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lawful combatants is that they have sufficient discipline and command
According to Article 43(2) of Additional Protocol I, a lawful combatant who has the right to participate directly in hostilities must be a member of the armed forces of a party to the conflict.
True, accepting the adverse party as lawful combatants may have a downside for the de jure government.
(47) Under LOAC, only lawful combatants may participate directly in
Under this view, the key distinction appears to be that Milligan's activity could not be characterized as legal acts of hostility because Milligan was not a lawful combatant belonging to Confederate forces.
4 (providing basis for qualifying as lawful combatant); Aldrich, supra note 41, at 893 (explaining Al Qaeda as unlawful combatants); supra notes 99-100 and accompanying text (describing al-Awlaki's active involvement in terrorism plot).
In international conflicts, IHL establishes different domains for lawful combatants and civilians.
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.
(7.) Rivkin & Casey, supra note 3, at 132 ("It was fully recognized that if the regular armed forces of a sovereign state failed to meet these four minimum criteria then its members would lose their status as lawful combatants ...
(91) Lawful combatants are those individuals who fight for a state's armed forces or militia, or belong to one of the groups described in GC III, Article 4 and report to a responsible chain of command, distinguish themselves, carry their arms openly, and conduct their actions in compliance with the laws and customs of war.
He has asserted that CIA operatives are "clearly not lawful combatants, [and] if you are not a privileged combatant, you simply don't have immunity from domestic law for participating in hostilities." The secrecy surrounding these operations has made it difficult for test cases to arise.
In these circumstances the terrorists occupy a position distinct from both the "noncombatant" terrorists of the terrorism-as-crime framework and the lawful combatants of regular war.