CHAPTER 1 INTRODUCTION
2.8 Combatant status under the Geneva Conventions of 1949
When a conference was called to draft the four Geneva Conventions (GC I- IV)111 in 1949, the drafters were once again guided by the rationale
underpinning the ‘principle of distinction… protecting innocent, harmless, individuals’112. In GC III article 4A the drafters listed ‘the categories of those entitled to POW status’113.
‘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:
(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 organised 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 organised
resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognisable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognised by the Detaining Power.
(4) 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
110 Idem at 2469-77
111 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I) of August 12 1949 (1950) 75 U.N. Treaty Series 31-83;
1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II) of August 12 1949 (1950) 75 U.N.
Treaty Series 85; 1949 Geneva Convention Relative to the Treatment of Prisoners of War (GC III) of August 12 1949 (1950) 75 U.N. Treaty Series 135; 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV) of August 12 1949 (1950) 75 U.N. Treaty Series 287.
112 Richemond-Barak ‘Non-State Actors in Armed Conflict’ at 2517-25.
113 Idem at 2372-79. The criteria set out in GC III article 4A(2) are sometimes termed ‘the
“legal test for POW status”’ (Pfanner ‘Military Uniforms and the Law of War’ at 115).
armed forces, provided that they have received authorisation, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) 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.
(6) 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’.
This provision has been ‘widely held as defining114 the meaning of
“combatant”’115 (in the absence of an explicit definition)116, since only a
combatant can qualify for POW privilege. While the criteria for POW status set out in CG III article 4A is strongly reminiscent of the definition found in the Hague regulations117, there is one important respect in which Geneva law and Hague law differ. Instead of adopting an approach that focuses on the
individual’s activities in assessing his combatant status, GC III shifted the focus to a membership-based understanding wherein ‘all members of the armed forces are combatants, regardless of what their function within the armed forces might be’118. Put another way ‘membership in an identifiable and organised armed force’ is what determines whether one qualifies for
combatant status119 under Geneva law.
i. Regular armed forces
Legally speaking, the list of criteria set out in article 4A(2) is applicable to irregular armed forces seeking combatant status. That said, a cursory examination of GC III article 4A suggests that there appears to be a strong presumption which operates so as to automatically120 clothe members of the regular armed forces with secondary POW privilege121 (and, by implication, also primary combatant status). As Goldman explains, according to the
114 Albeit in a rather inconvenient place, in a convention dealing with the rights of POWs (Richemond-Barak ‘Non-State Actors in Armed Conflict’ at 2477-85).
115 Idem at 2372-79.
116 Idem at 2517-25.
117 Ricou Heaton ‘Civilians at War: Re-examining the Status of Civilians Accompanying the Armed Forces’ at 169. Geneva law incorporated the four
requirements set out in the HRs and then added a fifth and sixth requirement: that of being organised and belonging to a belligerent party (Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 43).
118 Richemond-Barak ‘Non-State Actors in Armed Conflict’ at 2477-85.
119 Idem at 2386-94; Pfanner ‘Military Uniforms and the Law of War’ at 115; Ipsen (2008)
‘Combatants and Non-combatants’ at 86.
120 Pfanner notes that based on an ‘ordinary reading of GC III article 4A(1) and the travaux preparatoires, it is clear that the regular armed forces (including members of militia and volunteer corps forming part of them) do not have to formally fulfil the four criteria in order to qualify as POW’ (Pfanner ‘Military Uniforms and the Law of War’ at 115).
121 Which is activated when they fall into enemy hands.
Geneva Conventions of 1949, the right of the members of the regular armed forces to ‘combatant and POW status is “unconditional if not absolute”’122. The reality is such that the regular armed forces ‘by their very nature’, and with very little additional effort, are presumed to ‘meet the conditions of eligibility to POW status, but the presumption can definitely be rebutted’123. In dealing with this issue, the Privy Council in the Mohamed Ali case of 1968 established that
‘even members of the armed forces must observe the conditions imposed on irregular armed forces, notwithstanding the fact that it is not stated expressis verbis in the GC or the HR’124. Pfanner concurs: ‘State parties are expected to take the requisite steps to give effect to these implied elements’ (i.e. the conditions of eligibility for POW status)125. Pfanner goes on to say that any member of the armed forces who falls into enemy hands will in any event have to comply with ‘every individual criterion indicated in GC III article 4A(2) in order to qualify as POW, as only those elements describe properly a member of the armed forces’126.
One of those unspoken requirements is that members of the regular armed forces are to observe the principle of distinction. Traditionally the State’s armed forces have distinguished their members by making use of uniforms127. Since it was simply assumed that the regular armed forces would always be uniformed128, it is not surprising that the drafters of GC III make no explicit reference to any IHL obligation upon states to ensure that their regular armed forces wear uniforms129. ‘In fact the expectation that combatants would be uniformed was so unquestioningly assumed that no effort was made in any of the IHL treaties to define what constitutes a uniform’130 for the purpose of conferring combatant status. Pilloud et al argue that this omission has left the term uniform being used very loosely to apply to any myriad of ‘distinguishing symbols’ and even to camouflage dress131. As Dinstein points out, the ‘special
122 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 10. The one exception arises in the case of members of the regular armed forces who are caught spying while out of uniform.
