CHAPTER 1 INTRODUCTION
2.2 Defining the term ‘combatant’
The term ‘combatant’ (or ‘belligerent’, as is sometimes referred to in older texts7) is used to ‘denote a particular status in international armed conflicts’8. In IHL the term combatant ‘is a term of art’9, it brings with it very particular privileges and obligations. Although ‘there is no consensus definition of the term combatant in international law’10, ‘most international law scholars agree
… that at least the class of persons who are lawful combatants is fairly clear’11. If put on the spot to provide a working definition12, most academics refer to article 4A(2) of the 1949 Geneva Convention Relative to the
Treatment of Prisoners of War (GC III)13, which provides a ‘criteria for
determining Prisoner of war (POW) status’14, which in turn they would argue is a secondary IHL status which is only conferred upon those who already have primary combatant status15. However, the ICRC is correct to point out that strictly speaking the requirements set out in GC III article 4A(2) ‘constitute conditions for the post-capture entitlement of irregular armed forces to combatant privilege and prisoner- of-war status’16, and are not per se a definition of combatant status.
It is important to note that ‘no one is born a combatant… without being a civilian first’17. Once a civilian becomes a ‘member of the armed forces of a
7 Dating back to the 1874 Brussels Conference, the 1899 and 1907 Hague Peace
Conferences and codified in the 1907 Hague Convention Respecting the Laws and Customs of War on Land (John Ricou Heaton ‘Civilians at War: Re-examining the Status of Civilians Accompanying the Armed Forces’ (2005) 57 Air Force Law Review 155 at 169).
8 Laurie R Blank ‘Updating the Commander’s Toolbox: New Tools for Operationalising the Law of Armed Conflict’ (2010) 1:3 PRISM 59 at 64; David Whippman ‘Redefining
Combatants’ (2006) 39 Cornell International Law Journal 699 at 701.
9 Whippman ‘Redefining Combatants’ at 701.
10 Eric T Jensen (2011) ‘Direct Participation in Hostilities’ in William C Banks (ed) ‘New Battlefields Old Laws: Critical Debates on Asymmetric Warfare’ (Columbia University Press:
New York) (ebook version) at 1888-97. While some argue that a definition can be found in the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I) (1979) 1125 U.N. Treaty Series 1391 articles 43 and 44. This ‘definition is disputed by a number of nations, including the U.S.’
(Jensen ‘Direct Participation in Hostilities’ at 1888-97; Whippman ‘Redefining Combatants’ at 701). ‘As James Spaight stated in 1911, the delegates to the 1907 Conference had “almost shirked their task — a task of great difficulty, it must be admitted” in attempting to define combatant status’ (Kenneth Watkin ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle over Legitimacy’ (2005) 2 Program on Humanitarian Policy and Conflict Research: Harvard University Occasional Paper Series at 3-4).
11 Jensen ‘Direct Participation in Hostilities’ at 1888-97.
12 Whippman ‘Redefining Combatants’ at 701.
13 (1950) 75 U.N.Treaty Series 135.
14 Whippman ‘Redefining Combatants’ at 701.
15 As Ricou-Heaton points out ‘POWs are, in most circumstances, simply combatants who fall into the hands of the enemy, the definition of who is entitled to POW status is all but
synonymous with who is a combatant’ (Ricou Heaton ‘Civilians at War: Re-examining the Status of Civilians Accompanying the Armed Forces’ at 169).
16 ICRC (2009) Interpretive Guide on the Notion of Direct Participation in Hostilities Under IHL (Interpretive Guide) available at http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-
participation-ihl-feature-020609 (accessed 7 August 2011) at 21-22.
17 Shlomy Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong?’ (2005) 38 Israel Law Review 378 at 390.
belligerent party’18, they are presumed to acquire primary combatant status, and with that the potential for acquiring secondary prisoner of war (POW) privileges upon capture19. Moreover, this combatant status is granted
irrespective of the ‘specified task assigned to an individual within the military apparatus’20, be it a combative task (i.e. fighting on the frontlines) or one that does not involve engaging in combat (i.e. cooking)21. The rule that combatant status derives from one’s mere membership in the armed forces, rather then one’s function22, is widely acknowledged without any State practice to the contrary23.
i. Non-combatant members of the armed forces
While for most combatants they will be ‘trained to engage in combat and fire weapons’, a substantial proportion of the membership of the armed forces
‘serve in auxiliary or administrative positions (ranging from legal advisors to cooks)’, and do not engage in combat operations24. Consequently, within the conglomerate25 classification of ‘combatant’, one finds ‘cooks, court reporters, judges, government officials, blue–collar workers’26, medics and chaplains.
These service personnel within the ranks of the armed forces are ‘denied authorisation to use a weapon or a weapons system’27 and are consequently called non-combatant28 members of the armed forces29. Since this limitation on their authorisation to participate in combat stems from national legislation, it has no impact on the international law position which affords blanket
combatant status to all members of the armed forces30.
