HOSTILITIES 1 5.1 Introduction
6.3 PMSCs as ‘combatants’
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.
status’107, set out in GC III article 4108, define the meaning of the term
combatant 109, since it is implied that all those individuals who qualify for POW status a priori enjoy combatant privilege110. GC III shifted the focus from the activity-based understanding of combatant status which had existed under the Hague law, 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’111. Put another way, ‘membership in an identifiable and organised armed force’ is what determines whether one qualifies for combatant status112.
Legitimacy’ Program on Humanitarian Policy and Conflict Research, Harvard University Occasional Paper Series (Winter 2005) 2 at 3-4). Some academics argue that ‘there is no consensus definition of the term combatant in international law’ (Jensen ‘Direct Participation in Hostilities’ at 1888-97).
107 Daphne Richemond-Barak (2011) ‘Non-State Actors in Armed Conflict: Issues of Distinction and Reciprocity’ in William C Banks (ed) New Battlefields Old Laws: Critical Debates on Asymmetric Warfare (Columbia Studies in Terrorism and Irregular Warfare) at 2372-79; Whippman ‘Redefining Combatants’ at 701.
108 Article 4(A):
‘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 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.’ (1949 Geneva Convention Relative to the Treatment of Prisoners of War (GC III) of August 12 (1950) 75 U.N. Treaty Series 135).
109 Albeit in a rather inconvenient place, in a convention dealing with the rights of POWs (Richemond-Barak ‘Non-State Actors in Armed Conflict: Issues of Distinction and Reciprocity’
at 2477-85 and 2372-79; Whippman ‘Redefining Combatants’ at 701).
110 This customary law position is codified in GC II article 87 (Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 4).
111 Richemond-Barak ‘Non-State Actors in Armed Conflict: Issues of Distinction and Reciprocity’ at 2477-85; Crane and Reisner ‘Jousting at Windmills’ at 1595-1604.
112 Richemond-Barak ‘Non-State Actors in Armed Conflict: Issues of Distinction and Reciprocity’ at 2386-94; Toni Pfanner ‘Military Uniforms and the Law of War’ (2004) 86
i. Members of the armed forces of a Party to the conflict Regular armed forces
In IHL there is a rebuttable presumption113 that all members of a State’s regular armed forces automatically enjoy full primary combatant privilege114. While it appears as if there are no conditions115 attached to this presumption, the U.K. Privy Council116 maintained that States must ensure that their forces observe the conditions expressed in GC III article 4A(2), ‘notwithstanding the fact that it is not stated expressis verbis in the GC’s or the HR’s’117.
When one looks at the criteria set out in GC III article 4A(2), it is obvious that ‘these conditions were fashioned on the operations of regular armed forces’, who traditionally have been organised ‘subject to hierarchical discipline’118, and normally have belonged to a belligerent party, such that the
‘issue of allegiance scarcely arises’119. Moreover there is a ‘proud tradition of wearing uniforms120, carrying their arms openly’121, and being ‘trained to respect the law of international armed conflict’122.
International Review of the Red Cross 93 at 115; Ipsen (2008) ‘Combatants and Non- combatants’ at 86.
113 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 43.
114 Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 10 and 11. The one exception to this presumption arises when members of the regular armed forces are caught spying while out of uniform. In these cases, they lose their primary combatant status as a result of their perfidious actions (Pfanner ‘Military Uniforms and the Law of War’ at 115).
115 Although Pfanner notes that based on the ‘ordinary reading of GCIII 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 to qualify as POW’ (Idem at 114-115).
116 In Bin Haji Mohamed Ali and Another v Public Prosecutor, Judicial Committee of the Privy Council (U.K.) (29 July 1968) [1969] 1 A.C. 430.
117 Dinstein The Conduct of Hostilities under the Law of International Armed Conflict at 42;
Pfanner ‘Military Uniforms and the Law of War’ at 11.
118 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 47.
