Report IHL

(c) Ibonia, Simondo, Torrato (2014)

The Fundamental Distinction between Civilians and

Combatants

ANNA LYDIA IBONIAMARK JOHN SIMONDO

LEANNE MARIE TORRATO


Who are civilians? A civilian is any person who does not belong

to one of the categories of persons referred to in Article 4 A 1), 2), 3) and 6) of the Third Convention and in Article 43 of Additional Protocol 1

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. (Art 43, AP1)


Civilians are persons who are not: 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

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

4) 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 (Art 4, GCIII)


Activities and activities Civilians DO NOT take a direct part in the

hostilities Combatants have the right to take part in the

hostilities


When Punishable

Civilians Combatants May be punished for

their mere participation in the hostilities

May not be punished for their mere participation in the hostilities


Direct Participation in hostilities threshold of harm -the act must be likely to adversely affect the

military operations or military capacity of a party to an armed conflict

direct causation direct causal link between the act and the

harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part


Belligerent Nexusthe act must be specifically designed to directly

cause the required threshold of harm in support of a party to the conflict and to the detriment of another


Protection

Civilians Combatants Are protected

because they do not participate:

as civilians in the hands of the enemy

against attacks and effects of hostilities

Are protected when they no longer participate:

if they have fallen into the power of the enemy

if wounded, sick or shipwrecked

if parachuting out of an aircraft in distress

are protected against some means and methods of warfare even while fighting


Full Complementarit

y


Full Complementarity

Is everyone who is not a combatant a civilian?

Is there an intermediate category of unlawful combatant?


Unlawful Combatants Those who do not fall into the category

combatants are, be definition, civilians. There is no third category of unlawful combatants.- Professor Cassese

HOWEVER, a civilian who participates in combat activities loses protections granted to him and may be a legitimate military target.


Unlawful Combatants Not explicitly referred to in IHL treaties

Refers to civilians who have directly participated in hostilities in an international armed conflict without being members of the armed forces as defined by IHL and who have fallen into enemy hands


Unlawful Combatants Generally, civilians enjoy immunity from

attack UNLESS and for such time as they take a direct part in hostilities, civilians– as opposed to combatants– may also be criminally prosecuted under domestic law for the mere fact of having taken part in hostilities

“unprivileged belligerents” or “unlawful combatants”


Direct Participation in Hostilities To engage in a specific attack or attacks on

an enemy combatant or object during a situation of armed conflict

Article 49 (1) AP I: “Attacks” mean acts of violence against the adversary, whether on offence or defence


Unlawful Combatants In Enemy Hands:

First school of thought: Unprivileged belligerents are covered only by the rules contained in Article 3 common to the four Geneva Conventions

Article 75 of AP I, applicable either as treaty law or customary law


Unlawful Combatants Second school of thought:

Shared by the ICRC

Civilians who have taken direct part in hostilities and who fulfill the nationality criteria set out in the fourth Geneva Convention (Article 4) remain protected persons within the meaning of that Convention


Israel Targeted Killings Case Unlawful combatants are:

People who take active and continuous part in armed conflict

Should be treated as combatants in the sense that they are legitimate targets of attack

They do not enjoy protections granted to civilians

Not entitled to status of POW


Israel Targeted Killings Case Basic Principle: Civilians taking a direct part in

hostilities are not protected as such at the time they are doing so

The Red Cross Manual similarly states: “Civilians are not permitted to take direct part in hostilities and are immune from attack. If they take a direct part in hostilities they FORFEIT THIS IMMUNITY.”


Fundamental Obligation of Combatants to Distinguish Themselves from Civilian

Population


Rule 106. Combatants must distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. If they fail to do so, they do not have the right to prisoner-of-war status.


Additional Protocol I imposes the obligation to distinguish oneself from the civilian population on all members of armed forces, whether regular or irregular.

Additional Protocol I recognizes “the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict”, although the Protocol, like the Hague Regulations and the Third Geneva Convention, does not explicitly make this a condition for prisoner-of-war status.


State practice indicates that in order to distinguish themselves from the civilian population, combatants are expected to wear a uniform or a distinctive sign and must carry arms openly.

