CHAPTER 1 INTRODUCTION
3.8 Persons accompanying the armed forces
In IHL treaties since the 1893 Lieber code109 (including HR article 13110 and GC III article 4A(4)111) there is reference made to ‘persons who accompany the armed forces without actually being members thereof’112. Oddly, while IHL openly states that these individuals lack the membership link to the armed forces required to afford them full combatant status, they are nevertheless mentioned within the treaty provisions which ordinarily deal with the privileges afforded to combatants.
Some texts refer to these individuals as private contractors or civilian employees of the armed forces113. Whatever label one uses, when we talk of ‘persons accompanying the armed forces’ we are referring to non-enlisted personnel who for ‘centuries… have
‘Jousting at Windmills’ at 1544-51; Rogers ‘Unequal Combat and the Law of War’ at 25;
Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 37).
104 Ipsen (2008) ‘Combatants and Non-combatants’ at 106.
105 ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 85.
106 Solis The Law of Armed Conflict: International Humanitarian Law in War at 211.
107 Idem at 208; Ipsen (2008) ‘Combatants and Non-combatants’ at 82.
108 Zachary ‘Between the Geneva Conventions: Where does the Unlawful Combatant Belong?’ at 392.
109 Instructions for the Government of Armies of the United States in the Field (Lieber Code) (24 April 1863) available at
http://www.icrc.org/ihl.nsf/73cb71d18dc4372741256739003e6372/a25aa5871a04919bc1256 3cd002d65c5?OpenDocument (accessed 21 September 2012).
110 ‘Individuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters, sutlers and contractors, who fall into the enemy's hands and whom the latter thinks expedient to detain, are entitled to be treated as POW, provided they are in possession of a certificate from the military authorities of the army which they were accompanying’.
111 ‘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 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’.
112 Ipsen (2008) ‘Combatants and Non-combatants’ at 107.
113 Ibid.
participated in a series of significant functions’114 like: war
correspondents, military aircraft technicians; those ‘managing and servicing battle-related equipment’115; members of labour units, supply contractors, those who prepare and sell food or those providing
services responsible for the welfare of the soldier116. It is also worth noting that the list enumerated above was not meant to be
exhaustive117. By whatever name, the fact remains that ‘parties to armed conflicts have increasingly employed private contractors and civilian employees in a variety of functions traditionally performed by military personnel’118.
Since these persons who ‘accompany the armed forces’119 are not members of the armed forces, with full combatant status, they could not otherwise ‘claim the status of POW awarded to combatants’120, were it not for the fact that they are specifically afforded secondary POW by the IHL treaties.
This secondary POW status is afforded these individuals on account of the fact that they perform their activities121 in ‘geographic and organisational’122 proximity of military objectives and military units involved in belligerent campaigns’, and thereby face increased risk of incidental injury123 (as
acceptable collateral damage)124 and falling into enemy hands125, even if they do not take a direct part in hostilities126.
114 Dale Stephens and Angeline Lewis ‘The Targeting of Civilian Contractors in Armed
Conflict’ (2006) 9 Yearbook of International Humanitarian Law 25 at 33; Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 49.
115 Roberts ‘The Civilian in Modern War’ at 49.
116 GCIII article 4(A)(4); Rogers ‘Unequal Combat and the Law of War’ at 21; Stephens and Lewis ‘The Targeting of Civilian Contractors in Armed Conflict’ at 33; Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 49.
117 Stephens and Lewis ‘The Targeting of Civilian Contractors in Armed Conflict’ at 35.
118 ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 37.
119 According to the treaty only those civilian contractors who actually accompany the armed forces are afforded this special status. ‘Contractors providing support to other branches of the State administration…during an armed conflict cannot claim this status’ (Giulio Bartolini (2011) ‘Private Military and Security Contractors as “Persons who Accompany the Armed Forces”’ in Francesco Francioni and Natalino Ronzotti (eds) War By Contract: Human Rights, Humanitarian Law and Private Contractors Oxford University Press at 220).
120 Idem at 219.
121 ‘Activities traditionally performed by contractors classified as “persons who accompany the armed force” are not considered as direct participation in hostilities’ (Idem at 220).
122 Ipsen (2008) ‘Combatants and Non-combatants’ at 107.
123 Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’
at 384.
124 When an attack is directed at an ‘objective containing civilians accompanying armed forces’, API article 57(2)(a) demands that care is taken ‘in order to keep collateral injuries to the civilians accompanying the armed forces to a minimum’ (Ipsen (2008) ‘Combatants and Non-combatants’ at 107).
125 Bartolini (2011) ‘Private Military and Security Contractors as “Persons who Accompany the Armed Forces”’ at 219. ‘Although the capturing party may decide to simply let these persons go, it is entitled to detain them… and if it does detain them, it is obliged to treat them as POW’
(Kalshoven and Zegveld Constraints on the Waging of War: An Introduction to International Humanitarian Law at 47). POW status brings with it the benefit of being ‘repatriated to their country as soon as hostilities cease’ (Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’ at 384).
126 ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 37.
