The importance of primary status under IHL and its legal consequences

HOSTILITIES 1 5.1 Introduction

6.2 The importance of primary status under IHL and its legal consequences

address the issue of ‘where the modern PMSCs fit into existing international law’⁵². Without an ‘international convention which governs the activities of PMSCs specifically, the ‘status of today’s private military contractors is ambiguous at best’⁵³. That said, ‘in situations of armed conflict certain well- established rules and principles do… regulate both the activities of PMSC staff, and the responsibilities of the States that hire them’⁵⁴ under IHL.

Beyond the prospect of tribunals being flooded with cases involving the IHL status of PMSCs, lie other motivations for this analysis: first, opposition forces need clarity as to whether PMSCs may be legitimately targeted in the theatre of armed conflict; secondly, PMSCs need to know whether they are permitted to participate directly in hostilities (and exactly what activities amount to direct participation in hostilities), and lastly, PMSCs must appreciate the

firebreak to be effective, every individual in the theatre of war must have a recognised primary status as either a combatant or a civilian⁶². The

determination of one’s primary status informs not only the protections which individuals are afforded in the theatre of war, but also the legal consequences that flow from their actions⁶³, and the international legal obligations imposed upon their captors⁶⁴.

It is important to note that ‘no one is born a combatant … without being a civilian first’⁶⁵. However, once a civilian becomes a ‘member of the armed forces of a belligerent party’⁶⁶ (as defined by IHL⁶⁷), they acquire primary combatant status⁶⁸, and are expected to distinguish themselves from the civilian population⁶⁹. Every one else who is found in the theatre of war, and who do not fit within the definition of a combatant⁷⁰, are then by default classified as civilians⁷¹.

With ‘combatant’ privilege comes the exclusive authorisation to lawfully participate directly in hostilities⁷². This authorisation does not vest in

combatants individually, ‘but results from the affiliation of the individual combatant to an organ (i.e. the armed forces) of a party to the conflict, which is itself a subject of international law’⁷³. Since combatants are acting as

62 Kurt Ipsen (1995) ‘Combatants and Non-combatants’ in Dieter Fleck (ed) The Handbook of Humanitarian Law in Armed Conflict (1^st ed) Oxford University Press: Oxford at 65; Kidane

‘The Status of Private Military Contractors Under International Humanitarian Law’ at 363; De Nevers ‘Private Security Companies and the Laws of War’ at 172; Moreover, there is no intermediate ‘quasi-combatant’ category under IHL (Donald Rothwell ‘Legal Opinion on the Status of Non-combatants and Contractors Under International Humanitarian Law and Australian Law’ (2004) available at

http://www.aspi.org.au/pdf/ASPIlegalopinion_contractors.pdf (accessed 17 July 2012).

63 A civilian who participates directly in hostilities might face criminal prosecution for their unauthorised actions; while combatants are not prosecuted for participating in hostilities, provided they observe the rules of war.

64 Ipsen (1995) ‘Combatants and Non-combatants’ at 65.

65 Shlomy Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong?’ (2005) 38 Israel Law Review 378 at 390.

66 ‘... whether regular or irregular, 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) December ASIL Task Force Paper available at

http://www.asil.org/taskforce/goldman.pdf (accessed 21 February 2012) at 11).

67 Medical personnel and chaplains enjoy unique status under IHL (GC III article 33).

68 GC III articles 4A (1) and (3); Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 11.

69 AP I article 44(3); Gary Solis (2010) The Law of Armed Conflict: International Humanitarian Law in War. Cambridge University Press: New York at 209-210.

70 De Nevers ‘Private Security Companies and the Laws of War’ at 173.

71 AP I article 50(1). That said, some academics like Watkin propose more than just the two categories of participant. Watkin lists: ‘lawful combatants (API article 43); otherwise lawful combatants (API article 44(4)); members of organised armed groups who are not lawful combatants; civilians who take a direct part in hostilities; and uninvolved civilians’ (Kenneth Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ (2010) 42 International Law and Politics 641 at 665-667).

