However, it must be noted that during the campaign in Afghanistan the
United States originally treated all captured personnel as ‘enemy
combatants’, denying them any of the rights of lawfulcombatants
under the law of armed conflict. This policy was, however, changed in
mid-2006. Bluntschli does not use the term ‘combatants’,
although he does speak of ‘noncombatants’. He states: 16
It has been accepted since antiquity that some restraint should be observed during armed conflict. This book examines the apparent dichotomy and introduces any study of the law of armed conflict by considering the nature and legality of war. The purpose of what is known as the law of armed conflict or, more commonly, the law of war is to reduce the horrors inherent therein to the greatest extent possible, bearing in mind the political purpose for which the war is fought, namely to achieve one's policies over one's enemies. The discussion on the history and sources of the law of armed conflict pays most attention to warfare on land because that is the region for which most agreements have been drawn up, although attention has been accorded to both aerial and naval warfare where it has been considered necessary. Traditionally, international law was divided into the law of war and the law of peace, with no intermediate stage between. Although diplomatic relations between belligerents are normally severed once a conflict has commenced, there remain a number of issues, not all of which are concerned with their inter-belligerent relations, which require them to remain in contact. War crimes are violations of the and customs of the law of armed conflict and are punishable whether committed by combatants or civilians, including the nationals of neutral states. The book also talks about the rights and duties of the Occupying Power, civil defence, branches of international law and prisoners of war.
to treat the population in accordance with international law. He
cannot be expected to treat as noncombatants inhabitants who
claim the right to commit against him direct or indirect acts of
hostility and who are not organised in a manner entitling them
according to international law to be treated as lawfulcombatants 93 . . . . It is
’s assurance that people who appear to be non-combatants pose no threat. In any event, this case established the precedent for the concept of an ‘unlawful combatant’ to which the Bush administration has appealed.
According to the administration, unlawful combatants are like lawfulcombatants in that they may be attacked at will without an attempt to capture them. Yet they lack the rights and immunities of lawfulcombatants and thus may be tried by either civil or military courts for harms they may cause, even to opposing combatants. The administration also claims
civilian character. 31 This provision has become of
major significance since the recognition of a war of national liberation
as an international conflict, 32 for now persons not in uniform and apparently
civilians and so not easily recognisable as combatants may in fact be
lawfulcombatants and not civilians committing unlawful belligerent
This is a problem that was originally
as the pursuing aircraft remains in contact and the intruding aircraft
does not enter the air space of another state, unless it is during
conflict and that air space is being used as sanctuary by aircraft
belonging to the adverse party.
The role of
aircraft in war
Since they are lawfulcombatants 20
the Treatment of
Civilians in Time of War, Schindler and Toman, 495, see Ch. 12
On lawfulcombatants see Ch. 6 above.
The position of Leopold III of Belgium in World
War II was anomalous. As commander-in-chief he surrendered his
recognising that they were lawfulcombatants and also legitimate targets in an armed conflict.
International humanitarian law is applicable during an armed conflict, and so is primarily applicable to the in bello stage rather than the post bellum stage (with the exception of the law of occupation). If, however, violence persists or flares up in the post-war phase and reaches the level of an armed conflict of a non-international character (defined by the ICTY as ‘protracted armed violence between governmental authorities and organized armed groups within a state’ 120
and refused to afford them any of the rights under the 1949 Conventions.
Finally, military commissions 146 were established to try some
of them, but in Hamdan v. Rumsfeld 147 these were held by the Supreme
Court to be contrary to both the US Constitution and the Geneva
Conventions, and he United States announced its intention in the future
to treat all personnel in military hands in
18, 19, below.
However, the United Nations (this was the name
of the alliance against Germany) command during World War II
insisted that such bodies as the French Forces of the Interior were
to be treated as lawfulcombatants, and they did in fact wear a