HUMANITARIAN LAW CONCEPT OF DIRECT CIVILIAN PARTICIPATION IN HOSTILITIES: LITERATURE REVIEW 65 4.1 Brief introduction to the concept of direct participation in hostilities 203 6.6 Conclusions on the primary status of PVSC 204 6.7 PVSC and the concept of direct participation in hostilities 206.
INTRODUCTION
Research hypothesis and rationale
Recent international and non-international armed conflicts have witnessed greater levels of involvement by a variety of non-state actors. Hypothesis and rationale for limiting this analysis to the legal regime applicable to international armed conflicts.
Research framework
Shannon Bosch 'The International Humanitarian Law Notion Of Direct Participation in Hostilities – A Review of the ICRC Interpretive Guide and Subsequent Debate' (ready for submission for publication)106. Chapter 6, which is entitled 'The combatant status of private military and security contractors in international armed conflicts, in light of the.
Introduction
Defining the term ‘combatant’
These servicemen within the ranks of the armed forces are 'denied permission to use a weapon or weapon system'27 and are therefore called non-combatant28 members of the armed forces29. Furthermore, although these members of the armed forces play a non-combatant role, they remain subject to the "dangers arising from the military".
The privileges attached to the authorisation to participate in hostilities: immunity from prosecution and secondary POW status
Moreover, if they fell into the hands of the enemy, they would not retain the status of POWs, strictu sensu, "although they are POWs in appearance"42. The privilege of being an authorized combatant also carries the benefit of presumptive54 secondary POW status in the event that.
The consequences attaching to combatant status: continuous lawful targeting and prosecution for violations of IHL
That said, their authorization comes with the caveat that they are required to abide by the laws of war53. A second consequence attached to their combatant status is that their authorization to take part in hostilities comes with the condition that they observe the laws of war.
Forfeiture of POW status and exposure to criminal prosecution As mentioned in the introductory comments, the objective of ‘insulating
Moreover, since their combatant status derives from their membership in the armed forces, they remain. 78 This includes volunteer and militia forces that are part of the state's armed forces.
Combatant status prior to the IHL conventions
It is worth reiterating that they never lose their combat status as they remain members of the armed forces. So for example, even if the military spy were caught behind enemy lines and claiming civilian status, he would still remain a "member of the armed forces."
Combatant status under the Hague Conventions of 1899 and 1907 The Hague Conventions of 1899 and 1907 and their regulations (collectively
Nevertheless, we see from the definition of Hague law that distinction by the use of an emblem and the open carrying of arms are conditions for obtaining the privilege of fighting, which once again underlines the importance of the principle of distinction.
Combatant status under the Geneva Conventions of 1949
One of these unspoken requirements is that members of the regular armed forces must observe the principle of distinction. Underprivileged combatants and hostilities in Afghanistan: their status and rights under international humanitarian and human rights law" on 13.
Combatant status under Additional Protocol of 1977
204 Goldman and Tittemore 'Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights under International Humanitarian and Human Rights Law' at 18. 207 Goldman and Tittemore 'Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights under International Humanitarian and Human Rights Act on Rights" at 6 p.m.
Conclusion
The historic emergence of the concept of civilian status
During the war years, the International Committee for the Red Cross (ICRC) prepared a "draft convention for the protection of. The Geneva Convention14 (GCIV) became "the first treaty devoted exclusively to the protection of civilians in time of war"15.
Defining the term ‘civilian’
27 Claude Pilloud and Jean Pictet (1987) Commentary on the additional protocols: article 50 Martinus Nijhoff Publishers: Geneva 609 at 610; ICRC Interpretive Guidance on the Concept of Direct Participation in Hostilities under International Humanitarian Law, 21. 28 Pilloud and Pictet Commentaries on the Additional Protocols: Articles 50, 610; Interpretive guidance from the ICRC on the idea of direct participation in hostilities under international humanitarian law at the age of 21.