72 De Nevers ‘Private Security Companies and the Laws of War’ at 173.

73 It is worth mentioning at this juncture, that in an armed conflict, only a recognised subject of international law can clothe their armed forces with authorised combatant status (Ipsen (1995) ‘Combatants and Non-combatants’ at 66-67). ‘Private citizens and independent armed groups have always been excluded from entitlement to the combatant privilege and POW

‘representatives of a sovereign’⁷⁴, they are exempt from criminal liability for their ‘authorised acts’⁷⁵ of hostility, and cannot be punished for their mere participation in the hostilities⁷⁶. Without their primary combatant status, such participation in hostilities would render them liable for criminal prosecution upon capture⁷⁷.

While combatants are authorised to participate directly in hostilities, this authorisation is subject to the expectation that they adhere to the laws of war, and individuals can be prosecuted for their failure to do so⁷⁸. While a failure to observe the laws of war does not result in the loss of their primary

‘combatant status’⁷⁹, they shall nevertheless ‘be called to account in

accordance with the … military penal law of their party to the conflict’⁸⁰. The obligation to punish violations of IHL committed by individual combatants is viewed very seriously⁸¹.

As a further incentive for individual combatants to abide by the laws of war⁸², combatant privilege brings with it secondary prisoners of war (POW) status, in the event of a combatant falling into enemy hands. This secondary POW privilege, flows from the rationale that a detained combatant’s ‘ability to fight is limited’⁸³, which consequently neutralises their ‘military threat to the enemy’⁸⁴. Their detention renders them hors de combat, for the duration of

status’ (Solis The Law of Armed Conflict: International Humanitarian Law in War at 197).

‘There is no room for hostilities in an international armed conflict being conducted by individuals on their own initiative’ (Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 43).

74 Eric Talbot Jensen (2011) ‘Direct Participation in Hostilities’ in William C Banks (ed) New Battlefields Old Laws: Critical Debates on Asymmetric Warfare at 2020-28.

75 Idem at 1897-1906 and 1906-14.

76 Michael Brough ‘Combatant, Noncombatant, Criminal: The Importance of Distinction’

(2004) 11:2-3 Ethical Perspectives 176 at 177; Zachary ‘Between the Geneva Conventions:

Where Does the Unlawful Combatant Belong?’ at 380; Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 4; Ipsen (1995) ‘Combatants and Non-combatants’

at 93.

77 De Nevers ‘Private Security Companies and the Laws of War’ at 172; Brough ‘Combatant, Noncombatant, Criminal: The Importance of Distinction’ at 177.

78 Combatants who breach the laws of war may be subjected to disciplinary proceedings or military prosecutions (AP I articles 85 and 86; GC III articles 82-88; Ipsen (1995) ‘Combatants and Non-combatants’ at 81; Kidane ‘The Status of Private Military Contractors Under

International Humanitarian Law’ at 363).

79A breach of the laws of war does not, however, result in the forfeiture of their secondary POW status, unless they also breach the fundamental obligation of distinction (Claude Pilloud, Yves Sandoz and Bruno Zimmermann (1987) ICRC Commentary on Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949 Martinus Nijhoff Publishers: Geneva at 511; Ipsen (2008) ‘Combatants and Non-combatants’ at 95).

80 Ipsen (2008) ‘Combatants and Non-combatants’ at 82.

81 Idem at 95; AP I articles 85 and 86.

82 De Nevers ‘Private Security Companies and the Laws of War’ at 173.

83 Ipsen (1995) ‘Combatants and Non-combatants’ at 65-6; The 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 article 3(2), GC III articles 4A(1-3) and (6); AP I articles 43 and 44(1); Solis The Law of Armed Conflict: International Humanitarian Law in War at 197.

84 Solis The Law of Armed Conflict: International Humanitarian Law in War at 197.

the conflict’⁸⁵. At the cessation of hostilities those lawful combatants (held as POWs) are repatriated ‘to their own country, free to continue life unimpeded by their lawful hostile acts’⁸⁶.

While combatant status brings with it certain privileges, it also carries with it the risk associated with identifying oneself openly as a member of the armed forces⁸⁷. As such, they remain a ‘continuing lawful target’⁸⁸ for the opposing forces, at all times and at all locations⁸⁹, whether in or ‘out of uniform’⁹⁰… ‘even when they are not on active duty’⁹¹. This status quo continues as long as they retain membership of the armed force, and until they either retire from the military⁹², or ‘gain immunity from attack by becoming hors de combat’⁹³.