119 Ibid.
120 One of those unspoken requirements, is that members of the regular armed forces observe the principle of distinction, which they have traditionally done by wearing uniforms (Jean Pictet (1960) ICRC Commentary on Geneva Convention III ICRC: Geneva at 63;
Pfanner ‘Military Uniforms and the Law of War’ at 94 and 103-104). 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. In fact, the expectation that the State’s armed force would be ‘uniformed was so unquestioningly assumed that no effort was made in any of the IHL treaties to define what constitutes a uniform’ (Michael Cowling and Shannon Bosch ‘Combatant Status at Guantanamo Bay - International Humanitarian Law Detained Incommunicado’ (2009) 42:1 Comparative and International Law Quarterly of South Africa at 1). Academics agree that the term ‘uniform’ is used very loosely to apply to any myriad of ‘distinguishing symbols’ and even to camouflage dress, which is considered a ‘lawful ruse of war’ (Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 44). This clearly calls into question the requirement that the ‘uniform’ is recognisable at a distance (Yves C Sandoz, Christopher Swinarski and Bruno Zimmerman (eds) (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 ICRC/ Martinus Nijhoff: Geneva/Dordrecht at 566). ‘Special forces often wear non-standard uniforms, a phenomenon which is
unobjectionable, provided that the combatants retain some distinctive feature telling them apart from civilians’ … is worth remembering that the principle of distinction is not concerned
Irregular armed forces123
As war evolved, and other voluntary militia groups began to participate more regularly in the theatre of war (often without clothing their members in
traditional military uniform), IHL responded124 by setting out more stringent criteria125 which these irregulars had to fulfil before they could enjoy
combatant status126. The conditions initially set out in GC III article 4A(2),can be summarised as follows:
a) belonging to an organised group127; b) ‘belonging to a party to the conflict’128;
so much with whether ‘combatants can be seen, but whether (if observed) they are likely to be mixed up with civilians’ (Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 43 and 44). As Watkins explains: ‘camouflage and disguise as an ordinary civilian going about his normal pacific activities are different’ (Watkin ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy’ at 29-30).
121 Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 47.
122 Ibid.
123 Also referred to as ‘members of other militias and members of other volunteer corps’ (GC III article 4A(2)).
124 Amongst the changes made to the Hague law, GC III sought to ‘explicitly recognise independent irregular militias, volunteer corps’ and now also organised resistance
movements, on condition that they could prove that they belonged to a party to the conflict (Anthony PV Rogers ‘Unequal Combat and the Law of War’ (2004) 7 Yearbook of
International Humanitarian Law 3 at 14; Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 9).
125 Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 11.
126 Idem at 7. A status which their colleagues in the State’s armed forces seemed to enjoy automatically (Idem at 9 and 11; Cherif Bassiouni ‘The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors’ at 750-751).
127 According to most legal commentators, this requirement can be ‘filled by the most rudimentary elements of military organisation’ (Thomas Mallison and Sally Mallison ‘The Juridical Status of Irregular Combatants Under the International Humanitarian Law of Armed Conflict’ (1977) 9 Case Western Reserve Journal of International Law 39 at 50; Pictet ICRC Commentary on Geneva Convention III at 58).
128 In other words they must fight on behalf of a State party that is engaged in an international armed conflict. According to the commentary, any form of tacit authorisation, control or ‘a de facto relationship between the group and a party to an international armed conflict’ is sufficient to satisfy this requirement (Prosecutor v Tadić ICTY Appeals Chamber (1999) 38 International Legal Materials 1518 at 1537). According to the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals chamber in Tadić, ‘a relationship of dependence and allegiance of these irregulars vis-à-vis that party to the conflict will satisfy this
requirement’ (Ibid). This ‘implicitly refers to ‘a test of control ... by co-ordinating or helping in the general planning of [the associated group’s] military activity’ (Dale Stephens and Angeline Lewis ‘The Targeting of Civilian Contractors in Armed Conflict’ (2006) 9 Yearbook of
International Humanitarian Law 25 at 32; Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 12). Richemond-Barak maintains that the ‘belonging’ requirement set out in article 4A(2), did not require either ‘formal incorporation into the State’s armed forces nor the authorisation of all the armed group’s activities by the State’ (Richemond-Barak ‘Non- State Actors in Armed Conflict: Issues of Distinction and Reciprocity’ at 2534-41). 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’ would be observed (Goldman et al ‘Unprivileged Combatants and the Hostilities in
c) the ‘group must be commanded by a person responsible for his subordinates’129;
d) the ‘group must ensure that its members have a fixed, distinctive sign recognisable at a distance’130;
e) the group’s members ‘must carry their arms openly’131;
f) ‘the group must ensure that its members conduct their operations in accordance with the laws of war’132.
It is necessary to verify that the armed group as a whole is organised, has a responsible commander, and belongs to a belligerent party. Should that be the case, all members of the armed group will benefit from combatant status. Thereafter the last three conditions (d-f) are applicable to the group’s individual members, and must be met ‘continuously and not intermittently’133. Authorities generally agree that all six conditions134 are applicable to the irregular group as a collective135. Consequently, if the group is in the habit of
Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 12).
