by oldedude on October 27, 2023 1:33 pm
Curt- Good lead post for a good thread. I think I'm going to take one paragraph at a time. Your questions are good enough I think they each demand consideration.

If Hamas is the former, then we should hold Hamas and the Israeli government to the same standards. If they are the latter, them we should hold Israel to a higher standard.
I have said my peace about Hamas. They do NOT follow the rules of a Privileged Combatant. They do however qualify for Unprivileged combatants. That does some things to your equation.

Privileged combatants
The following categories of combatants qualify for prisoner-of-war status on capture:

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.
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 they fulfill 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.
Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war; often dubbed a levée after the mass conscription during the French Revolution.

For countries which have signed the "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts" (Protocol I), combatants who do not wear a distinguishing mark still qualify as prisoners of war if they carry arms openly during military engagements, and while visible to the enemy when they are deploying to conduct an attack against them.

Unprivileged combatants
There are several types of combatants who do not qualify as privileged combatants:

Combatants who would otherwise be privileged but have breached the laws and customs of war (e.g., feigning surrender or injury or killing enemy combatants who have surrendered). The loss of privileges in that case only occurs upon conviction, i.e. after a competent court has determined the unlawfulness of the conduct in a fair trial.

Combatants who are captured without the minimum requirements for distinguishing themselves from the civilian population, i.e. carrying arms openly during military engagements and the deployment immediately preceding it, lose their right to prisoner of war status without trial under Article 44 (3) of Additional Protocol I.

Spies, i.e. persons who collect information clandestinely in the territory of the opposing belligerent. Members of the armed forces conducting reconnaissance or special operations behind enemy lines are not considered spies as long as they wear their uniform.

Mercenaries,[5] child soldiers, and civilians who take a direct part in combat and do not fall into one of the categories listed in the previous section.[6][7]

Most unprivileged combatants who do not qualify for protection under the Third Geneva Convention do so under the Fourth Geneva Convention (GCIV),[8] which concerns civilians, until they have had a "fair and regular trial". If found guilty at a regular trial, they can be punished under the civilian laws of the detaining power.