Presumptive civilian status
The privileges attached to civilian status: immunity against targeted attacks
This principle is expressed in Articles 51(5)(b) of AP I and Article 57(2)(a)(iii) and gave rise to what is called the proportionality inquiry:46 "to determine whether an attack was proportionate, it is necessary .to consider whether a reasonably well-informed person in the current perpetrator's circumstances, using the information reasonably available to him or her, could have expected the attack to result in excessive civilian casualties'47. Consequently, when the victims civilians result from an attack that meets the requirements of proportionality, it 'does not constitute a violation of the laws of war'48.
The consequences attaching to civilian status: the notion of direct participation in hostilities
Regardless of this legal position, "there can be no guarantee that attacks against combatants and other military targets will not result in civilian casualties within or near such military targets"41 as "the unintended product of an attack directed against legally"42. The moment civilians begin to participate in hostilities, they pose a threat to the opposition and are exposed to legitimate direct targeting53 "for a time when they directly participate in hostilities"54.
Civilian direct participation in hostilities: the ‘unlawful combatant’, and the forfeiture of civilian status
60 Zachary argues that “the term was probably deliberately ignored” (Zachary “Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?” at 386). 62 ICRC 'International Humanitarian Law and the Challenges of Contemporary Armed Conflict International Review of the Red Cross 719 at 727; Solis The law of armed conflict: international humanitarian law in 208 and 238; Zachary “Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?” at 385.
The consequences of unauthorised direct participation in hostilities on the part of civilians
If you do not act like a civilian, that does not mean that he will be a combatant96, nor will failure to observe the principle of distinction make a combatant a civilian (instead, he will remain a combatant but lose his POW privileges). In addition, civilians participating in hostilities are particularly at risk of being found to have conducted their hostilities in a manner that "could amount to perfidy and a violation of customary and treaty international humanitarian law"105, as they rarely show themselves as fighters.
Persons accompanying the armed forces
118 Interpretive guidance of the ICRC on the concept of direct participation in hostilities under international humanitarian law at 37. 134 Interpretive guidance of the ICRC on the concept of direct participation in hostilities under international humanitarian law at 37.
Conclusion
A brief introduction to the concept of direct participation in hostilities
11 ICRC Interpretive Guide on the Concept of Direct Participation in Hostilities under International Humanitarian Law at 12. 14 PCATI v Government of Israel at para 26; ICRC Explanatory Guide to the Concept of Direct Participation in Hostilities under International Humanitarian Law on 12
The treaty and customary international law basis for the rule limiting civilian direct participation in hostilities
In the final analysis, the commentary on AP I 'suggests a narrow interpretation of direct participation in hostilities'28. 29 Interpretive Guide of the ICRC on the notion of direct participation in hostilities under international humanitarian law at 41.
A brief introduction to the ICRC's Interpretive Guide on the notion of direct participation in hostilities under IHL
49 ICRC Interpretive Guide on the notion of direct participation in hostilities under international humanitarian law at 9. 58 ICRC Interpretive Guide on the notion of direct participation in hostilities under international humanitarian law at 9.
The specific hostile acts which amount to direct participation in hostilities
190 Melzer 'Balancing military necessity and humanity: a response to four criticisms of the ICRC's interpretative guidance on the concept of direct participation in hostilities' at 865. 202 Melzer 'Balancing military necessity and humanity: a response to four Criticism of the ICRC's Interpretative Guidance on the Concept of Direct Participation in Hostilities' at 865.
The temporal element of the loss of protection: ‘for such time as’
283 Boothby ‘“And For Such Time As”: The Time Dimensions to Direct Participation in Hostilities’ at 747. Boothby ‘“And For Such Time As”: The Time Dimensions to Direct Participation in Hostilities’ . op 758).
