In an International Armed Conflict, combatants may be targeted at any time and at any place, whereas civilians are to be immune from attack.
In a report on terrorism, the Inter-American Commission stated, “the combatant’s privilege (…) is in essence a licence to kill or wound enemy combatants and destroy other enemy military objectives.” As a result, a combatant cannot be prosecuted for killing or wounding an enemy combatant but is subject to prosecution for war crimes if International Humanitarian Law is violated. Combatants are defined within Additional Protocol I to the Geneva Conventions as ‘all organised armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates’.
However, during the recent International Armed Conflicts in Iraq and Afghanistan, with irregular armed forces participating in hostilities, the issue of combatancy emerged as a major debate in International Humanitarian Law. At various times the United States argued that both Al Qaeda and Taliban fighters were ‘unlawful combatants’ – a highly disputed category in the law of armed conflict, as they did not seem to have the level of organisation and command necessary to comply with the definition above. The major issue with respect to those persons who do not fall into the traditional definition of combatant is to determine the issue of direct participation in armed conflict. Direct participation is even more pertinent in a Non International Armed Conflict where combatants are even more difficult to identify.
DISCUSSION PAPER 2: DRONE ATTACKS, INTERNATIONAL LAW, AND THE RECORDING OF CIVILIAN CASUALTIES OF ARMED CONFLICT, p. 13