Wounded and Unknown: Treatment and Release Procedures for "Unprivileged Belligerents"

How the Law of War, U.S. doctrine, and International Humanitarian Laws govern wounded persons of unclear status.

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NOTE: This article was previously published on Banner & Backbone Media, and is republished here exactly as it first ran. We haven’t altered a word—all brilliance belongs entirely to the original authors. We’re honored to help amplify outstanding work like this and share vital voices with our community.

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by Nick Paro, Melissa Corrigan, Evan Fields & Kristofer Goldsmith

Introduction

Before we get into the article itself, I want to give myself a brief introduction so you can understand where I come from as an author. I’m Nick Paro, a former US Army Sergeant trained as a Human Intelligence Collector with advanced training in Interrogation & Analysis Techniques. I deployed to Afghanistan in 2014 for Operation Enduring Freedom, where I supported initial interviewing for on-base access privileges and initial field processing for biometric and identification collection of detained combatants/unprivileged belligerents. I have been trained on how to handle, process, and manage detainees (or detained persons) during an armed conflict.

• 🗒️ Note: It is important to note that the U.S. is not currently in a validly defined or declared Armed Conflict. The Executive Branch has stated that an “Armed Conflict” has begun between the U.S. and Caribbean Cartels; however, there has been no Congressional approval or appropriation of funds for a legally declared Armed Conflict or War.

When the Secretary of Defense, Pete Hegseth, and the Trump regime are using phrases like “no survivors,” the danger isn’t just the people on the receiving end of the strike – it’s to the country giving the order. Democracies don’t usually fall in one dramatic moment; they erode when leaders drag the public across moral thresholds they once would have recognized as unthinkable. Calling fishermen “narco terrorists” and “enemy combatants” doesn’t change the fact that the deliberate killing of wounded, helpless people marks a point of no return.

If we allow that to become normal, then the rule of law becomes optional, accountability becomes irrelevant, and violence becomes a political branding exercise instead of a last resort. That is why this conversation matters – why how we treat detained combatants and unprivileged belligerents matters. Before we talk about doctrine, we have to understand the emotional stakes: if we don’t uphold the standards that restrain state violence, then the state we’re left with won’t be one worth defending.

The primary goal of this article is to help all of us — the everyday citizen — understand the complexities of modern armed conflicts, where the lines are often blurred between combatants, Unprivileged Belligerents (UBs), and civilians. This can be particularly difficult for persons who are assumed to belong to non‑state groups, those who wear civilian clothes, or attackers of unknown affiliation. These persons often pose acute legal and moral challenges when wounded or captured.

This article explains the legal framework — drawing on the Geneva Conventions, customary International Humanitarian Law (IHL), and the U.S. Department of Defense Law of War Manual (DoDLoM) — for how wounded persons of uncertain status (so‑called unprivileged belligerents) must be treated, detained, and ultimately released.

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Classifications of Persons

Before diving into the handling and care of UBs, let’s first clarify what it means to be a civilian, UB, or combatant. The classifications of a person form the baselines for the decision making processes — for strategic and operational levels — and ultimately determine how a person is to be perceived during an armed conflict or war.

Civilian

A civilian is the default classification of a person — it is always the initial presumed status. This presumption of civilian status forces a Commander or other decision-maker to perform a form of due-process. The person must be proven (this does not go to the level of ‘reasonable double’ for evidence as would be needed in a normal civilian court) to be a non-civilian before they can be engaged as a combatant.

Governing Policies

DoD Law of War Manual (§4.4.1)

“Civilians are persons who are not combatants.” (Source: DoD Law of War Manual)

DoD Law of War Manual (§4.4.2)

“Civilians may not be made the object of attack unless and for such time as they take a direct part in hostilities.” (Source: DoD Law of War Manual)

DoD Law of War Manual (§5.4.3.2)

“In case of doubt whether a person is a civilian, the person shall be considered a civilian.” (Source: DoD Law of War Manual)

Unprivileged Belligerent, Unlawful Combatant, Unknown Actor

A UB is the status gray area between a civilian and a combatant in a situation where the lines between civilian and combatant are blurred. One simple example is a spy — someone who wears civilian clothing, does not directly identify with a party of the conflict, and regains privileged combatant status upon returning to friendly lines.

Governing Policies

DoD Law of War Manual (§4.3)

Unprivileged belligerents may generally be classified into two categories that may be distinguished from one another by the presence or absence of State authorization:

• persons who have initially qualified as combatants (i.e., by falling into one of the three categories mentioned above), but who have acted so as to forfeit the privileges of combatant status by engaging in spying or sabotage;

• persons who never meet the qualifications to be entitled to the privileges of combatant status, but who have, by engaging in hostilities, incurred the corresponding liabilities of combatant status (i.e., forfeited one or more of the protections of civilian status).

