국제인도법상 불법전투원의 법적 지위

Through the two World Wars, International Humanitarian Law has evolved to strengthen protection for civilians. As a result, the principle of distinction between combatants and civilians has been established as a cardinal principle of International Humanitarian Law. To establish practical protection for civilians in the event of international armed conflict, a clear understanding of the criteria of distinction between combatants and civilians must precede. Nevertheless, the distinction between the two of them is not so simple. In particular, the “War on Terror” since 2001 was a complex type of conflict that has never been expected in the existing normative regime. And the problem of the distinction between combatants and civilians is developing in more complex ways, as the United States takes advantage of the concept of “unlawful combatants” in the context of “War on Terror”. The United States sought to define unlawful combatants, which is persons taking direct part in hostilities without being entitled to do so, as a third category distinct from combatants or civilians, but international humanitarian law does not recognize the intermediate status between combatants and civilians. Therefore, it would be fair to assume that so-called unlawful combatants also have civilian status unless they meet the requirements of POWs. However, under Article 5 of the four Geneva Conventions of 1949, the treatment of unlawful combatants is hardly the same as that of pure civilians. This paper examined how unlawful combatants should be treated in detail under international law and how their treatment could change if the concept is used in the context of non-international armed conflict. Such discussions could ultimately contribute to improving civilian protection in wartime by making the distinction between combatants and civilians clearer.