The only condition which was attached to this privileged, was that they had to carry with them the necessary identity cards127 ‘confirming their
status’128 and their right to claim POW privileges upon capture. Rogers rightly points out ‘it is probably better if they do not wear uniforms’ and ‘any arms should be for personal self-defence and this should be reflected in the training and rules of engagement of such personnel’129.
While it is tempting to classify this group of individuals as non-
combatant members of the armed forces, it is important to note that the two groups are in fact distinct from each other130. While both non-combatant members of the armed forces and these ‘persons accompanying the armed forces’ are denied ‘authorisation to fight as a combatant’, the grounds for this denial is different131. ‘Non-combatants, despite their membership of the armed forces’, are denied authorisation to participate directly in hostilities because of the function that they serve132. ‘Persons who accompany the armed forces’, on the other hand, do not enjoy authorisation to participate in hostilities
‘because of their primary status’133 as civilians. As civilians, these private contractors are ‘entitled to protection against direct attack ‘unless and for such time as they take a direct part in hostilities’ as is the case with any civilian134. Furthermore they do not lose this civilian status ‘simply because they
accompany the armed forces and/or assume (non-combative) functions… that would traditionally have been performed by military personnel’135.
The majority of ‘private contractors and civilian employees currently active in armed conflicts have not been incorporated136 into State armed forces’137 and consequently, for the most part, they do not
‘assume functions’138 which amount to direct participation in
127 Ipsen (2008) ‘Combatants and Non-combatants’ at 10; GC III article 4 (A)(4) states:
‘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’. The card ‘requires the identification of the issuing authority and must specify exactly what the bearer is authorised to do’ (Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’ at 382-383).
128 Rogers ‘Unequal Combat and the Law of War’ at 21.
129 Ibid.
130 The fact that both groups are entitled to POW status ‘does not equate to having privileged combatant status’ (Stephens and Lewis ‘The Targeting of Civilian Contractors in Armed Conflict’ at 33; Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 49).
131 Ipsen (2008) ‘Combatants and Non-combatants’ at 79 and 105.
132 Ibid.
133 Idem at 65, 79, 105 and 107; GC III article 4A(4) and AP I article 50(1).
134 ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 37.
135 Idem at 38.
136 A determination that a party belongs to the state requires integration into the armed forces command structure, either by way of a formal process (made possible by national
legislations) or as a consequence of being given a ‘continuous combat function’ (ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 39; Stephens and Lewis ‘The Targeting of Civilian Contractors in Armed Conflict’ at 35). In such instances their membership of ‘an organised armed force, group, or unit under a command responsible to a party to the conflict’ would strip them of their primary civilian status and clothe them with combatant status (ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 39).
137 Idem at 37.
138 Ibid.
hostilities139. However as the ICRC points out, it can be challenging to ascertain ‘the civilian or military nature of contractor activity’140. It is however imperative that those armed forces employing such private contractors ensure that they do not permit them to partake in activities which are ‘are inherently governmental and remain military in nature’141. Serious ‘repercussions’ result if it is found that these ‘civilian
contractors’ are indeed participating directly in hostilities142. For one, they lose both their civilian immunity from attack143 and may be subject to direct targeting144. Furthermore they stand to forfeit their POW status145, and they ‘may be prosecuted146 for war crimes and other related forms of criminal offenses’147 because they do not enjoy the combatant privilege afforded to members of the armed forces in international armed conflicts148.
In short, were it to be concluded that a private contractor had participated directly in hostilities ‘without the express or tacit
authorisation of the State party to the conflict’149, or without being incorporated into the armed forces, ‘they remain civilians’ but ‘lose their protection against direct attack for such time as their direct participation lasts’150. Where there is doubt as to whether the private contractor has overstepped the mark and is potentially participating directly in
hostilities, ‘the general rules of IHL on precautions and presumptions in situations of doubt’ become crucial151.
139 The test applied to determine whether their actions amount to direct participation in hostilities is the same test that is applied to all ordinary civilians (Ibid).
140 ‘For example, the line between the defence of military personnel and other military objectives against enemy attacks (which amount to direct participation in hostilities), and the protection of those same persons and objects against crime or violence unrelated to the hostilities (which does not amount to direct participation in hostilities), may be thin’ (Idem at 38).
141 Ipsen (2008) ‘Combatants and non-combatants’ at 108.
142 Idem at 107; Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’ at 385.
143 While a private contractor who does not participate in hostilities may not be targeted directly, and will be afforded POW status should he fall into enemy hands, this privilege is not extended to those private contractors who do participate without authorisation.
144 Ipsen (2008) ‘Combatants and Non-combatants’ at 107.
145 Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’
at 385; Stephens and Lewis ‘The Targeting of Civilian Contractors in Armed Conflict’ at 35;
Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 49 and 121.
146 The risk of prosecution is the same as for ‘all other civilians who are prohibited from taking a direct part in hostilities’ (Ipsen (2008) ‘Combatants and Non-combatants’ at 105 and 107).
147 Kidane ‘The Status of Private Military Contractors Under International Humanitarian Law’
at 385.
148 Ipsen (2008) ‘Combatants and Non-combatants’ at 108.
149 Stephens and Lewis ‘The Targeting of Civilian Contractors in Armed Conflict’ at 35.
150 Ibid; ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 39.
151 ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 38.