Responsible chain of command, fixed insignia or uniform, carrying arms openly, obedience to the law of war.) The Military Commissions Act of 2006 defines ‘lawful combatants’ using the same criteria. So if America got invaded by Russia or whatever, and you wanted to gather your Wolverines to join the resistance, you would need to meet those criteria. If you did NOT meet those criteria, there would be no way to tell the difference between a resistance fighter and a bandit. And, legally, you would suffer whatever punishment they give to bandits.
So let’s go back to the earlier hypothetical. You are a US soldier in Iraq. You see a group of armed men in civilian clothes. After a short firefight, some of them are captured. An Iraqi policeman arrives and wants to take custody of them. These men are accused of being notorious smugglers and arms dealers. They will be tried and punished under Iraqi law.
But one of them protests. “I am not a criminal!” he says. “We are the brave resistance fighters! We are an organized militia! We demand to be treated as prisoners of war!” This means they will go to an American prison camp until the end of hostilities, rather than being sent to Iraqi civilian jail.
So the question is: How do you tell the difference? Are these militiamen who count as prisoners of war? Or are they just arms dealers transporting their illegal weapons? Which prison do they belong in?
The point of the Geneva Convention is to give us an answer to that question. You can run down the checklist and see that these are not genuine and legally-recognized militia fighters, and therefore they belong in an Iraqi prison.
In an asymmetric conflict, it may appear that an insurgent combatant can gain an advantage by dressing as a civilian. The actual goal is to protect legitimate soldiers from abuses. If I wear a uniform, and carry my weapon, and so on, I can make a credible argument that I am not an arms smuggler but rather a soldier, and therefore gain the protections that the Conventions affords.
This isn’t much of a hypothetical. When I was in Iraq, I worked for the Provost Marshal and we had to determine which category people fell into. I jokingly called myself 'The Sorting Hat." We had a set of checklist to help decide whether prisoners would be held in US facilities and interrogated as insurgents under our US authorization for force, or if they were just Iraqi criminals and would be handed over to the Iraqi police.
So TLDR: Words like ‘irregular,’ ‘soldier’ and ‘criminal’ don’t actually matter to the Geneva Conventions. If an irregular meets the criteria in the Convention, he can be treated as a ‘Prisoner of War’ and given the same consideration as a soldier would receive. If an irregular does not meet those criteria, the detaining power may assume that he is a criminal and treat him as such.
First of all,you seemed to dodge the issue of everything that happens before they’e captured. Can you shoot at armed men first, even before they shoot at you? If so, does that make them criminals, or soldiers? Or are they just “threats”?
Second, you guys were fortunate in that you had the Iraqi court system to dump criminals on. What happens if there is no civilian legal system, or if it’s hostile to you? In the absence of other options, do you try criminals before a military tribunal?