CHAPTER 1 INTRODUCTION
2.9 Combatant status under Additional Protocol of 1977
It became apparent that irregular forces found it especially difficult to comply with the stringent criteria set out in GC III article 4(A)(2), prompting some to label the GC III article 4(A)(2) requirements unworkable188. At the same time, there was an increased appreciation (based upon the right to self
determination), that those individuals fighting wars of national liberation were entitled to international recognition and IHL protections189. When the ICRC convened a diplomatic conference in the 1970s on IHL applicable in armed conflict190, the issue of relaxing the requirements for combatant status for
‘freedom fighters’ was at the top of the list191. The conference was tasked with
‘fashioning new rules applicable to irregular forces that would strike a compromise’192 between the two distinct legal regimes which characterised the Geneva Conventions, thereby creating ‘a single and non-discriminatory set of rules applicable to all combatants regular and irregular alike… and to provide presumptions and procedures to prevent abuse of the exceptions’193.
The compromise is reflected in API, articles 43-47, under the heading
‘combatant and POW status’. At the heart of API is the recognition that in modern warfare, irregular armed groups are comprised of mostly part time fighters. In essence these articles aim to ‘relax the rigid requirements of the Hague and the Geneva standards sufficiently, to provide guerillas a possibility of attaining privileged combatant status without exposing the forces fighting them to the danger inherent in the use of civilian disguise in order to achieve surprise’194.
i. Defining ‘armed forces’
In article 43(1) we find a new definition of ‘armed forces’195, described as
188 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 16.
189 AP I article 1(4) and article 44(3).
190 The conference was tasked with drafting two additional protocols to the four 1949 Geneva Conventions. AP I was drafted to deal with international armed conflicts while AP II was limited in scope to non-international armed conflicts. Since this piece is focused on the combatant status of non-State groups in situations of international armed conflict, I shall restrict my subsequent discussions to the developments which arose in respect of AP I only.
191 Waldemar Solf ‘A Response to Douglas J Feith’s Law in the Service of Terror – the Strange Case of the Additional Protocol’ (1986) 20 Akron Law Review 26 at 272.
192 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 16.
193 Aldrich ‘Guerilla Combatants and Prisoner of War Status’ at 874.
194 Solf ‘A response to Douglas J Feith’s Law in the Service of Terror – the strange case of the Additional Protocol’ at 273.
195 Medical personnel and chaplains are specifically excluded from the application of AP I article 43(2).
‘all organised 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 recognised by the adverse Party. Such armed forces shall be subject to the internal disciplinary system which, inter alia, shall enforce
compliance with the rules of international law applicable in armed conflict’.
In essence what this new activity or functionality196 based definition of the armed forces achieved, was to do away with the previous ‘distinction between regular and irregular voluntary corps, militia and other organised groups (that existed in the HR and GC III)’197, thereby widening ‘the scope of actors’ who are afforded combatant status198. Unlike the previous199 membership based regime, now ‘an indirect or implicit relationship between a non-State entity and the State party’ is sufficient to establish combatant status200. The six onerous
‘rules for combatant status’ previously set out in GC III were replaced by two conditions:
‘1. responsible command under a party to the conflict and, 2. behaviour in accordance with the laws of war’201.
As Rogers points out: ‘it is a matter of organisation and discipline, which goes to the root of the definition of armed forces’202. A simple ‘factual enquiry’ into the existence of a ‘measure of organisation, a responsible command’, and ‘an internal disciplinary system which enforces the laws of war’203 is demanded of all combatants, not only irregular combatants.The relationship of belonging may ‘be officially declared, but may also be expressed through tacit
agreement or conclusive behaviour that makes it clear for which party the group is fighting’204. A key element is that irregulars must ‘conduct hostilities on behalf and with the agreement of that party’205. While previously it was simply assumed that the regular armed forces would operate under command responsibility, now it is ‘an express prerequisite for their falling within the definition of an armed force in terms of API’206. Now, in light of the new definition given in API, ‘all members of armed forces are put on equal
196 Richemond-Barak ‘Non-State Actors in Armed Conflict’ at 2509-17.
197 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 17.
