Are “Unlawful Combatants” Protected under International Humanitarian Law?

Xiao Mao


Xiao Mao wrote an essay which responds to the question whether there is a lacuna in international humanitarian law in which a category called ‘unlawful combatants’ are not protected. Xiao analysed certain provisions in the Geneva Conventions, state practice and relevant international jurisprudence in the context of war on terror. It was during the Bush Administration that the prominence of this issue arose in the context of ‘war on terror’ as some members of terrorist groups were labelled as ‘unlawful combatants’ and thus were denied protection under international humanitarian law. Ultimately, Xiao concluded that event though some states attempted to deny protection to such combatants were through labelling them as unlawful, there is no lacuna in this regard under international humanitarian law. Sufficient provisions under the Geneva Conventions provide protections to combatants in case they fall into the hands of the enemy. Furthermore, even though such protections are not similar to what other innocent civilians enjoy, there is a guarantee to a minimum protection under international humanitarian law. Lastly, Xiao finds it very dangerous to recognise the third status in humanitarian law which might lead to the aggravation of such combatants and their noncompliance with international humanitarian law.

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