Status of Person Principles. What Makes a Combatant. Combatants = Uniformed? Open Arms? Organized? Follows LOAC? Does this apply to Armies, or just militia and other armed groups?. Geneva Conventions Today. Unlawful Combatant: Purely descriptive term Not an official status
Does this apply to Armies, or just militia and other armed groups?
Civilians who engage in direct participation in hostilities at the time and place an activity takes place = not protected for duration of ….(depends on status) = Unprivileged belligerents
NONE OF THIS APPLIES IN A COMMON ARTICLE 3 NIAC
International Internal Not a LOW Issue
GC, Part II (general pop.)
PROTECTED PERSON? **
Part III GC, Part II Only
TYPE OF TERRITORY?
Part III, Section II Part III, Section III
Part III, Section IV Part III, Section IV
GCIV (GC) Geneva Convention Relative to the Protection of Civilian Persons in Time of War
* The ICJ held CA3 applies serves as “minimum yardstick” in all conflicts; the ICTY extended CA3 to “any armed conflict”. The U.S. Supreme Court concluded CA3 applies to conflicts “not of an international character” (between two high contracting parties). Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2796 (U.S. 2006). DoDD 2310.01E (5 SEP 06) states that all DoD detainees shall be treated “humanely.”
** Per GC, Art. 4, “protected persons” are those who find themselves, in a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals. These do not include those who are: (1) Nationals of a State not bound by GCs; (2) Nationals of a neutral state finding themselves in belligerent state (non-occupied state) if the State of which they are nationals has normal diplomatic relations with the belligerent State in which they find themselves; consequently, nationals of a neutral state become protected persons in an occupied state; (3) Nationals of co-belligerent (ally) State while State of which they are nationals has normal diplomatic representation in the State whose hands they are; consequently, the whole population of an occupied territory are protected persons except nationals of occupying power; (4) Persons protected by other GCs (i.e, lawful combatants, contractors accompanying the force (see GPW, Art. 4).
“Civilians shall enjoy the protection afforded by this section unless and for such timeasthey take a direct part in hostilities”
Those conducting hostilities face the difficult task of distinguishing between
Where specific act does not on its own directly cause the required threshold of harm,
Ex. Identification and marking of targets, transmission of tactical intel to attacking forces.
Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities.
Civilians directly participating in hostilities do not cease to be part of civilian population, but their protection against attack is temporarily suspended. Protected status restored when engagement in hostile act ends. ICRC, pp. 70-71.
DPH includes acts preparatory to DPH:
- movement to and from objective
- preparing of intel and equipment
- loading of explosives, fueling of vehicles, etc.
“Constitutes a reasonably broad description of direct participation…” Yes or no?
- Al Qaeda
- Viet Cong
- The Wolverines
- In addition to restraints imposed by IHL on specific means and methods of warfare,
The kind and degree of force permissible against unprotected persons,
In other words – If you can capture them – don’t kill them. ICRC, p. 77.
While operating forces can hardly be required to take additional risks for themselves or civilians in order to capture armed enemy,
It would defy basic notions of humanity to kill enemy or refrain from giving him opportunity to surrender where there is “manifestly no necessity” for the use of lethal force. ICRC, p. 82.
1. What does this have to do with “Direct Participation in Hostilities?”
2. Principle of necessity prohibits infliction of suffering, injury or destruction not necessary for accomplishment of legitimate military purposes.
3. But under IHL, attacks are lawful if target is lawful military objective, proportionate, and all feasible precautions taken.
Military Necessity (proportionality)
5. Direct Participation in Hostilities?