#11456 - Status Of Individuals - International Humanitarian Law

Combatants

1. Definition

   1. GCIII:4

      1. Regular army (“members of the armed forces of a party to the conflict, as well as members of militia or volunteer corp making up those armed forces”)

      2. Others meeting the following criteria

         1. Responsible command

         2. Fixed distinctive sign/insignia that is recognizable at a distance

         3. Carries arms openly

         4. Follows IHL

2. Benefits of being a combatant

   1. Can participate in hostilities with immunity

   2. Entitled to POW status (related to idea of immunity)

3. Downsides

   1. Can be targeted (military objective)

   2. May be detained for duration of conflict

      1. Note: civilian internees may also be detained in occupied territory if they pose threat to security (GCIII: 78)

Lawful Beligerants

1. Term of art used by the ICRC

2. Analogous with combatant

Unlawful Combatants

1. US post-911 phrase

2. Not found in treaty law or literature

3. ICRC would call these people “unprivileged beligerants.”

4. In re Quirin (1940s)

   1. Deals with spies without uniform, whose purpose was sabotage. Violated the law of war and were therefore “unlawful enemy combatants.”

   2. Result: sent to military commission. No right to jury trial.

Civilians

1. Definition

   1. GCIV:4

   2. “the people not protected by the first 3GCs” (non-POWs)

Civilian Directly Participating in Hostilities

1. API: 51(3) – “civilians shall enjoy the protection afforded by this section unless and for such time as they take a direct part in hostilities.”

   1. But API still entitltes them to POW status.

   2. But on KJ’s exam she says it is false that civilians who DPH should be treated as POWs if captured. Why?

      1. Unlawful combatants

      2. Unprivileged belligerents

      3. Non-State terrorist group

      4. Criminal organization

2. Principle of distinction is becoming more difficult to apply as war becomes more confusing.

   1. Possible actors:

      1. Security contractors/ private companies

         1. Initially – if they directly participate, they lose protection

         2. 2008 Montreaux Document – reaffirms that states have to ensure the compliance of their contractors with IHL.

      2. Civilian employees of the state (CIA, etc)

      3. Others

3. 2 different approaches to question DPH

   1. ICRC Primary Acts Test (Interpretive Guidance, 2009)

      1. Higher requirement for legitimate targeting.

      2. 3 elements: (pg 46)

         1. Threshold of harm: Act must be likely to adversely effect military operation, or alternatively to inflict death/destruction on persons. Attempt is enough.

         2. Direct causal link: between act and harm likely to result, either from that act or from coordinated military operation of which that act constitutes a necessary part

         3. Belligerent nexus: act must be specifically designed to directly cause the required threshold of harm (you can’t just be in a war mugging someone)

      3. Result: less chance of killing civilian by mistake, less chance of successfully targeting civilian that’s actively participating

   2. Membership Model (Totality of Circumstances)

      1. ICRC calls this the “continuous combat function.”

      2. Allows for targeting for the duration of the membership in the continuous combat function

      3. Gets at ‘revolving door’ problem

         1. Israeli SC and US approach

            1. Israeli targeted killing case

         2. ICRC reluctantly acknowledges that this is an approach

         3. More likely to kill innocent civilians because there are a lot of incomplete factors (unknown information) & you don’t know when someone left the group (ended their membership)

4. Subset of DPH: targeted killing

   1. No official definition: intentional killing by a state of a specific civilian who cannot reasonably be apprehended and who is directly participating

      1. O’Connel stresses: away from battle zone

   2. Example: Israeli targeted killing case

      1. Israeli government doesn’t want IHL to apply. Argue that GCIV doesn’t apply to occupied territories.

      2. HOLDINGS:

         1. GCIV does apply.

         2. Terrorists are civilians. Can only be targeted if they are directly participating.

         3. broadens DPH definition from API – expands both “direct part” and “time” requirements. Court finds API is CIL (Israel hasn’t ratified APs)

            1. “DIRECT” activities

               1. Fighting (voluntary or operating as human shields)

               2. Planners and senders

               3. Harboring fighters

               4. Leaders

            2. Not DIRECT activities

               1. Giving money

               2. Offering medicine

               3. Putting info on your website

               4. Distributing propaganda

            3. Time period

               1. Membership Model (differs from sporadic involvement)

                  1. Questions to consider: How would we know if they don’t want to be a member anymore? How might the court’s decision apply in non-terrorist situations?

                     1. Example: Rachel...