All those who do not enjoy combatant status, and who are consequently classified as civilians, are expected⁹⁴ not to partake in hostilities. Civilians are protected against the effects of hostilities, cannot be targeted, and are to be respected. In order to enjoy this protection, they must ensure that their actions do not compromise their civilian status⁹⁵. The moment a civilian elects to participate in the hostilities, he/she loses not only their immunity against targeting, but if captured can face criminal prosecution for their actions (even for actions which do not amount to a war crime were they to be committed by a combatant, like for example ‘killing an enemy soldier’)⁹⁶.

While IHL operates primarily on these ‘two stark classifications – combatant and civilian – it must fit a range of actors within them’⁹⁷.

Consequently we find within IHL a few anomalous categories of individuals, which challenge the stark combatant/civilian distinction. The first is the group labelled ‘persons accompanying the armed forces’. Although these non- combative service personnel accompany the armed forces, and for that are granted POW status upon capture, they are not authorised to participate

85 Nathaniel Berman ‘Privileging Combat? Contemporary Conflict and the Legal Construction of War’ (2004) 43 Columbia Journal of Transnational Law 1 at 5; Zachary ‘Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?’ at 380.

86 Jensen ‘Direct Participation in Hostilities’ at 1906-14.

87 Idem at 2020-28.

88 Solis The Law of Armed Conflict: International Humanitarian Law in War at 188.

89 Which includes those ‘on a front line or a mile or a hundred miles behind enemy lines’

(Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 34).

‘Whether eating, washing, watching television, or even sleeping, a lawful combatant is targetable by an opposing force at any time, regardless of his actions’ (Jensen ‘Direct Participation in Hostilities’ at 2020-28).

90 Yoram Dinstein (2007) ‘The System of Status Groups in International Humanitarian Law’ in Wolff Heintschel von Heinegg, Volker Epping (eds.) International Humanitarian Law Facing New Challenges Springer: Germany at 150-151.

91 Dinstein ‘The System of Status Groups in International Humanitarian Law’ at 150-151; Solis The Law of Armed Conflict: International Humanitarian Law in War at 188.

92 ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (‘Interpretive Guide’) (2009) ICRC: Geneva at 23.

93 ‘Only combatants can become hors de combat through surrender or incapacitation’ - it does not cover civilians (Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 34; Jensen ‘Direct Participation in Hostilities’ at 2197-2204).

94 De Nevers ‘Private Security Companies and the Laws of War’ at 173.

95 Ibid; GC IV article 3.

96 Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’ at 363.

97 De Nevers ‘Private Security Companies and the Laws of War’ at 173.

directly in hostilities, and consequently enjoy primary civilian status⁹⁸ . As a result of their essentially civilian status, ‘they cannot be targeted deliberately, although if they are co-located within legitimate military targets, attacks against those locations are nonetheless legitimate’⁹⁹. As a further

consequence of their civilian status, they are restricted from participating directly in hostilities, and by taking up arms they effectively forfeit their POW privilege upon capture, and can face criminal prosecution¹⁰⁰. Another

anomalous category is that of the ‘levée en masse’¹⁰¹. These are civilians who acquire the secondary protections afforded combatants (against prosecution), when they are forced to take up arms spontaneously in the face of an

occupation.

Clearly, IHL is accustomed to a somewhat muddled response to the ambiguous scenarios encountered in the theatre of war. Moreover, ‘as the privatisation of military-related activities becomes ever more commonplace, the formerly strict differentiation between “soldier” and “civilian” appears simplistic and difficult to implement’¹⁰². PMSCs are just one of many recent challenges which are facing international humanitarian lawyers. Nevertheless, IHL does operate ‘on the basis of the fundamental principle of distinction between combatants and civilians’¹⁰³, and that in cases of doubt an individual is ‘presumed to have protected status until such time as their status is

determined by a competent tribunal’¹⁰⁴. So, as much as the stark delimitation between the two categories does not meet the current reality of international armed conflict, it remains ‘crucial as it determines the rights and privileges afforded individuals by law, and the legal consequences deriving from the conduct of those persons’¹⁰⁵.