![]() To treat them as mercenaries, a State would additionally need to prove, among other things, that they are motivated to take part essentially by the desire for private gain. Consequently, any person who joins a foreign State’s armed forces is not a mercenary and cannot be denied POW protection (including immunity from prosecution) on such grounds.Įven if third country nationals take part in fighting without joining a State’s armed forces, they are not automatically considered a mercenary under IHL. For example, members of the armed forces of a belligerent State – whatever their nationality – cannot, by definition, be considered mercenaries. In fact, treaty and customary IHL define the term ‘mercenary’ much more narrowly than its use in public discourse might sometimes suggest. The mere fact that someone fights for a foreign country does not make them a ‘mercenary’ for that State under the law of armed conflict. Are third-country nationals who fight in a war ‘mercenaries’? If there is any doubt about whether a person who has participated in hostilities is entitled to POW status, they must be granted the POW protections of the Third Convention until their status has been determined by a competent tribunal. As with other POWs, the capturing State may thus intern them until the end of active hostilities to prevent a return to the battlefield, but it is barred from prosecuting them merely for having engaged in violence against its forces. The right to participate in hostilities, which shields captured troops from treatment as criminals, does not cease to apply just because a fighter is a citizen of a non-belligerent State. Importantly, third-country nationals captured while serving in the adversary’s armed forces are entitled to combatant immunity. The State must treat them humanely and with respect for their honour, register and notify them to its National Information Bureau and the ICRC’s Central Tracing Agency, allow them to correspond with their families, protect them from exposure to public curiosity, and provide them with appropriate living conditions in case of internment, among other things. The detaining State is required to grant third-country nationals with POW status the full range of the Third Convention’s protections. Depending on the treaties in force, their POW status might turn on different criteria, but nationality is never one of them. ![]() If, for example, they join the armed forces of the State prior to their capture, or if the State incorporates their unit into its armed forces, the captured combatants are protected as prisoners of war (POW) under the Third Geneva Convention. When fighters from non-belligerent States are captured, their status largely depends on the type and degree of affiliation they have with the State they are fighting for. What are the rights and protections of detained third-country nationals? Are they protected as Prisoners of War (POWs)? No one affected by armed conflict may be excluded from legal protection because of their actions, or on grounds of their citizenship. Whatever legal category they belong to under the circumstances and whatever their nationality, detained, wounded, and deceased third-country nationals who have engaged in combat remain within IHL’s scope of protection at all times. However, the fighters’ nationalities and the circumstances of their participation can affect their status and corresponding rights if they fall into the hands of the adversary. There is no rule requiring States to rely exclusively on their own citizens to comprise their armed forces, and individuals who come from abroad to fight are not, without more, violating IHL. International humanitarian law does not prohibit participation in hostilities by third-country nationals. The status and protection of third-country nationals in international armed conflict.
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