198 Richemond-Barak ‘Non-State Actors in Armed Conflict’ at 2495-2502.
199 Which existed under HR and GC III.
200 Richemond-Barak ‘Non-State Actors in Armed Conflict’ at 2502-9.
201 Ibid.
202 Rogers ‘Unequal Combat and the Law of War’ at 14-15.
203 Fritz Kalshoven and Liesbeth Zegveld (2011) Constraints on the Waging of War: An Introduction to International Humanitarian Law (4th ed) Cambridge University Press:
Cambridge at 87.
204 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 18.
205 Ibid; ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 23.
206 Kalshoven and Zegveld Constraints on the Waging of War: An Introduction to International Humanitarian Law at 87.
footing’207, and no longer do irregulars have to prove ‘use of a uniform208, that they carried their arms openly209 or that they enjoyed political recognition’210. ii. Combatant and POW status
Article 43(2) then goes on to state that: ‘all members of the armed forces (other then the medical personnel and chaplains) are combatants having the right to directly participate in hostilities’, effectively clothing all these newly defined ‘armed forces’ with full combatant status. Not surprisingly, given the link between combatant and POW status, article 44(1) confirms that ‘any combatant (as defined by article 43), who falls into the power of the adverse party, shall be a POW’211. Consequently, there is no longer a burden on the irregular armed combatant to ‘disclose information pertaining to the structure of their group, the identity of his colleagues, or their compliance with the laws of war, in order to secure him his POW status’212. This provision effectively shifts the burden to the detaining power to justify their denial of POW status in such instances.
iii. The inviolability of combatant and POW status
Given the importance which attaches to POW status upon capture, API article 44(2) stipulates that:
‘while all combatants are obliged to comply with the rules of
international law applicable in armed conflicts, violation of these rules shall not deprive a combatant of his right to be a combatant, or… his right to be a POW’213.
This is a remarkable change from the regime which used to pertain to
irregular armed forces under GC III, where they were always at risk of losing their POW status, based on their failure to observe IHL214. Prior to API, ‘if a member of the regular armed forces was captured while participating directly in hostilities, and was not wearing the appropriate uniform, or if a militia or
207 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 18.
208 As Melzer points out, ‘visibility is no longer a collective defining element of the armed forces, but an individual obligation, the respect of which may be relevant for a member’s entitlement to POW status or combatant privilege, but not for his unit’s legal qualification as
“armed force of a party to the conflict”’ (Nils Melzer (2009) Targeted Killing in International Law Oxford University Press: Oxford at 307).
209 Kalshoven and Zegveld Constraints on the Waging of War: An Introduction to International Humanitarian Law at 87.
210 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 18.
211 Abraham ‘“Essential Liberty” Versus “Temporary Safety”: The Guantanamo Bay Internees and Combatant Status’ at 844.
212 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 19.
213 Except as provided in API article 44(3) and 44(4).
214 Christopher Greenwood (1991) ‘Customary Law Status of the 1977 Additional Protocols’ in Delissen JM Astrid and Tanja J Gerard (eds) Humanitarian Law of Armed Conflict:
Challenges Ahead T.M.C Asser Instituut / Martinus Nijhoff Publishers: Netherlands at 107.
voluntary corps member does not wear a permanent distinctive sign, then a breach of the duty of distinction and additionally a charge of perfidy would be considered’215.
Now, under the new API regime, once an individual is clothed with combatant status they cannot lose that status, even by actions prior to their capture which might have violated IHL216. Moreover, all armed forces are held to the same standard, and any failure to observe the rules of war will be an offence for which they can be court martialled and face punishment217, but they will nevertheless continue to be treated as combatants and enjoy full POW privileges218. Moreover, even if it is found that an individual has committed a war crime219, that fact will not result in the revocation of their POW status220.
Having said that, the new API regime does take the obligation to
observe the principle of distinction very seriously. Some academics have said that API article 48 (which requires that parties shall at all times distinguish between the civilian population and combatants), is API’s ‘most cardinal provision’221. Moreover, API transfers the liability to observe the principle of distinction up the chain of command, ‘thereby making commanders who elect not to court martial their soldiers for failing to distinguish themselves,
personally liable for violating articles 86 and 87 of API’222. In fact Rogers argues that a pattern of consistent violations of IHL (which goes unpunished)
‘is strong evidence that the group does not qualify as “armed forces”, since it fails to meet the criterion of an internal disciplinary system’223. In effect what Rogers proposes is that ill-disciplined forces might not enjoy full combatant status224.
iv. Forfeiture of POW status
While combatant and POW status seems more inviolable under the API guidelines225, the importance of the principle of distinction is still emphasised.
