An enemy combatant is a member of a military or organized militia unit of an opposing country, including civilians who participate in war efforts. Legal enemy combatants are entitled to benefits of a prisoner of war, while illegal combatants do not qualify for POW benefits. The definition of an enemy combatant changed after the 9/11 attacks, causing controversy over their treatment and legal status. An enemy combatant has the right to face a military tribunal, but debates over their legal status have made it difficult to conduct timely trials. They could be imprisoned indefinitely until hostilities cease.
In the original sense of the word, an enemy combatant is any member of a military or organized militia unit of an opposing country. A boy who throws rocks at tanks may also be considered a combatant, even though he doesn’t wear a uniform or belong to a formal militia. During times of war, these people may be considered lawful or illegal, a distinction which can have a marked effect on their treatment if caught.
A uniformed soldier captured on the battlefield is considered a legal enemy combatant under the rules of engagement. The soldier’s membership in his country’s military could be verified and any weapons he carried would be worn openly. A legitimate enemy combatant is entitled to all the benefits of a prisoner of war, as defined by the Third Geneva Convention. Regular meals, medical care, regular visits from the Red Cross and access to the mail would be provided, although it may be censored.
If a captured combatant is found to be an illegal enemy combatant, such as a spy or mercenary, he typically does not qualify for POW benefits. The Fourth Geneva Convention provides some protections for civilians involved in the war effort, but the military may consider these prisoners too dangerous for the general population of a prison camp. These illegal combatants may also have sensitive information that could only be disclosed under rigorous interrogation tactics.
The working definition of an enemy combatant changed quite dramatically following the terrorist attacks of September 11, 2001. In the months immediately following the attacks, President Bush invoked a number of rights under a long-standing War Powers Act. One of these rights was to define a captured member of Al Qaeda or the Taliban as a combatant, two of the most important terrorist organizations. Because members of such organizations don’t wear uniforms or belong to a recognized state’s military, they are not considered legal combatants. Thus, any such person given this status by the United States military would not be eligible for prisoner-of-war protection under the Third Geneva Convention.
This use of the enemy fighter loophole in the Geneva Treaty proved controversial. Several senior Al Qaeda leaders believed to be responsible for planning the 9/9 attacks were detained in secret prisons around the world and interrogated by legally questionable means. President Bush insisted that the status of these men allowed the military greater influence, but the Supreme Court later ruled that captured Al Qaeda members should be protected as prisoners of war under the Third Geneva Convention . The military eventually moved these prisoners to Guantanamo, Cuba, the site of an existing prison camp for held enemy combatants.
An enemy combatant has the right to face a military tribunal for his wartime activities. Debates over the legal status of these people have made it very difficult to conduct timely military tribunals. It appears they could be imprisoned until all hostilities cease, which in the case of the war on terrorism could be indefinite.
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