A combatant is a person who takes a direct part in the hostilities of an armed conflict. If a combatant follows the law of war, then he or she is considered a privileged combatant and upon capture, he or she will qualify as a prisoner of war under the Third Geneva Convention (GCIII). An unprivileged combatant is a person, such as a mercenary, who takes a direct part in the hostilities but who upon capture does not qualify for prisoner-of-war status.
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Privileged combatants
The following categories of combatants qualify for prisoner-of-war status on capture:
- 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.
- 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 they fulfill the following conditions:
- that of being commanded by a person responsible for his subordinates;
- that of having a fixed distinctive sign recognizable at a distance;
- that of carrying arms openly;
- that of conducting their operations in accordance with the laws and customs of war.
- Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
- Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
For countries which have signed the "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts" (Protocol I), combatants who do not wear a distinguishing mark still qualify as prisoners of war if they carry arms openly during military engagements, and while visible to the enemy when they are deploying to conduct an attack against them.
Unprivileged combatants
There are several types of combatants who do not qualify as privileged combatants:
If there is any doubt as to whether the person benefits from "combatant" status, they must be held as a POW until they have faced a "competent tribunal" (GCIII Art 5) to decide the issue.
Most unprivileged combatants who do not qualify for protection under the Third Geneva Convention do so under the Fourth Geneva Convention (GCIV), which concerns civilians, until they have had a "fair and regular trial". If found guilty at a regular trial, they can be punished under the civilian laws of the detaining power.