Israel would actually be within its rights to detain and execute unlawful or unprivileged combatants IE saboteurs and spies however, Israel is making every attempt to follow a higher path and take the high ground in its treatment of violent Arab Muslims.
As it sit the Arab Muslims in Gaza and in the Israeli territories are happy to execute prisoners without due process as Tinmore and others have so graciously pointed out. However I'd agree that Israel takes this higher road except for that Israel allows these unlawful combatants to remain in country. IMHO they should be summarily repatriated.
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“The ICRC was uncertain which category of persons it was desired to cover. The present Conference was engaged in framing a Convention to protect members of armed forces and similar categories of persons, such as members of organized resistance movements, and another convention to protect civil- ians. Although the two Conventions might appear to cover all the categories concerned, irregular belligerents were not actually protected. It was an open question whether it was desirable to give protection to persons who did not conform to the laws and customs of war; but in view of the fact that isolated cases might arise which deserved to be taken into account, it would appear necessary to provide for a general clause of protection, similar to the one con- tained in the Hague Convention of 1907, to which the Soviet Delegate had referred. It did not however seem expedient to introduce this conception into an Article, the main object of which was to define clearly all the categories of persons who should be protected by the present Convention [III].” 20
From this statement, three essential points can be singled out:
First, Mr Wilhelm interpreted the Stockholm drafts of GC III and IV as not protecting irregular belligerents or “persons who did not conform to the laws and customs of war”. This is rather surprising, given that the per- sonal scope of application of GC IV was very broadly defined,21 unless he meant that such persons might be covered by the personal field of applica- tion but that the substantive provisions did not really accord protection (if he limited his statement to unlawful combatants on the battlefield as defended nowadays in the legal literature by, for example, Baxter, Draper and Kalshoven).
Second, he recognized the need for minimum protection of such per- sons, which can be derived from the Martens Clause.
Third, this protection should not be spelled out in a convention deal- ing with POWs.
The Danish delegate responded by saying that “it was not a question of granting the persons referred to in the paragraph the same rights and privi- leges as those of prisoners of war, but simply of affording “a minimum of pro- tection”, “of preventing such persons from being subjected to inhuman treat- ment or summarily shot”.22
Other delegates were not opposed to providing a minimum of protec- tion, but could not agree that such a protection clause be introduced in GC III. Thus the proposed paragraph 3 of draft Article 3 [GC III, Art. 4] was not retained.23 Instead the Conference essentially agreed upon what became the substance of Article 5 of GC III (i.e. protection as POWs for “persons resisting the enemy” until a competent tribunal determines their status). The second part of the latter proposal, which read: “Even in cases where the decision of the above-mentioned authorities would not allow these persons to benefit under the present Convention, they shall nevertheless remain under the safeguard and rule of the principles of International Law as derived
from the usages prevailing among civilized nations, of human rights and the demands of the public conscience”, was likewise not retained.24 In the end, the Danish delegate only asked as cited in the quotation below, for the Summary Record to mention that his view regarding interpretation of Article 3 had met with no objections.25 The Committee’s discussions were summarized as follows in the Report to the Plenary Assembly:
“Certain Delegations wished to extend the application of the Convention to cover still other categories of persons. They had particularly in mind civil- ians who had taken up arms to defend their life, their health, their near ones, their livelihood, under an attack which violated the laws and conditions of war and desired to ensure that such civilians falling into enemy hands should not be shot after summary judgment but should be treated according to the provisions or at least the humanitarian principles of the Convention. Numerous possible solutions of this problem were carefully considered but in the end a majority of the Committee came to the conclusion that it would be difficult to take the course proposed without the risk of indirectly weak- ening the protection afforded to persons coming under the various cate- gories of Article 3 [GC III, Art. 4]. One Delegation pointed out, in particu- lar, that the acceptance of the proposed extension would be tantamount to rejecting the principles generally accepted at The Hague, and recognized in the Prisoner of War Convention. It was, according to the views of this Delegation, essential that war, even illegal war, should be governed by those principles. Nevertheless, another Delegation asked that the Summary Record should mention that no objections had been raised, during the dis- cussion in the Special Committee, against his view that Article 3 should not be interpreted in such a way as to deprive persons, not covered by the provi- sions of Article 3, of their human rights or of their right of self-defence against illegal acts.” 26
In the plenary debates on Article 5 of GC III (decision by a competent tribunal in case of doubt) the issue of persons not fulfilling the conditions to qualify as POWs, but participating nevertheless in hostilities (i.e. unlawful combatants), arose again. Captain Mouton (Netherlands), arguing in favour of
a court decision instead of a decision by a “competent authority”, claimed that the latter approach would mean “in practice that (...) the military commander on the spot ... decides whether a person who has fallen into his hands comes under Article 3 [GC III] or does not belong to Article 3. (...) It means that if he decides that he does not belong to Article 3 he will be considered to be a franc tireur and be put against the wall and shot on the spot.”
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From the previous link provided ;--)