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date: 17 February 2019

Abstract and Keywords

The legal situation of ‘unlawful combatants’ has been one of the most contentious issues in international humanitarian law. It has been addressed in some detail in legal writings following the adoption of the Geneva Conventions of 1949 and then before the 1977 Additional Protocols to the Geneva Conventions were adopted. The United States-led military campaign in Afghanistan, which started in 2001, revived the debate. This chapter examines the debate concerning the legal framework applicable to the possible detainability and targetability of ‘unlawful combatants’. It first considers ‘unlawful combatants’ in the hands of the enemy within the framework of international and non-international armed conflicts. It then discusses the penal prosecution of ‘unlawful combatants’ as well as their status under the rules of the conduct of hostilities. The chapter concludes by looking at the practice in Israel and the United States, the former in reference to the incarceration of unlawful combatants and the latter with respect to the fight against terrorism.

Keywords: unlawful combatants, international humanitarian law, detainability, prosecution, conduct of hostilities, Israel, United States, incarceration, terrorism

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