API follows:
215 Ipsen (2008) ‘Combatants and Non-combatants’ at 93.
216 Abraham ‘“Essential Liberty” Versus “Temporary Safety”: The Guantanamo Bay Internees and Combatant Status’ at 844.
217 Ipsen (2008) ‘Combatants and Non-combatants’ at 93, AP I article 44(3).
218 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 20.
219 ‘Colonel Draper states bluntly that members of the armed forces who persistently violate the laws of war do not lose their POW status upon capture’ (Idem at 10).
220 ‘Any guerrilla who fails to distinguish himself during such military operations… can be punished only by applicable disciplinary or penal sanctions, not by forfeiture of his status as a lawful combatant or… as a POW’ (George Aldrich ‘New Life for the Laws of War’ (1981) 75 American Journal of International Law 764 - 783 at 773).
221 Kalshoven and Zegveld Constraints on the Waging of War: An Introduction to International Humanitarian Law at 86.
222 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 20 (emphasis added).
223 Rogers ‘Unequal Combat and the Law of War’ at 16.
224 Ibid.
225 As per AP I article 44(2). Kalshoven and Zegveld Constraints on the Waging of War: An Introduction to International Humanitarian Law at 87.
Article 44(3)
‘Recognising, however that there are situations in armed conflicts where, owing to the nature of hostilities an armed 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 visible226 to the adversary while he is engaged in a military deployment preceding the launch 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(1)(c)’.
Article 44(4)
‘A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed’.
While the question of forfeiture of POW status was not mentioned in the Geneva Convention, the question of forfeiture appears to have crept into the language of API through article 44 227. In short ‘if a combatant falls into the power of the adversary “while failing to carry his arms openly during each military engagement and during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launch of an attack in which is to participate” – he shall forfeit his right to be a POW’228. According to Pfanner there is both ‘State practice and jurisprudence which indicate clearly that combatants who do not distinguish themselves from the civilian population while engaged in an attack or in a military operation prior to an attack shall forfeit their rights as POWs’229.
While the mention of forfeiture of POW status might be new to the API regime, the IHL prohibition against perfidy230 is one with a long history since it was recognised in Hague law231 and under customary international law232. In
226 At the time of signing up to the protocol some States ‘made interpretative statements, for
… that “visible” included visibility due to electronic or other forms of surveillance’, which
‘would include binoculars and night sights’ (Rogers ‘Unequal Combat and the Law of War’ at 12).
227 Pilloud ICRC Commentary on Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949 at 522.
228 Kalshoven and Zegveld Constraints on the Waging of War: An Introduction to International Humanitarian Law at 88.
229 Pfanner ‘Military Uniforms and the Law of War’ at 120.
230The prohibition is set out in AP I article 37 (1)(c). ‘A lawful combatant must abstain from creating the false impression that he is an innocent civilian… He must carry his arms openly in a reasonable way, depending on the nature of the weapon and the prevailing
circumstances’ (Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 39).
231 Article 23.
essence perfidy is committed when combatants intentionally feign protected status (as a non-combatant/civilian), in order to betray the confidence of the opposition and thereby gain an advantage over the opposing forces233. The prohibition against perfidy has always operated to preclude certain activities from the realm of acts which are covered by the IHL understanding of
combatant privileged.
So while ‘API requires combatants to distinguish themselves in the best possible manner, and in traditional terms this means that participants should ordinarily wear military uniforms’234, ‘in these exceptional and limited
circumstances [described in API article 44(3)] the combatant’s failure to observe the full requirements of distinction as set out in API, will not be seen as an perfidious act’ (‘which marks a significant change from the Hague and Geneva legal systems’235), and ‘shall not have the affect of forfeiting him his POW status and making him liable to be tried for all his hostile acts’236.
In order to limit the potential scope of application of the API article 44(3) exception, some States maintained that it only pertained to ‘occupied territories237 and in armed conflicts of the kind described in API article 4(1) (i.e. wars of national liberation)’238. Rogers maintains that such an
interpretation is ‘unduly narrow… since the exception would also be of use to special forces conducting long-range patrols in enemy-held territory’239. In fact, reading further in article 44(7) it is apparent that the drafters of API did contemplate that ‘“regular, uniformed armed units of a Party to the conflict”
may conduct operations while meeting the more relaxed standards of combatancy’240.