Participants in a levée en masse, namely the inhabitants of a country which has not yet been occupied who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having time to form themselves into an armed force, are considered combatants entitled to prisoner-of-war status if they carry arms openly and respect international humanitarian law.


According to Additional Protocol I, in situations of armed conflict where “owing to the nature of the hostilities an armed combatant cannot ... distinguish himself” from the civilian population while he is engaged in an attack or in a military operation preparatory to an attack, he shall retain his status as a combatant, provided he carries his arms openly:

(a) during each military engagement, and(b) during such time as he is visible to the

adversary while he is engaged in a military deployment preceding the launching of an attack

in which he is to participate.


Article 44 of Additional Protocol I 3. In order to promote the protection of the civilian population from the

effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities anarmed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

(a) during each military engagement, and

(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1


Pius Nwaoga v. The State The appellant was convicted for murder of the

deceased who was also a soldier in rebel forces and a native of the appellants hometown. The appellant argued that he was following orders when the deceased was killed and the learned trial Judge had held that it was an illegal regime. The learned judges in making their judgement relied on a passage from Oppenheim's International Law, 7th Edition volume II at p. 575, dealing with War Treason. Appellants conviction was upheld and appeal was dismissed.


Osman v. Prosecutor The appellants were two members of the armed forces of Indonesia who

planted a bag containing nitroglycerine in a non-military building in Singapore. The explosion caused the deaths of three persons. The two soldiers were later arrested wearing civilian clothing and without identity cards. They were charged with the murder of the three civilians. At their trial, they claimed to be members of the Indonesian armed forces and entitled to the protection of the Third Geneva Convention. The trial judge rejected the claim, convicted them of murder and sentenced them to death. Their appeals to the Federal Court of Malaysia were dismissed. The Judicial Committee of the Privy Council confirmed the decision of the Federal Court. It held that, assuming that there was an armed conflict between Indonesia and Malaysia and that the Geneva Conventions therefore applied in Singapore, members of armed forces who committed acts of sabotage and were arrested while dressed in civilian clothes were not entitled to be treated upon capture as prisoners of war. As the Committee had reached the decision that the appellants could not claim the right to be treated as prisoners of war, it declined to decide whether the attack on a non-military building in which there were civilians was a breach of the laws and customs of war by virtue of which they had forfeited their right to be treated as prisoners of war.


Relativity of Distinction in Modern Armed

Conflict


Relativity of Distinction in Modern Armed Conflict Guerilla Warfare- Combatants mix with and disguise as civilians - Example: Albanian Paramilitary (UCK)

members dispersed among demonstrators and shot at security forces (Yugoslavian conflict)


Wars of Extermination Civilians become the object of the attack Example: The Conflict in the Great Lakes

Region-Many Tutsi and even moderate Hutu civilians were directly targeted by Hutu extremists

-The civilians were targeted, in many cases, solely because of their membership to a certain ethnic group and for no other objective reason


The War on Terror In the Conduct of Hostilities

Can they be attacked until they are hors de combat or only while they directly participate in hostilities?

To say that a global international war is being waged against groups such as Al-Qaeda would mean that, under the law of war, their followers should be considered to have the same rights and obligations as members of regular armed forces.


The War on Terror Once in Enemy Hands

Are they protected civilians or can they be detained like combatants without any individual decision, but not benefit from POW status?

Distinguish IAN and NIAC


The War on Terror

No nation would contemplate exempting members of non-state armed groups from criminal prosecution under domestic law for acts of war that were not prohibited under international law– which is the crux of combatant and POW status


Civilianization of Armed Conflicts Private Military and Security Companies

(PMSC) -PMSC staff normally do not fall under the very

restrictive definition of mercenaries in IHL. Most of them are not de jure or de facto

incorporated into the armed forces of a party and are therefore not combatants but civilians.

As civilians, PMSC staff may not directly participate in hostilities


Certain Guidelines There is direct participation in hostilities if: -if they defend combatants or military

objectives against the adverse party -If those objects, transports or persons

guarded by PMCS personnel are not protected against attacks in IHL (combatants, civilians directly participating in hostilities), guarding or defending them against attacks constitutes direct participation in hostilities


There is no direct participation if: They defend military targets against common

criminals They defend civilians and civilian objects

against unlawful attacks Resist attackers not belonging to a party to

the conflict


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