123 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 43.
124 Idem at 42.
125 Pfanner ‘Military Uniforms and the Law of War’ at 114.
126 Idem at 114. However, there is ample practice to endorse the conclusion that the State’s armed forces can ‘fail as a collective to comply with the four requirements’ (like for example failing to observe the laws of war), without fear of being ‘deprived of POW status’ (Idem at 117).
127 The only personnel who were exempted from this requirement were those individuals (like
‘war correspondents, civilian contractors, civilian members of military aircraft crews; merchant marine and civil aircraft crews’) who by their vocation were not authorised to participate in hostilities directly (Idem at 94).
128 Moreover it was also assumed that they would always be subject to an organised hierarchy and compliant with the laws of war (Jean Pictet (1960) ICRC Commentary on Geneva Convention III ICRC: Geneva at 63; Pfanner ‘Military Uniforms and the Law of War’
at 103).
129 Pfanner ‘Military Uniforms and the Law of War’ at 104; Cowling and Bosch ‘Combatant Status at Guantanamo Bay – International Humanitarian Law Detained Incommunicado’ at 9- 11. 130 Cowling and Bosch ‘Combatant Status at Guantanamo Bay – International Humanitarian Law Detained Incommunicado’ at 9-11.
131 Which clearly calls into question the requirement that the ‘uniform’ is recognisable at a distance (Pilloud ICRC Commentary on Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949 at 566). ‘Combatants seeking to stay alive do not have to
forces often wear non-standard uniforms, a phenomenon which is
unobjectionable provided that the combatants retain some distinctive feature telling them apart from civilians’132. And as Watkin correctly points out,
‘camouflage and disguise as an “ordinary civilian going about his normal pacific activities are different”’133. It is worth remembering that the principle of distinction is not concerned so much with whether ‘combatants can be seen, but whether (if observed) they are likely to be mixed up with civilians’134. ii. Irregular armed forces
As war evolved and other militia135 and voluntary groups136 began to participate more regularly in the theatre of war (often without the luxury of clothing their militia men and women in a traditional military uniform), the question of ‘whether and under what conditions irregular combatants, not members of the regular armed forces, would be entitled to privileged
combatant and POW status’137 became paramount. In response to the tales of poor treatment received by organised resistance movements during WWII138, the provisions relating to irregular combatants were re-stated in GC III article 4 A(2)139, with a few changes. Amongst the changes made to the Hague law, GC III sought to ‘explicitly recognise independent irregular militias, volunteer corps’ and now also organised resistance movements140, on condition that they could prove that they belonged to a party to the conflict141. Secondly, GC III sought to extend the protections of privileged combatancy to instances where these irregular combatants operated ‘both within and outside their own territory irrespective of whether the territory was occupied’142, doing away with any limitation that linked their combatant privilege to situations of territorial occupation.
Whenever States have gathered to discuss the issue of who should be granted combatant and POW status, there has been resistance to proposals which might expand the pool of those who could claim combatant status. For the most part, those opposed to extending the granting of combatant status have raised the fact that relaxing the uniform requirement would undermine the longstanding IHL principle of distinction, which in effect would increase the risk to ordinary civilians143. Given this sort of resistance it was not surprising
attempt to draw attention to themselves, and even soldiers in uniform are allowed to use camouflage. This is a lawful ruse of war’ (Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 44).
132 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 43.
133 Watkin ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy’ at 29-30.
134 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 44.
135 In terms of GC III article 4 A(2).
136 Ibid.
137 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 7.
138 Who were denied POW status and treated as unlawful combatants.
139 GC III article 4(A)(1) set out the law as it applied to the traditional regular armed forces.
140 Rogers ‘Unequal Combat and the Law of War’ at 14.
141 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 9.
142 Ibid.
143 Idem at 7.
that irregulars and non-State armed groups (‘who fight alongside or as part of the armed forces of a High Contracting Party to the GC’s in a conflict of an international character’) had to meet more stringent criteria144 before they could be afforded full combatant status, while it was ‘simply presumed that their colleagues who served as members of the traditional armed forces would fulfill these requirements as a matter of course’145.
Firstly, irregulars had to show that they belonged146 to an organised group. Once irregulars could show even the ‘most rudimentary elements of military organisation’147 the second requirement was to prove that, as a group, they belonged to or were fighting on behalf of a State party to an international armed conflict148. According to the commentary, any form of tacit
authorisation, or control by the party to an international armed conflict149, or a
‘de facto150 relationship between the resistance organisation and the State’151 is sufficient to satisfy this requirement152. Richemond-Barak maintains that the belonging requirement set out in article 4A(2) did not require either ‘formal incorporation into the State’s forces nor the authorisation of all the armed group’s activities by the State’153. In short it was included as a requirement to ensure that the ‘customary law proscription against individuals or groups engaging in “private warfare” against a State party involved in an armed conflict’154, would be observed155.
