…how long has the term been in use?
Some uses of the term:
http://www.foreignminister.gov.au/transcripts/2005/050801_ds.html http://news.yahoo.com/s/oneworld/20060108/wl_oneworld/45361252381136698011
From the Air Force Law Review:
An unlawful combatant is also referred to with identical meaning as an illegal combatant, unprivileged combatant , franc-tireur meaning “free-shooter,” unprivileged belligerent, dishonorable belligerent or unlawful belligerent. The unlawful combatant may then, upon capture in an international armed conflict at the discretion of the capturing party, forfeit combatant’s privilege and Geneva Convention III POW status, and not be afforded full POW protections under Geneva Convention III. Further, if the unlawful combatant has committed grave breaches of LOAC, the individual may be tried in a military commission; and if convicted, be punished appropriately.
(Emphasis added.)
http://www.findarticles.com/p/articles/mi_m6007/is_55/ai_n8585592/pg_2
From the Wikipedia – http://en.wikipedia.org/wiki/Unlawful_combatant:
Unlawful combatant (also illegal combatant, enemy combatant or unprivileged combatant) is a term mainly and prominently used by the Bush administration, and describes a person who engages in combat without fulfilling the conditions that confer lawful combatant status according to the laws of war.
The phrase “unlawful combatant” does not appear in the Third Geneva Convention (GCIII); nor does the word “combatant.” However, Article 4 of GCIII does describe categories of persons who are entitled to prisoner of war status. “Prisoner of war” is generally synonymous with “detained lawful combatant.” Since the September 11, 2001 attacks, the Bush administration has suggested that those who do not meet this definition should be determined to be “unlawful combatant.” However, if there is doubt about whether persons have fulfilled the conditions that confer prisoner of war status, Article 5 of the GCIII states that their status may be determined by a “competent tribunal” and until such time they are to be treated as prisoners of war.[1]
After such “competent tribunals” have determined their status, the “Detaining Power” may choose to accord detained unlawful combatants the rights of prisoners of war as described in the Third Geneva Convention, but is not required to do so. Unlawful combatants may retain rights under the Fourth Geneva Convention so that they must be “treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial”.[2]
The quotes provided by other Dopers give an accurate answer, but it should be known that the term is an attempt to get around the Geneva Conventions and other related elements of international and domestic law eg the Hague Convention.
The Conventions give certain rights to members of the armed forces / militias (GC III) and to civilians (GC IV). By titling these detainees “unlawful combatants” or something similar, the Bush administration and its allies attempt to create a class of detainees that is neither military or civilian, and thus not entitled to the rights of either class.
What I really think about this would take this thread to GD or the Pit, but that’s the general gist.
That should be Hague Conventions . My statement that the terms are “attempts to get around the GCs” is opinion, not fact, so I withdraw it. Instead, I state that some have argued this, and that many believe that they have had such an effect.
…thanks to all. Can we confirm that it is a recent term, or does it have “history?”
Right. It has been pointed out that the commentary to the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War says:
Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, [or] a civilian covered by the Fourth Convention . . . . There is no intermediate status; nobody in enemy hands can be outside the law.
BRIEF OF AMICI CURIAE EXPERTS ON THE LAW OF WAR in *Padilla v. Rumsfeld * (2d Cir. 2003).
But see , Fourth Convention, Article 5:
Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
[T]he terms ‘unlawful combatant,’ ‘unprivileged combatant/belligerent’ do not appear in [the treaties of the international laws of armed conflict and international humanitarian law]," but these terms have "been frequently used at least since the beginning of the last century in legal literature, military manuals and case law.
Joseph P. Bialke, “Al-Qaeda & Taliban unlawful combatant detainees, unlawful belligerency, and the international laws of armed conflict,” Air Force Law Review, Spring, 2004: http://www.findarticles.com/p/articles/mi_m6007/is_55/ai_n8585592/pg_18 *quoting * Knut Dormann, The Legal Situation of “Unlawful/Unprivileged Combatants,” 85 I.R.R.C. 45, 46 (Mar., 2003) (citing several references for similar claims).
pravnik
January 10, 2006, 10:53pm
9
The term and the concept of an “unlawful combatant” have some history to them, at least in U.S. law. The term “enemy combatant” was first used in a wartime case dealing with some Nazi sabotuers, Ex Parte Quirin
By 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 [317 U.S. 1, 31] those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. See Winthrop, Military Law, 2d Ed., pp. 1196-1197, 1219-1221; Instructions for the Government of Armies of the United States in the Field, approved by the President, General Order No. 100, April 24, 1863, sections IV and V.