Leaving the Sidedish and Back to the Meat

1949 and 1977 GCs, etc., quoted below, etc. - at ICRC, The Geneva Conventions Index.

from LawVol
[1] Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense. [2] But what about so-called freedom fighters? By this I'm referring to the Geneva protocol (the first I think) that redefines combatant to remove the requirement of a uniform. I'm going off memory here, so I could have it a bit off. [3] Let's assume we're fighting Hamas (which would probably fall within this status) or even the Iraq Republican Guard circa 2003. Would Joe be a lawful target to them while he's chillin' in Bean Town?
Taking the three parts separately.

1. "illegal combatant"

[1] Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense.
Probably better than "illegal combatant" or "unlawful combatant" would be a division between "combatant with combatant immunity" and "combatant without combatant immunity". Of what "immunity" do we speak ? We speak of "immunity" from prosecution for a "civilian" crime or a "military" crime - homicide, maiming and kidnapping would be the generic equivalent of the acts granted "immunity" on the battlefield. The "immunity" is conditional and requires compliance with the "rules of warfare" on the part of the combatant and the group he fights for.

Me thinks that is a tempest in a teapot for folks engaged in irregular warfare as irregular combatants (who may or may not be "combatants with combatant immunity"). If they are facing death or indefinite detention simply because they are an irregular combatant (a Common Article 3 combatant), the prospect of being captured and tried before a civilian court or military commission is not likely to be a material consideration as they consider combat.

That seems to be the case with all TVNSA (Transnational Violent Non-State Actors) and DVNSA (Domestic Violent Non-State Actors) groups. None of them have (to my knowledge) availed themselves of the opportunity to avail themselves of protected status, by accepting and applying the Geneva Conventions, under the option of Common Article 2 (para 3) of the 1949 GCs (emphasis added):

Art. 2.

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
That option has been available to AQ, the various Taliban and all the other groups of consequence ("Powers") in an "armed conflict" involving one or more Contracting Parties to the Conventions.

Why have these VNSAs not availed themselves of Common Article 2 ? Because they want to have their cake and eat it - in short, to be transitory combatants who can turn their civilian status off (to become combatants when they "directly participate in hostilites") and then on again as they cease being "hostile" and return to hiding among the civilians.

2. But what about so-called freedom fighters?

Additional Protocal I (1977) - not accepted by US, but accepted by most ISAF partners - amends Common Article 2 drastically, by its Art. 1 (emphasis added):

Art 1. General principles and scope of application

1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances.

2. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
Please note the use of "self-determination" - a term with which I am very uncomfortable, unless it is defined in a mutually-agreed "working definition" with whomever is discussing the term.

The "transitory combatant" provisions are based on Art. 1(4) and on Art. 43 (emphasis added):

Art 43. Armed forces

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.
and with more exemplification in Art. 44 and 45.

These provisions make the option of Common Article 2 (that available to all Powers in a conflict) mandatory - including "compliance with the rules of international law applicable in armed conflict", Art. 43(1).

Thus, along with the combatant immunity provided by Art. 43(2), goes a reciprocal obligation to apply the rules of armed conflict. Is there a guerrilla group (there must be at least one ) that applies the rules of armed conflict ? If not, then they should be prosecuted for "war crimes", shouldn't they ? Of course, to a dedicated fanatic, the threat of potential criminal prosecutions would seem to a "Big Deal ! FO" situation.

3. Would Joe be a lawful target to them while he's chillin' in Bean Town?

Joe is presumptively a civilian; and can be detained only for reasons of security by (say) an occupying power. He can be whacked only if he is in some way participating (let's leave aside the "directly" or not issue) in an armed conflict. The strength of legal argument for whacking him runs downhill from (1) he is "part of" an armed force; (2) he is part of an "affiliated group" to an armed force; OR (3) he is a "provider of material support" to such a force or forces.

Last point

from LawVol
A secondary consideration to consider: if we say a Talib conducting a mission in Boston has no lawful target due to his status, are we being consistent? Another words, we treat him as a criminal, but not when it comes to engaging him. Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? If a member of a state force commits war crimes, can't he still engage lawful targets later on? Am I making sense here or do I need to restate?
You probably need to restate. My Colonial Marine ancetors were "a-letter-rate"; I h a v e t o r e a d o n e l e t t e r a t a t i m e; some were illiterate cuz their mothers were'nt married (what a dumb joke); and none went to McGill Univ.

Beyond all that, you are mixing your Laws of War and Rule of Law. Here's my analysis:

The Talib is on a military mission wherein he is directly participating in hostilities (if he's not, this line of analysis does not apply) by killing Mark Martins as he emerges from the sacred entrance of Harvard Law. The Talib is a combatant under either the 1949 Geneva Conventions (Common Article 3) or under Additional Protocol I (Talib "self-determination" and all that ). If he wastes Martins in an approved "Hague-Geneva" manner, he has committed no "war crime". However, if only the 1949 GCs apply, the Talib could be prosecuted for any number of US Code violations.

I don't see the problem here - except the Tallib is not likely concerned with having to appear in Federal Court.

To the subsidiary questions:

Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? - YES.

If a member of a state force commits war crimes, can't he still engage lawful targets later on? - YES

Regards

Mike