Thirdly, ‘irregulars had to show that they belonged to a group which was commanded by a person responsible for his subordinates’156, and
144 Idem at 11.
145 Idem at 9 and 11, Mahmoud Cherif Bassiouni ‘The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors’ (2008) 98(3) Journal of Criminal law and Criminology 711 at 750-751.
146 Elsea suggests that ‘“belonging to” a party is a less exacting standard than “forming part of” its armed forces… it may be that informal and even temporary cooperation between the militia or volunteer group and regular troops suffices to bring militia members under the protection of combatant status’ (Jennifer Elsea ‘Treatment of “Battlefield Detainees” in the War on Terrorism’ (2007) January CSR Report at 27).
147 Thomas Mallison and Sally Mallison ‘The Juridical Status of Irregular Combatants Under the International Humanitarian Law of Armed Conflict’ (1977) 9 Case Western Journal of International Law 39 at 50; Pictet ICRC Commentary on Geneva Convention III at 58.
148 As per GC I-IV common article 2. ‘State recognition, however, is not essential, and an organisation may be formed spontaneously and elect its own officers’ (Elsea ‘Treatment of
“Battlefield Detainees” in the War on Terrorism’ at 30).
149 For example ‘by delivery of weapons to the irregulars’ (Prosecutor v Tadić ICTY Appeals Chamber (1999) 38 International Legal Materials 1518 at 1537).
150 According to the ICTY Appeals chamber in Tadic, ‘a relationship of dependence and allegiance of these irregulars vis-à-vis that party to the conflict will satisfy this requirement’
(Prosecutor v Tadić ICTY Appeals Chamber at 1537). This ‘implicitly refers to ‘a test of control... by co-ordinating or helping in the general planning of [the associated group’s]
military activity’ (Stephens and Lewis ‘The Targeting of Civilian Contractors in Armed Conflict’
at 32).
151 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 12.
152 Prosecutor v Tadić ICTY Appeals Chamber at 1537.
153 Richemond-Barak ‘Non-State Actors in Armed Conflict’ at 2534-41.
154 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 12.
155 ‘Such unaffiliated fighters always have been forbidden by LOAC’ (Solis The Law of Armed Conflict: International Humanitarian Law in War at 196).
156 ‘Although the leaders qualification or how he obtained his authority is not specified – the leader must be responsible for the action taken on his orders – requires disciplining his
fourthly, that the group members had ‘a fixed, distinctive sign recognisable at a distance’157. There is little by way of guidance in either treaty law or soft law as to what ‘constitutes a distinctive sign’158. What is clear however is that there is certainly ‘no treaty based or customary norm that requires that irregulars… wear traditional military dress159… with a proper insignia’160. Goldman suggests that provided ‘the dress or sign worn be such that it is visible during daylight, and detectable at a distance by the naked eye’161, the requirement would be satisfied. The rationale behind the requirement is that ‘it must identify and characterise the armed force using it’ and ‘the armed force is not allowed to confuse the enemy by ceaselessly changing its distinctive emblem’162. From various legal opinions, it is probably safe to conclude that the following items are sufficient to constitute a distinctive sign recognisable at a distance: a helmet, headdress, cap, scarf, coat, shirt, badge, emblem,
armlet, ‘coloured sign worn on the chest’163 or brassard permanently affixed to clothing164. Once the armed group has adopted its ‘identifying emblem’165, it is then ‘up to the individual to wear the emblem as required, his failure to do so will not contaminate the other members of the group’166.
The fifth requirement is also motivated by the principle of distinction, and requires that the group ensure that its members carry their arms openly.
In essence this is meant to ensure that the opposition are not unfairly taken by surprise by irregulars ‘who approach with pistols concealed beneath their clothing’167.
Lastly the group must ‘ensure that its members conduct their
operations in accordance with the laws of war‘. Very briefly this would require the observance of the basic principles on which IHL is based: observing civilian immunity against attack and not causing ‘disproportionate civilian casualties' or ‘unnecessary suffering and destruction’168. The rationale behind
members to ensure compliance with the laws of war’ (Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 12).
157 Ibid.
158 Idem at 13.
159 Ibid.
160 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 43.
161 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 13. While Dinstein notes that ‘it is not clear whether visibility is determined solely by the naked eye or if it also includes observation by means of binoculars and even infra-red equipment’ (Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 53).
162 Idem at 43.
163 Provided it is worn constantly, in all circumstances (Pictet ICRC Commentary on Geneva Convention III at 60).
164 Pictet ICRC Commentary on Geneva Convention III at 60; U.S.Department of the Army Field Manual 27-10 The Law of Land Warfare at 27 para 64(b); Goldman and Tittemore
‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 13.
165 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 49-50.
166 Ibid.
167 Goldman and Tittemore ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 13.
168 Idem at 14. Immediately we can appreciate that ‘those engaging in terrorist acts aimed at spreading fear amongst the civilian population, would immediately fall foul of this criteria and would not be classified at combatants in terms of GC III’ (Idem at 7).