(Source: DoD Law of War Manual)

DoD Law of War Manual (§5.4.3.2)

“In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” (Source: DoD Law of War Manual)

DoD Law of War Manual (§5.3.3)

“Positive identification of military objectives is required before conducting an attack.” (Source: DoD Law of War Manual)

This simplifies down to an unidentified person is not a valid target unless positive identification is established — presumption of innocence.

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Combatant

A combatant is a person who may engage in hostilities, are liable to being made the object of an attack, and have met the positive identification criteria of being a:

• Members of the armed forces of a party to the conflict — these are known uniformed service members.

• Authorized to participate in hostilities — this excludes medical personnel and chaplains because they do not have the right to directly participate in hostilities.

• Entitled to combatant immunity.

Combatants are obligated to conduct themselves in accordance with the Law of War and have the right to POW status if they are captured by an enemy during an international armed conflict.

Governing Policies

DoD Law of War Manual (§4.3.3)

4.3.3 Types of Lawful Combatants. Three classes of persons qualify as “lawful” or “privileged” combatants:

• members of the armed forces of a State that is a party to a conflict, aside from certain categories of medical and religious personnel;

• under certain conditions, members of militia or volunteer corps that are not part of the armed forces of a State, but belong to a State;

• inhabitants of an area who participate in a kind of popular uprising to defend against foreign invaders, known as a levée en masse.

(Source: DoD Law of War Manual)

DoD Law of War Manual (4.4.1)

In general, combatants may engage in hostilities and may be made the object of attack by enemy combatants. However, combatants placed hors de combat must not be made the object of attack. Combatants must conduct their operations in accordance with the law of war …. Combatants may make enemy combatants and other military objectives the object of attack, but may not make the civilian population and other protected persons and objects the object of attack. (Source: DoD Law of War Manual)

The Legal Baselines

Because the U.S. is not in a legally declared state of War or Armed Conflict — the presumption is that all UBs are civilians, not armed combatants. The U.S. Military functions on a system of strict rules and regulations which must be adhered to prior to deadly force being legally authorized.

Treaty and Customary Obligations

At the core of IHL (International Humanitarian Law) there is an unconditional duty to care for the wounded with strict prohibitions on attacking persons hors de combat — a French term meaning a person is put “out of combat” by sickness, wounds, detention, or any other cause. Common Article 3 and the treaties that protect the wounded—even where parties or affiliations are murky—set minimum standards that bind all parties. Customary rules such as the International Committee of the Red Cross (ICRC) Rule 47 reinforce that wounded or incapacitated persons must not be targeted and must receive medical care.

Practical implication: regardless of whether someone is a lawful combatant, an unprivileged belligerent, or a civilian, a medical need always governs immediate action.

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Governing Policies

Geneva Conventions — Common Article 3

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. (Source: IHL Geneva Conventions - Common Article 3)

Common Article 3 guarantees humane treatment for non‑combatants and those hors de combat in non‑international conflicts. Strictly speaking, this ensures that all wounded persons are treated equally and with appropriate medical care as if that individual was one of our own service members. During this process, the Military maintains strict record keeping and documentation to ensure all detained persons are treated appropriately.

Geneva Convention III - Article 19 (POW evacuation)

Only those prisoners of war who, owing to wounds or sickness, would run greater risks by being evacuated may be temporarily left. (Source: IHL Geneva Convention III - Article 19)

Wounded POWs who cannot safely be evacuated may remain temporarily where they are (with appropriate care). This means that special care must be taken to ensure wounded, non-threatening persons are not accidentally or purposefully further harmed.

Additional Protocol I - Article 41 (hors de combat)

Attacking persons who are recognized as hors de combat is prohibited. A person hors de combat is:

• (a) anyone who is in the power of an adverse party;

• (b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or

• (c) anyone who clearly expresses an intention to surrender;

provided he or she abstains from any hostile act and does not attempt to escape. (Source: ICRC Customary IHL - Rule 47)

Customary IHL independently prohibits attacks on those out of combat, this is intended to further reinforce treaty rules preventing the harm of those incapable of fighting.

U.S. Doctrine: The DoD Law of War

The DoD Manual treats UBs as liable to capture and detention, but insists they receive humane treatment. Notably, when there is doubt about status at capture, the Manual requires granting POW protections until a competent tribunal decides otherwise. Operationally, this boils down to the core components of:

• Units must document captures

• Units must provide medical care

• Units must initiate status‑determination procedures while safeguarding force protection.

Practical Implication: These operational steps provide an easily understood and repeatable process for properly handling in-processing, medical care, and detainment procedures of any captured person.

Governing Policies

DoD Law of War Manual — status doubt

That person should enjoy POW protections until their status is assessed by a competent tribunal. (Source: DoD Law of War Manual - status doubt)

Where a detained person’s status is unclear, the DoDLoW requires granting POW-level protections until a formal status determination can be made. This decision requires multiple layers of approvals, public documentation, and is subject to Congressional review and oversight.