The ‘continuous combat function’ and its implications for civilians participating directly in hostilities
Necessity and Humanity: A Response to Four Critiques of ICRC's Interpretive Guide on the Notion of Direct Participation in Hostilities' på 883. 393 Melzer 'Keeping the Balance between Military Necessity and Humanity: A Response to Four Critiques of ICRC's Interpretive Guidance on the Interpretive Guidance Begrebet direkte deltagelse i fjendtligheder' på 837.
Presumptions in assessing direct participation in hostilities
412 Schmitt '"Direkte deelname aan vyandighede" en 21ste eeu gewapende konflik' op 505 en 509; Melzer 'Keeping the Balance between Military Necessity and Humanity: A Response to Four Critiques of the ICRC's Interpretive Guidance on the Notion of Direct Participation in Hostilities' by 875. 415 Idem by 505; Melzer 'Keeping the Balance between Military Necessity and Humanity: A Response to Four Critiques of the ICRC's Interpretive Guide on the Notion of Direct Participation in Hostilities' by 875.
The legal consequences for civilians found participating directly in hostilities
Conclusion
431 Melzer 'Balancing Military Necessity and Humanity: A Response to Four Criticisms of the ICRC Interpretive Guidelines on the Concept of Direct Participation in Hostilities' at 914. 433 Melzer 'Balancing Military Necessity and Humanity: A Response to Four Criticisms of the ICRC Interpretive Guidelines on the Concept of Direct Participation in hostilities' at 877.
5.1 Introduction
The international law response to the issue of recruiting under-aged child soldiers: IHL, international and regional human rights law,
49 Goodwin-Gill Child Soldiers: The Role of Children in Armed Conflict - A study on behalf of the Henry Dunant Institute at the age of 61. 57 Goodwin-Gill's Child Soldiers: The Role of Children in Armed Conflict - A Research on behalf of Henry Dunant Institute at 61.
The combatant status of under-aged child soldiers recruited into non-State-armed groups in international armed conflicts
170 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities under IHR at 12 and 41. 260 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under IHR at 73 and 83.
Under-aged child soldiers recruited to participate directly in hostilities in non-State-armed groups - assessing combatant and
Persons who fall into the hands of an adversary while engaged in espionage shall be punished' (Ipsen (1995) 'Combatants and non-combatants' at 110; Henckaerts and Doswald-Beck customary international humanitarian law at 16 and Rule 106-108; Goldman ' Underprivileged combatants and hostilities in Afghanistan: their status and rights under international humanitarian and human rights law' at 10). 292 If members in general (i.e. as a collective) 'fulfill all 6 conditions at all times, then individual members who fail to comply with any of 4-6 will not lose their privileged combatant or POW status upon capture' (Goldman 'Unprivileged Combatants and hostilities in Afghanistan: their status and rights under international humanitarian and human rights law' at 14).
Prosecuting under-aged child soldiers recruited into non-State- armed groups
The statute of the SCSL permitted the prosecution of child soldiers over the age of fifteen. 347 Grover ``Child Soldiers'' as ``Non-Combatants'': The Inapplicability of the Refugee Convention Exclusion Clause' at 57.
Conclusion
Sadly, those child soldiers over the age of fifteen are still legally able to consent to conscription, and without. When these child soldiers are recruited into a non-armed group by the state, which does not meet the requirements of IHL for an "armed group", they are classified as civilians, even though they are participating in hostilities.
Introduction
Humanitarian Principles, Private Military Agents: Some Impplications of the Privatised Military Industry for the Humanitarian Community' by 3. 10 Singer 'Humanitarian Principles, Private Military Agents: Some Impplications of the Privatized Military Industry for the Humanitarian Community' by 3.
The importance of primary status under IHL and its legal consequences
77 De Nevers 'Private security companies and the laws of war' at 172; See 'Combatant, Noncombatant, Criminal: The Importance of Distinction' at 177. 78 Combatants who violate the laws of war may be subject to disciplinary proceedings or military prosecution (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).
PMSCs as ‘combatants’
140 Goldman et al. 'Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law' at 16. 198 Goldman et al. 'Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law' on 18.