It is however generally accepted that ‘the exceptional rule will in
practice only be applied to guerilla fighters… it does not change the generally accepted practice of States concerning the wearing of uniforms’241. API article 44(7) points out that ‘this article is not intended to change 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
232 Jean-Marie Henckaerts and Louise Doswald-Beck (eds) (2005) Customary International Humanitarian Law Volume 1: Rules Cambridge University Press: Cambridge at rule 65 states that ‘killing, injuring or capturing an adversary by resort to perfidy is prohibited’.
233 Watkin ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy’ at 63.
234 This conforms to the basic principle outlined in article 44(7) which refers to the ‘generally accepted practice’ of wearing uniforms (Cowling and Bosch ‘Combatant Status at
Guantanamo Bay – International Humanitarian Law Detained Incommunicado’ at 13).
235 In such cases these fighters could face prosecution under the domestic legal system as a
‘common criminal’ (Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 20).
236 Idem at 22.
237 This was the U.K. position (Anthony Dworkin (2003) ‘Guerilla War, “Deadly Deception”, and Urban Combat’ available at http://www.crimesofwar.org/special/Iraq/brief-guerrilla.html (accessed 20 August 2006)).
238 Ipsen (2008) ‘Combatants and Non-combatants’ at 91.
239 Rogers ‘Unequal Combat and the Law of War’ at 12. ‘So a member of the special forces operating behind enemy lines, even if he does not carry his weapons openly in deployments and engagements, is entitled to POW status. However, he would be criminally responsible for any war crimes he may have committed in the process’ (Idem at 13).
240 Idem at 12.
241 Ipsen (2008) ‘Combatants and Non-combatants’ at 92.
conflict’242. It was felt that an interpretation of this exception which allowed combatants to oscillate between combatant and civilian identifications243 would ‘severely undermine any progress that this article has achieved’244. Even in these rare instances where the exception might apply, some measure of distinction is required, ‘at the point where distinction becomes fundamental to an equitable armed engagement – in the act of attack’. The ‘second
sentence of API article 44(3) suggests that the open carrying of arms is the minimum requirement’245. As a pragmatic response to the realities of modern war, ‘it appears that… the underlying standard is that participants on all sides should carry their arms openly in preparation for and during military
operations’246 in order to enjoy secondary POW status.
As Watkin points out, this provision introduces ‘a temporal element that was not present in the obligation to wear a fixed distinctive sign’247. The
temporal aspect however is only applicable to an enquiry into whether, once captured, the belligerent is entitled to POW status. In terms of API article 44(5) a belligerent can only risk forfeiting his POW status if he ‘falls into the power of an adverse Party’ while failing to observe the minimum requirement of carrying his armed openly while ‘engaged in an attack or in a military operation preparatory to an attack’248. If he carries out an ‘unprotected attack’
and escapes being captured, he will not, if captured during later hostilities, forfeit his right to POW status on account of these prior activities in violation of article API article 44(4)249. In short, combatants need only carry their
armaments openly when ‘engaged in an attack or in a military operation preparatory to an attack’, and the consequences of forfeiture of POW status are limited to those captured during such times250.
All the other consequences which flow from combatant status, including legitimate targeting, are not limited by the temporal aspect of this provision. Consequently, even ‘while off duty (i.e. while pursuing their civilian
242 Moreover the exception only applies for so long as there is a conflict of an international character’ (Cherif Bassiouni ‘The New Wars and the Crisis of compliance with the Law of Armed conflict by Non-State Actors’ at 750-751).
243 Pilloud ICRC Commentary on Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949 article 43.
244 Ibid.
245 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 19; Michael Bothe, Karl Partsch and Waldemar Solf (1982) New Rules for Victims of Armed Conflicts Commentary on the two 1977 Protocols Additional to the Geneva Conventions of 1949 Martinus Nijhoff Publishers: The Hague at 253.
246 Cowling and Bosch ‘Combatant Status at Guantanamo Bay – International Humanitarian Law Detained Incommunicado’ at 13.
247 Watkin ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy’ at 33.
248 Ibid. The commentary suggests that the term ‘military operations preparatory to an attack’
should be ‘broadly construed’ to include ‘logistical activities preparatory to an attack’, since these are ‘more likely to be conducted in a civilian environment’, which necessarily entails greater risk for the immune civilian population and thus makes the observance of the principle of distinction all the more necessary (Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 21).
249 Watkin ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy’ at 33.
250 Ibid.