DoD Law of War Manual (§4.19) — treatment of unprivileged belligerents

Unprivileged belligerents... must be treated humanely. (Source: DoD Law of War Manual (§ 4.19) - treatment of unprivileged belligerents)

Even if the unidentified persons are not entitled to POW privileges, the UBs are still protected by fundamental humane-treatment obligations and are subject to the regulations in our additional treaties through the Geneva Conventions and other applicable IHL.

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In Practice

Wounded Unprivileged Belligerents

Field operators — service members who are on-the-ground and actively engaged in the “field” — must balance medical ethics and force protection. The immediate requirement is to stop hostilities as to the wounded, render aid, and arrange evacuation.

Security measures — such as restraint during treatment — are permitted, but must be the minimum required.

Evacuation standards mirror POW evacuation rules: a wounded person who cannot safely be moved may be treated in place until evacuation is feasible, once evacuation becomes feasible — the wounded person must then be moved for further treatment and processing.

Governing Policies

DoD Law of War Manual (§4.19) — treatment of unprivileged belligerents

Unprivileged belligerents... must be treated humanely. (Source: DoD Law of War Manual (§ 4.19) - treatment of unprivileged belligerents)

Geneva Convention I — Article 10

1. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected.

2. In all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones. (Source: IHL Geneva Convention I - Article 10)

Wounded and sick persons are to be respected and protected regardless of affiliation; there is an obligatory need for medical care to be provided.

Detention, Release, & Legal Review

UBs can be detained for the duration of hostilities to prevent further participation in hostilities, but must be released when hostilities end unless another legal basis exists (e.g. a criminal conviction). Medical fitness is decisive: a wounded UB cannot be released into a condition where adequate care is not provided. The use of status-determination tribunals play a pivotal role where doubt exists. These reviews create a record trail that includes biometric and important details concerning the UB and ensures all sub-policies are followed when managing the treatment of the detained UB.

Governing Policies

Geneva Convention I — Article 10

1. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected.

2. In all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones. (Source: IHL Geneva Convention I - Article 10)

A Practical Determination of Status Flow

The following is a straightforward, simple recommended flow for practically determining the status of a detained person:

1. cease attack if wounded or surrendering

2. secure and triage

3. evacuate

4. document capture/detention

5. grant POW protections until status resolved; detain or release based on findings and medical fitness

6. Record keeping and notification (e.g., to ICRC or protecting powers, where applicable) are critical for transparency and compliance.

Governing Policies

DoD Law of War Manual — status doubt

That person should enjoy POW protections until their status is assessed by a competent tribunal. (Source: DoD Law of War Manual - status doubt)

DoD Law of War Manual (§4.19) — Treatment of Unprivileged Belligerents

Unprivileged belligerents... must be treated humanely. (Source: DoD Law of War Manual (§ 4.19) - treatment of unprivileged belligerents)

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The Results

The UB category creates both a legal and ethical gray zone — which requires convening a competent military tribunal to assess and determine the correct legal status of the persons — however, this gray zone becomes almost nonexistent when outside of a legally authorized armed conflict.

First, the U.S. is not in an authorized armed conflict – making any strike an unlawful killing and all subsequent handling of detained persons as temporary imprisonment without due process.

Second, the concept of indefinite detention during a protracted asymmetric conflict raises questions about due process and proportionality of force & detention.

Moreover, the U.S. DoDLoW’s recent updates (July 2023) reflects an evolving position on presumptions of civilian status — affecting how forces evaluate various types of “ambiguous actors”.

In context, all of this provides a basis for a rigid set of rules and practices which need to be strictly adhered to when it comes to making the decisions of categorizing persons as civilian, unprivileged belligerent, or an enemy combatant; how those persons are to be handled and treated based on their specific status; and what documentation is required to be created and maintained in order for proper internal Military and Civilian reviews.

With all of this said — and with the original assessment that the U.S. has not officially authorized an armed conflict or war — the regulations become even more restrictive to prevent any unlawful killings of civilians. With the previously described regulations and legally-ambiguous nature of the declared, yet non-authorized armed conflict in mind — I can say, with a very high degree of certainty and confidence that the October strike which led to the temporary detainment and subsequent repatriation of 2 survivors appears to have not followed the necessary requirements for properly handling UBs. There are serious legal ramifications, with very severe penalties, which can and will result from these actions — accountability is coming.

~ Nick Paro, VALERIUS

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Actions You Can Take

Call your public servants on important issues:

• 5calls.org

Join the efforts to unmask law enforcement and feed America:

• safedc.info

Sign the Move-On Petitions:

• Investigate Presidential Use of the Autopen for Pardons and Executive Actions

• A Petition to End the Shutdown and Restore Representation: Remove Speaker Johnson

• Mandate that ICE agents show their face and identification

Service members can get un-biased information on legal vs illegal orders:

• Orders Project