#17205 - International Humanitarian Law Combatants And Civilians -

For treaties, I have used an abbreviation, followed by a period and the article number. Thus Geneva Convention IV, Article 42 becomes “GC4.42.” Article 2 Common to the Geneva Conventions becomes GC.CA2. The Hague Regulations are HR, and the Protocols Additional to the Geneva Conventions are AP1 & AP2.

Citations in the form “HB000” refer to section numbers in Fleck, The Handbook of International Humanitarian Law (3rd ed.).

I’ve also cited certain academic articles, commentaries and government documents:

ILA-Sydney refers to the International Law Association’s 2018 Sydney Conference Report on the Use of Force.

Sassòli refers to Marco Sassòli’s 2015 article “Combatants” in the Max Planck Encyclopedia of Public International Law.

DoD refers to the US Department of Defense Law of War Manual (Dec. 2016 Update).

ICRC guidance on civilians directly participating in hostilities refers to Nils Melzer (ICRC) Interpretive Guidance (2009).

Lubell refers to Noam Lubell, “Fragmented Wars: Multi-Territorial Military Operations Against Armed Groups” 93 International Legal Studies 215 (2017).

**This is all IAC stuff, not NIAC, which does not have combatant status**

A.— 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:

[combatant] 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.
[combatant] 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: [conjunctive]
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.
[combatant] Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
[civilian] Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card.
[civilian] Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
[combatant] 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.

B.— The following shall likewise be treated as prisoners of war under the present Convention:

Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them … made an unsuccessful attempt to rejoin the armed forces to which they belong… or where they fail to comply with a summons…
The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law …

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.
Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33of GC3) are combatants, that is to say, they have the right to participate directly in hostilities.
Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

Any combatant, as defined in Article 43, who falls into the power of adverse Party shall be a prisoner of war.
Violations of LOAC shall not deprive a combatant of his right to be a combatant or prisoner of war, except as provided in paragraphs 3 and 4.
[distinction and exceptions]
A combatant who forfeits right to be PoW shall nevertheless be given protections equivalent in all respects to those accorded to prisoners of war by GC3 and AP1, including protections equivalent to those accorded by GC3 to PoWs tried and punished for any offences committed.
Any combatant captured while not engaged in an attack/military operation preparatory to an attack shall not forfeit his rights to be a combatant and PoW by virtue of his prior activities.

(6)-(8)

Under GC3.4(A):
- (1) members of state armed forces.
- (2) members of militias, volunteer corps, and organized resistance movements, provided they fulfill all the following conditions: responsible command; distinctive sign; carry arms openly; obey laws of war.
  - [These conditions are collective. Even if an individual fulfills, he is not combatant unless the group generally fulfills. If individual does not fulfill, also not combatant (Sassòli).]
- (3) members of regular armed forces of government/authority not recognized by detaining power.
- (6) Levée en massers.
  - [Unique situation where combatant status can be gained by action.]
Under AP1.43:
- (1) all organized armed forces, groups and units under responsible command.
- (2) members of armed forces of party to conflict.
Combatant privilege
- PoW status if captured; cannot be tried in domestic courts for activities legal under IHL.
  - There is no combatant privilege in NIAC.
- Conscripted armies are treated the same as volunteer armies under IHL. Foreign fighters may be part of a state’s armed forces.
Obligations
- IHL requires states to clarify who belongs to armed forces in their domestic law.
  - States also have a peacetime obligation to train their soldiers in IHL.
- Must distinguish selves from civilians with uniform/emblem; bear arms openly; be under responsible command; obey laws of IHL. This is all CIL [Sassòli].
  - If, at the time of capture by enemy, combatants individually fail to distinguish themselves from civilians, they lose combatant and PoW status, but they get protections equivalent to those of a PoW. Not based on previous actions [AP1.44].
  - AP1.44(3) limits requirement to distinguish self while engaged in attack or military operation preparatory to an attack, provided they carry arms openly.
  - Failure to distinguish self is perfidy, which is prohibited if it results in an enemy’s killing, injury (under CIL) or capture (under AP1.37). If combatants commit war crimes, they don’t technically lose combatant status, but they can and must be prosecuted for those crimes [HB311].
- Can be targeted or attacked at any time.
In case of doubt, a person shall be considered a civilian (AP1.50(1)). But a person who has “committed a belligerent act” must be presumed a PoW until “their status is determined by a competent tribunal” (GC3.5).

These are not the same as civilians. It’s persons who are members of armed forced, but by virtue of national legislation do not have a combat role (e.g., judges, government officials, blue collar workers) [HB 314].
They are members of the armed forces, treated by IHL in every way the same as regular combatants [HB 314].
- AP1.43(2): As far as IHL goes, so long as they are members of the armed forces under domestic law, it doesn’t matter if the state’s...

#17205 - International Humanitarian Law Combatants And Civilians - International Humanitarian Law / Law of Armed Conflict

About Oxbridge

More International Humanitarian Law / Law Of Armed Conflict Samples