Last updated on: 6/12/2008 8:51:00 AM PST
What is the difference between an enemy combatant, an unlawful combatant, and a prisoner of war?


General Reference (not clearly pro or con)
The Military Commissions Act of 2006, passed by Congress on Jan. 3, 2006 and signed into law by President Bush on Oct. 17, 2006, stated:

"The term 'lawful enemy combatant' means a person who is:
  1. a member of the regular forces of a State party engaged in hostilities against the United States;
  2. a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
  3. a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.

The term 'unlawful enemy combatant' means:

  1. a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
  2. a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Oct. 17, 2006 - The Military Commissions Act of 2006 (130 KB)  

Article IV of the Aug. 12, 1949 Geneva Convention defined "prisoner of war" with the following criteria:

"Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

  1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
  2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
    1. That of being commanded by a person responsible for his subordinates;
    2. That of having a fixed distinctive sign recognizable at a distance;
    3. That of carrying arms openly;
    4. That of conducting their operations in accordance with the laws and customs of war."

Aug. 12, 1949 - Geneva Convention (135 KB)  

William J. Haynes II, JD, General Counsel of the US Department of Defense, wrote in a Dec. 12, 2002 memo to the Council on Foreign Relations:

"'Enemy combatant' is a general category that subsumes two sub-categories: lawful and unlawful combatants...Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention.

The President has determined that al Qaida members are unlawful combatants because (among other reasons) they are members of a non-state actor terrorist group that does not receive the protections of the Third Geneva Convention. He additionally determined that the Taliban detainees are unlawful combatants because they do not satisfy the criteria for POW status set out in Article 4 of the Third Geneva Convention."

Dec. 12, 2002 - William J. Haynes, II, JD 

W. Hays Parks, JD, Defense Department Attorney and Former Special Assistant to the Army Judge Advocate General (JAG), in an Apr. 7, 2003 Department of Defense Briefing on Humane Treatment of Iraqi and US POWs Under Geneva Convention, stated:

"The fundamental difference between an unlawful combatant and the prisoner of war is that a regular soldier, if he kills an enemy soldier, has committed a lawful act. An unlawful combatant, by its term, suggests that this person did not have authority to go onto the battlefield and engage in the killing of enemy soldiers or the attack of military property."

Apr. 7, 2003 - W. Hays Parks, JD