The Geneva Conventions state that all captives have to be accorded all the protections of Prisoner of War status, until a competent tribunal sat, and determined that the captive was not a " lawful combatant ".
22.
The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans _ men, women and children _ is not a lawful combatant,
23.
The Conventions do consider spontaneous rising against invasion and civil war as having lawful combatants, but there are many more restrictions of the status, as legal combatants of fighters who came to a war from an external country.
24.
The Clause was introduced as a compromise wording for the dispute between the Great Powers who considered francs-tireurs to be unlawful combatants subject to execution on capture and smaller states who maintained that they should be considered lawful combatants.
25.
According to the Geneva Conventions, innocent civilians should be immediately released; lawful combatants should enjoy the protections of POW status until hostilities are over; and only those determined to have violated the laws of war can face charges for hostile activity.
26.
However, Article 31 provides that if a spy successfully rejoined his own military and is then captured by the enemy as a lawful combatant, he cannot be punished for his previous acts of espionage and must be treated as a prisoner of war.
27.
"Lawful combatants are members of organized forces who wear distinctive insignia, are subject to command and are capable of complying with laws of war, " said Anne-Marie Slaughter, a professor of international law at the Harvard Law School.
28.
But federal prosecutors said Lindh cannot be given " lawful combatant status " because fighting with the Taliban does not fit the rules of war in which soldiers must have a commander in charge, a distinctive uniform or insignia, and visible weapons.
29.
"By the law of war, lawful combatants are subject to capture and detention as prisoners of war; unlawful combatants, in addition, are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful, " the court wrote.
30.
The second is that at the Hague Conference of 1899, there was disagreement between the Great Powers who considered " francs-tireurs " to be unlawful combatants subject to execution on capture, and smaller states, which maintained that they should be considered lawful combatants.
