International Law and Practice
The term "unlawful combatant" has been used for the past century in legal literature, military manuals, and case law. 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.
At the First Hague Conference, which opened on 6 May 1899, there was a disagreement between the Great Powers—which considered francs-tireurs to be 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.
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