Moreover, even though these members of the armed forces play a non- combatant role, they remain subject to the ‘dangers arising from military
18 This is irrespective of whether they are ‘regular or irregular’ and ‘including paramilitary units incorporated de facto in the armed forces’ (Robert Goldman and Brian Tittemore
‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ (2002) ASIL Task Force Paper available at www.asil.org/taskforce/goldman.pdf (accessed 21 February 2012) at 11).
19 Ibid; GC III article 4A (1) and (3).
20 Yoram Dinstein (2004) The Conduct of Hostilities Under the Law of International Armed Conflict Cambridge University Press: Cambridge at 33.
21 David M Crane and Daniel Reisner (2011) ‘Jousting at Windmills’ in William C Banks (ed) New Battlefields Old Laws: Critical Debates on Asymmetric Warfare Columbia University Press: New York (ebook version) at 1535-44.
22 Crane and Reisner ‘Jousting at Windmills’ at 1595-1604.
23 Dale Stephens and Angeline Lewis ‘The Targeting of Civilian Contractors in Armed Conflict’
(2006) 9 Yearbook of International Humanitarian Law 25 at 30.
24 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 33.
25 Stephens and Lewis ‘The Targeting of Civilian Contractors in Armed Conflict’ at 30.
26 Knut Ipsen (2008) ‘Combatants and Non-combatants’ in Dieter Fleck (ed) The Handbook of Humanitarian Law in Armed Conflict Oxford University Press: Oxford at 99.
27 Idem at 81; AP I article 43(2).
28 The 1907 Regulations Respecting the Laws and Customs of War on Land, Annex to the Hague Convention IV of 18 October 1907 (Hague Regulations ‘HR’) 1910 U.K. Treaty Series 9 available at http://www.icrc.org/ihl.nsf/full/195 (accessed 14 July 2012) at article 3.
29 Nevertheless, ‘non-combatants, too, have the right to defend themselves or others against any attacks… the attack activates the latent combatant status irrespective of whether the attack was in contravention of the laws of war’ (Ipsen (2008) ‘Combatants and Non- combatants’ at 103-104).
30 Idem at 99.
operations’31. The ‘general protection against the dangers arising from military operations which API article 51… affords to the civilian population and to individual civilians’32 does not extend to non-combatant members of the armed forces because their membership of the armed forces precludes them from enjoying primary civilian status33. Since they are not civilians, and the actions of these non-combatants do contribute to the ‘effective military operations’34, the opposition forces are relieved of the burden of having ‘to differentiate during their attack between combatant and non-combatant members of the adverse armed forces’35.
ii. Hors de combat
Within the sub-category of ‘non-combatants’ we also find ‘those who, but for their injuries, would be classified as ordinary combatants (the wounded, sick and shipwrecked)’36. When a combatant ‘becomes hors de combat… he does not become a civilian; but he is entitled to special protections and he must be accorded privileges of POW’37.
iii. Military and religious personnel
Medical and religious personnel enjoy the protection of a distinct legal regime, with their own unique primary IHL status, dating back to 1864 and developed through subsequent Geneva conventions38. They form a peculiar sub-
category of non-combatant members of the armed forces. They are ‘expressly prohibited from participating directly in hostilities and enjoy special protection as a result of this limitation’39. In order to highlight their unique status in the theatre of operations, they are issued with special armbands40 to ‘mark the wearers as non-combatants and not lawful targets’41. Unlike other non-
31 Ibid.
32 Ibid.
33 API article 50(1) provides a negative legal definition: ‘a civilian is any person who does not belong to one of the categories of persons referred to in articles 4A(1), (2), (3) and (6) of GC III and article 43 of API’ (Ibid).
34 Idem at 100.
35 Provided that no medical or religious personnel are present at the location (Ibid).
36 A combatant is rendered hors de combat ‘through surrender or incapacitation’ (Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 34). The protections afforded these non-combatants are explored comprehensively in GC I (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) and GC II (1974 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).
37 Yoram Dinstein (2007) ‘The System of Status Groups in International Humanitarian Law’ in Wolff Heintschel von Heinegg and Volker Epping (eds.) International Humanitarian Law Facing New Challenges Springer: Berlin at 148.
38 Ipsen (2008) ‘Combatants and Non-combatants’ at 102; GC III article 4(c) states: ‘this article shall in no way affect the status of medical personnel and chaplains as provided for in article 33 of the present Convention’.
39 GC I articles 24, 26 and 27; Dinstein ‘The System of Status Groups in International Humanitarian Law’ at 147.
40 These bear a red cross or crescent on a white background.
41 Solis The Law of Armed Conflict: International Humanitarian Law in War at 192.
combatant members of the armed forces, military and religious personnel cannot be made the target of a legitimate attack. Moreover, were they to fall into enemy hands, they would not hold POW status strictu sensu, ‘although they are POWs to all outward appearances’42. Technically their legal status is one of ‘retained personnel’43.
2.3 The privileges attached to the authorisation to participate in