Treatment of "Battlefield Detainees" in the War on Terrorism Page: 18 of 47
This report is part of the collection entitled: Congressional Research Service Reports and was provided to UNT Digital Library by the UNT Libraries Government Documents Department.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
CRS-15
their affiliation to an official military were summarily shot asfranc-tireurs.83 The lack
of international consensus with regard to the treatment of insurgents and partisans
contributed to the international impetus to codify the law of war, but has not been
resolved and remains a source of contention among states parties to the resulting
treaties.84 Guerrilla tactics do not appear to be in and of themselves violative of
international law.85 It could be argued that conventional style warfare conducted by
irregular soldiers is no worse. Under this view, members of irregular armies who
carry out ordinarily lawful belligerent acts, or who have not personally carried out any
hostile acts, while not necessarily entitled to POW privileges, are not punishable as
unlawful combatants. Like POWs, they would be subject to internment at the hands
of the state without necessarily being charged with a crime. Their detention would
be based on membership in the irregular army rather than citizenship and suspicion.
The issue remains: what set of rules applies to them? Some argue that, in the
very least, Common Article 3 applies as well as other international human rights law.
Others argue that neither peacetime civil law nor the law of war applies, essentially
leaving them outside international law altogether.
Characterizing the Conflict
In order to determine the legal status of the detainees, it is first necessary to
determine whether an armed conflict exists, and if so, whether that conflict is
"international" or "non-international." The type of armed conflict depends upon the
status of the parties to the conflict and the nature of the hostilities. The status and
rights of individuals depend, in turn, on the relationship of those individuals to the
parties to the conflict. It may also become important to determine the temporal and
geographical boundaries of the armed conflict - for the most part, the Geneva
Conventions would not apply to conduct that occurred prior to the onset or after the
end of the armed conflict, nor would it apply to conduct occurring on the territory of
a non-party to the conflict. Whether the territory on which the punishable conduct
occurred is considered "occupied" or "partially occupied" may also be relevant to
determining the status of detainees and the law applicable to them.86
The Geneva Conventions apply in full to "all cases of declared war or of any
other armed conflict which may arise between two or more of the High Contracting83See id. at 44 (citing the example of the Franco-Prussian War as impetus for advancements
in the law of war allowing irregular fighters to qualify as belligerents).
84See Baxter, supra note 18, at 327 (arguing the 1949 Geneva Conventions destroyed what
little certainty had existed in the law regarding status of irregulars).
85See id. at 337 (noting distinction between those fighting for private gain and those fighting
because of genuine allegiance to a cause).
86See GC sec. III; but see W.T. Mallison & R.A. Jabri, The Juridical Characteristics of
Belligerent Occupation and the Resort to Resistance by the Civilian Population: Doctrinal
Development and Continuity, 42 GEO. WASH. L. REV. 185, 189 (1974) (arguing that the
1949 Geneva Conventions removed the traditional distinction between "invasion" and
"belligerent occupation" as far as the treatment of civilians is concerned).
Upcoming Pages
Here’s what’s next.
Search Inside
This report can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Report.
Elsea, Jennifer K. Treatment of "Battlefield Detainees" in the War on Terrorism, report, April 11, 2002; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metacrs2245/m1/18/: accessed May 6, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.