Eric Talbot Jensen, 𝘊𝘰𝘮𝘣𝘢𝘵𝘢𝘯𝘵 𝘚𝘵𝘢𝘵𝘶𝘴: 𝘐𝘵 𝘐𝘴 𝘛𝘪𝘮𝘦 𝘧𝘰𝘳 𝘐𝘯𝘵𝘦𝘳𝘮𝘦𝘥𝘪𝘢𝘵𝘦 𝘓𝘦𝘷𝘦𝘭𝘴 𝘰𝘧 𝘙𝘦𝘤𝘰𝘨𝘯𝘪𝘵𝘪𝘰𝘯 𝘧𝘰𝘳 𝘗𝘢𝘳𝘵𝘪𝘢𝘭 𝘊𝘰𝘮𝘱𝘭𝘪𝘢𝘯𝘤𝘦, 46 Vᴀ. J. Iɴᴛ'ʟ L. 209 (2005).
Under current international law, combatant status is an all-or-nothing proposition. Either a fighting force qualifies under all the criteria of article 4 of the GPW and receives all the privileges and immunities of combatant status, or a force does not qualify, and is provided no protection above that of any other civilian in the area, and may even be disqualified from the protections afforded to civilians. Given the reality of today's battlefields where the conflict is seldom between the armed forces of two nations, these requirements are counterproductive and provide a disincentive for fighters to distinguish themselves from the civilian population. To remedy this counterproductive state of the law, the all-or-nothing nature of combatant status should evolve to allow for intermediate levels of recognition in response to partial compliance with the traditional combatant requirements. As those on the battlefield comply with portions of the combatant requirements, particularly that of distinguishing themselves from noncombatants, they should accrue privileges commensurate with their efforts. Providing intermediate levels of recognition for partial compliance will provide incentives for otherwise unlawful combatants to comply with international law without eroding the maximum benefits offered to those who comply with all requirements of combatant status.
46 Va. J. Int'l L.
Virginia Journal of International Law