129 The exact qualifications which the leader needs, or ‘how he obtained his authority is not specified’ - in essence all that is required is that ‘the leader must be responsible for the action taken on his orders’ and he must discipline ‘his 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).
130 Much like the confusion surrounding the definition of the term uniform, there is little by way of guidance in either treaty law or soft law as to what ‘constitutes a distinctive sign’ (Idem at 12-13). 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’, that this would satisfy the requirement (Ibid). From various legal opinions, it is probably safe to conclude that the following items are believed sufficient to constitute a distinctive sign recognisable at a
distance: a helmet, headdress, cap, scarf, coat, shirt, badge, ‘armlet or brassard permanently affixed to their clothing, or an emblem or coloured sign worn on the chest, provided it is worn constantly, in all circumstances’. 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; Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 12-13; 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)).
131 Which is intended to ensure that the opposition are not unfairly taken by surprise by irregulars who approach with pistols concealed beneath their clothing (Goldman et al
‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 13).
132 Idem at 14. For example: ‘not directly attacking civilians; causing disproportionate civilian casualties, or otherwise causing unnecessary suffering and destruction’ (Ibid). Immediately we can appreciate that those engaging in terrorist acts, aimed at spreading fear amongst the civilian population, would fall foul of this criteria, and would not be classified as combatants in terms of GC III.
133Idem 14 -15; Cowling and Bosch ‘Combatant Status at Guantanamo Bay - International Humanitarian Law Detained Incommunicado’ at 25.
134 Yoram Dinstein maintains that the ‘requirements of a lawful combatant’ can be reduced to seven general-cumulative-conditions: (i) subordination to a responsible command, (ii) a fixed distinctive emblem, (iii) carrying arms openly, (iv) conduct in accordance with jus in bello, … (v) organisation, (vi) belonging to a party to the conflict, … [and] (vii) lack of duty of allegiance to the Detaining Power’ (Jensen ‘Direct Participation in Hostilities’ at 1914-21).
135 While the actions of a few ‘bad apples’ in a group will not strip the entire group of its combatant status (provided most of the group observe IHL), it will certainly expose those
flouting any or all of the six requirements, ‘the groups general pattern of behaviour will be extrapolated’ to each individual member, denying them privileged combatant status, and classifying them ‘as civilians participating unlawfully in hostilities’136. Similarly, if the group ‘generally meet all six
conditions, all of the time then an individual member who fails to observe any of the last three criteria (d-f) will not lose his privileged combatant …status upon capture’137, but he will be liable for judicial prosecution for his non- compliance.
Over time, the requirements of article 4A(2) have proved ‘extremely difficult if not, in fact, impossible for irregulars to comply with, without
jeopardising their military operations’138. In 1977 AP I139 addressed the issue of ‘fashioning new rules’140 to ‘create 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’141.
In AP I article 43(1), we find a new definition of ‘armed forces’ (applicable to regular and irregular voluntary corps, militia and other organised groups142), and these are described as:
rogue combatants to ‘individual judicial or administrative prosecution’ for their violations of IHL (Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 50;
Cowling and Bosch ‘Combatant Status at Guantanamo Bay - International Humanitarian Law Detained Incommunicado’ at 25; Evan Wallach ‘Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander?’ (2003) November Army Lawyer at 5; Arfan Khan ‘International and Human Rights Aspects of the Treatment of Detainees’ (2005) 69:2 The Journal of Criminal Law 168 at 178; Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan:
Their Status and Rights Under International Humanitarian and Human Rights Law’ at 14). In instances where ‘there is no conclusive evidence on the groups compliance, each individual will be judged on his own compliance’ (Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 50).
136 William J Fenrick ‘Combatant and POW Status’ (1998) ICRC Seminar on IHL (Lecture delivered at New York University Law School); Cowling and Bosch ‘Combatant Status at Guantanamo Bay - International Humanitarian Law Detained Incommunicado’ at 25.
137 Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 14; Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict at 50.
138 Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 14-16. This fact was recognised in AP I articles 1(4) and 44(3) which reads as follows: ‘recognising, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself’ (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 261 at 272).
139 AP I was drafted to deal with international armed conflicts, while AP II was limited in scope to non-international armed conflicts. Since this chapter is focused on the combatant status of non-State groups in situations of international armed conflict, I shall restrict the following discussions to the developments which arose in respect of AP I only.
140 Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 16.
141 George Aldrich ‘Guerilla Combatants and Prisoner of War Status’ (1982) 31 American University Law Review 87 at 874.
142 Goldman et al ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’ at 17-18; Sossai
‘Status of Private Military and Security Company Personnel in the Law of International Armed Conflict’ at 199-200.