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An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a combatant who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action, subject of course to international treaties on justice and human rights.〔ICRC official statement: ''(The relevance of IHL in the context of terrorism )'', 21 July 2005〕 The Geneva Conventions apply in wars between two or more sovereign states. Article 5 of the Third Geneva Convention states that the status of a detainee may be determined by a "competent tribunal". Until such time, he must be treated as a prisoner of war.〔("Unlawful Combatants" in the United States: Drawing the Fine Line Between Law and War ) Human Rights Magazine Winter 2003, published by the American Bar Association〕 After a "competent tribunal" has determined that an individual detainee is an unlawful combatant, the "detaining power" may choose to accord the detained unlawful combatant the rights and privileges of a prisoner of war as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral state, and who is not a national of a co-belligerent state, retains rights and privileges under the Fourth Geneva Convention so that he must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".〔(The legal situation of unlawful/unprivileged combatants ) (IRRC March 2003 Vol.85 No 849)〕 While the concept of an unlawful combatant is included in the Third Geneva Convention, the phrase itself does not appear in the document.〔 Article 4 of Third Geneva Convention does describe categories under which a person may be entitled to POW status, and there are other international treaties that deny lawful combatant status for mercenaries and children. In the United States, the Military Commissions Act of 2006 codified the legal definition of this term and invested the U.S. President with broad discretion to determine whether a person may be designated an unlawful enemy combatant under United States law. The assumption that such a category as unlawful combatant exists is not contradicted by the findings of the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgment quoted the 1958 International Committee of the Red Cross (ICRC) commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "''There is no'' intermediate status; nobody in enemy hands can be outside the law",〔The International Criminal Tribunal for the Former Yugoslavia "Celebici Judgment: Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No". (IT-96-21-T ) seems to return the Appeal Judgment instead of the Trial Judgment. However, the relevant section of the Judgment is available from the University of the West of England (Delalic et al. (I.T-96-21) "Celebici" 16 November 1998 Part III B, Applicable law 2. Status of the Victims as "Protected Persons". See: Para. 271 ): :In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians. :It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that; ::()very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. ''There is no'' intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view". Jean Pictet (ed.) – (Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) ) – 1994 reprint edition.〕 because in the opinion of the ICRC, "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action".〔〔(Geneva Conventions Protocol I ) Article 51.3 also covers this interpretation "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities".〕 The Geneva Conventions do not recognize any lawful status for combatants in conflicts not involving two or more nation states. A state in such a conflict is legally bound only to observe Article 3 of the Geneva Conventions and may ignore all the other Articles. But each one of them is completely free to apply all or part of the remaining Articles of the Convention.〔(Commentary for Common Article 3 of the Geneva Conventions )〕 == International law and practice == The term "unlawful combatant" has been used for the past century in legal literature, military manuals, and case law.〔Knut Dörmann: "(The legal situation of unlawful/unprivileged combatants )". Article in the International Review of the ICRC, March 2003〕 However, unlike the terms "combatant", "prisoner of war", and "civilian", the term "unlawful combatant" is not mentioned in either the Hague or the Geneva Conventions. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.〔〔(Warriors without rights? combatants , unprivileged belligerents, and the struggle over legitimacy ) by Kenneth Watkin for (The Program on Humanitarian Policy and Conflict Research ) or 〕 At the First Hague Conference, which opened on 6 May 1899, there was a disagreement between the Great Powers—which considered ''francs-tireurs'' unlawful combatants subject to execution on capture—and a group of small countries headed by Belgium—which opposed the very principle of the rights and duties of armies of occupation and demanded an unlimited right of resistance for the population of occupied territories. As a compromise, the Russian delegate, F. F. Martens, proposed the Martens Clause, which is included in the preamble to the ''1899 Hague Convention II – Laws and Customs of War on Land''. Similar wording has been incorporated into many subsequent treaties that cover extensions to humanitarian law.〔Rupert Ticehurst ''(The Martens Clause and the Laws of Armed Conflict )'' 30 April 1997, ''International Review of the Red Cross'', no. 317, p.125-134〕〔Vladimir Pustogarov, ''(Fyodor Fyodorovich Martens (1845-1909) - a humanist of modern times )'', 30 June 1996 ''International Review of the Red Cross'', no. 312, p.300-314〕〔(Laws of War: Laws and Customs of War on Land (Hague II) ); 29 July 1899. contained in the Avalon Project archive at Yale Law School〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Unlawful combatant」の詳細全文を読む スポンサード リンク
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