(47) Under LOAC, only lawful combatants
may participate directly in
Professor Madeline Morris of Duke University School of Law testified as an expert for the defense that throwing a hand grenade at lawful combatants
, even if done by an unlawful combatant, was not a violation of the law of war.
Ultimately, it will question whether the unthinkable-extending the opportunity to qualify for lawful combatant
status with its accordant combatant immunity--might actually offer a greater likelihood of achieving these effects than clinging to the current lawful/unlawful combatant dichotomy.
As an example, the Military Commissions Act of 2009 criminalizes activities committed by unprivileged belligerents (i.e., conspiracy, material support, and murder in violation of the law of war) that would not be war crimes if committed by lawful combatants
committed during the course of an international armed conflict.
This, indeed, would seem to be the key point about those who engage in combat without obtaining the proper, "lawful" status: If you're not a lawful combatant
yourself, then you do not have the right to kill soldiers; they are not liable qua combatants to be harmed by you.
Although largely overlooked in public discussion to date, a fairly substantial body of post-WWII war crime jurisprudence clearly establishes denial of a fair trial as a war crime, with cases addressing trials of both POWs and civilians who had no claim to lawful combatant
(194) Protocol I stripped mercenaries of their right to be lawful combatants
, and to be prisoners of war if captured.
Although Heydrich was a lawful combatant
target, his combatant killers engaged in perfidy by disguising themselves as civilians.
(85) For example, the United States recognized the Vietcong Main Forces and Local Forces as lawful combatants
and granted them prisoner-of-war status upon capture despite being considered irregular "in the way in which they are raised and in the authority on which they depend." (86) Under the new formula relaxing the requirements for insurgents to acquire lawful combatant
status, insurgents can gain such status even when they do not carry their arms openly, except during an attack and the deployment immediately preceding the attack.
Rather than merely determining whether a detainee is an enemy combatant, the CSRTs should also decide whether a detainee found to be an enemy combatant is a lawful combatant
, immune from trial by military commission, or an unlawful combatant, subject to such trial.
Milligan was alleged to have engaged in hostile and warlike acts, but these were not legal acts of hostility because Milligan was not a lawful combatant
. Whether Milligan applies may depend on the emphasis placed on the legality of the acts of hostility of which Milligan was accused, rather than whether Milligan was engaged in acts of hostility at all.
The main effect of being a lawful combatant
is entitlement to prisoner of war status.