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The Issue of STATUS in IHL CECILIE HELLESTVEIT 07.09.09

The Issue of STATUS in IHL CECILIE HELLESTVEIT 07.09.09. THE ROLE OF STATUS IN IHL STATUS AND QUALIFICATION OF ARMED CONFLICT REPERCUSSIONS OF STATUS ON 3 LEVELS : ON THE BATTLEFIELD : 1. CONDUCT OF HOSTILITIES IN DETENTION / AT THE HANDS OF THE ADVERSARY 2. PROSECUTION

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The Issue of STATUS in IHL CECILIE HELLESTVEIT 07.09.09

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  1. The Issue of STATUS in IHLCECILIE HELLESTVEIT 07.09.09 THE ROLE OF STATUS IN IHL STATUS AND QUALIFICATION OF ARMED CONFLICT REPERCUSSIONS OF STATUS ON 3 LEVELS : ON THE BATTLEFIELD : 1. CONDUCT OF HOSTILITIES IN DETENTION / AT THE HANDS OF THE ADVERSARY 2. PROSECUTION 3. TREATMENT PRACTICAL APPROACH TO STATUS

  2. Status in International Humanitarian Law • « humanitarian » = euphemism ? • RULES MADE FOR SITUATIONS OF HOSTILITIES • STATE CANNOT PERFORM THE NORMAL FUNCTIONS AS A STATE • RULES ABOUT HOW TO TREAT YOUR ENEMIES (and neutrals) • the most basic instrument in IHL to mitigate military necessity and humanity : status • status  human beeings separated into categories based on their function and/or relation with a party in a conflict • status  inequality of the rights and obligations of human beeings based on their function (unlike human rights ) • status  obligation to discriminate between these categories of human beings

  3. status has nothing to do with ‘innocence’ or ‘guilt’ : killing or detention in IHL are not PUNITIVE ACTS • status does not influencethe inherent right to individualself-defence • status  is fundamental for protection in IHL • IT PERMEATES THE ENTIRE FIELD OF IHL

  4. Status-’regimes’ vary with the qualification of conflict International ArmedConflict (IAC) Non-international Armed Conflict (NIAC) - International armed conflict (GCart2) - Belligerent occupation (GCart2) - Wars of national liberation API 1(4) The four Geneva Conventions of 1949 & the first additional protocol of 1977  FULL STATUS –REGIME :  Combatant & civilian : clear categories, coherent system - Non-international armed conflict between the state and organized group with territorial control The second additional protocol of 1977 - Non-international armed conflict between the state and groups or between groups Common Article 3 to the four Geneva Conventions  Combatant & civilian : Less clear categories, less coherent system

  5. STATUS IMPORTANT IN 3 MAIN REGARDS : 1) On the battlefield Conduct of hostilities 2) In detentio/ in the hands of the adversary Prosecution Treatment in detention IHL

  6. 1) Status in conduct of hostilities : target immunity Lawfultargets Target immunity • Those who are combatants (API art 43) + • Those who do take part in hostilities (civilians) • Civilians : non-combatants « who do not take direct part in hostilities »

  7. Combatants Civilians • IMMUNITY OF CIVILIANS • Immunity from direct targeting API art 51(2)APII art13 [3] Derivated rules e.g: • Parties to the conflict must distinguish (API art 48) • Combatants obliged to distinguish themselves API art 44 • Prohibition against indiscriminte attacks API art 51(4)

  8. Combatants Civilians • IMMUNITY OF CIVILIANS • Immunity from direct targeting API art 51(2) • Parties to the conflict must distinguish (API art 48) • Combatants obliged to distinguish themselves API art 44 • Prohibition against indistcriminte attacks API art 51(4) LAWFUL TARGETS . Persons directlyparticipating in hostilities DPH API 51(3) Mercenaries API art 47

  9. Conduct of hostilites : • Rules for IAC and NIAC ≈ the same • Is NN a lawful target ? • Is he a combatant ? OR • Is he directly participating in hostilites ? • If ”NO” to both these questions:  NN is a civilian with target immunity ( API art 51(2) and APII art 13 (3))

  10. Basic tenet : all parties must respect the principle of distinction in hostilites Combatant /DPH Civilian • Can be directly targeted BUT : Subject to limitations on means and methods of warfare • Can never be directly targeted • Protected against indiscriminate attacks BUT : * is NOT protected against attack which is expected to cause incidental loss of civilian life which would NOT be excessive in relation to the concrete and direct military advantage anticipated (proportionality in attack)

  11. 2) Status : PROSECUTIONProsecutorial immunity COMBATANTS CIVILIANS • COMBATANTS • Persons who have the right to directly participate in hostilites, (’lawful combatants’) • and cannot be prosecuted for it (’priviledge of combatancy’) • « everyone else »:  Can be prosecuted for engaging in lawful acts of war

  12. Combatant Civilian • POW- no prosecution for lawful acts of war (GCIII art 87) • A combatant becomes a POW when he falls into the power of the adversary (API art 44) • The right to be a POW : GCIII art 4 • Members of the armed forces of a party to the conflict, militias and volunteer corps forming part of such forces • Other militias or volunteer corps fulfilling the 4 criteria of commander, distinctive sign, openly carrying weapons and conducting their operations in accordance with the laws of war • etc • A civilian who has directly participated in hostilities and does not have the right to be POWs, may be prosecuted for lawful acts of war (APIart 45) • (Special rules , spies etc)

  13. CombatantCivilian • IMMUNITY OF COMBATANTS • Immunity from prosecution for lawful acts of war • IMMUNITY OF CIVILIANS • Immunity from direct targeting PARTICIPATE DIRECTLY IN HOSTILITIES Combatant who has been captured while breaking the rule of distinction in API 44(3) and (4) – in civilian clothing, not carrying arms openly  looses combatant status POW (GC III) Spying AP 46 ”Treated as POW”

  14. Combatant Civilian • IMMUNITY OF COMBATANTS • Immunity from prosecution for lawful acts of war • IMMUNITY OF CIVILIANS • Immunity from direct targeting PARTICIPATE DIRECTLY IN HOSTILITIES Combatant in civilian clothing and not carrying arms opely (API 44(3) and (4) ) If a civilian endangers the principle of distinction between combatants and civlians by participating in hostilities  he looses his privilegde of immunity of civilians: he can be directly targeted ( and can be prosecuted for lawful acts of war) If a combatant endangers the principle of distinction between combatants and civilians by not distinguishing himself properly  he looses his priviledge of immunity of combatancy: He can be prosecuted for lawful acts of war (and can be directly targeted)

  15. IAC NIAC • COMBATANT – clearly defined  has immunity from prosecution for lawful acts of war • CIVILIAN –negatively defined from combatant •  does not have the right to participate in hostilites , and thus does not have immunity for such acts • COMBATANT : not defined Members of State armed forces have immunity from prosecution (customary law) • EVERYONE ELSE  can be prosecuted for engaging in lawful acts of war • But may be given amnesty (‘subsequent immunity’) APII art 6 (5)

  16. Status : TREATMENT IN THE HANDS OF THE ADVERSARY COMBATANTS CIVILIANS • Prisoners of War GC III (art 4) • Soldiers hors de combat Sick, wounded, surrendered On land : GC I (“protected persons” art 13) At sea : GC II (“protected persons” art 13) • GCIV « protected persons » (art 4) • In the hands of a Party…of which they are not nationals » • Not protected by GCI-III

  17. CombatantsCivilians Persons DPH • IMMUNITY OF COMBATANTS Immunity from prosecution for lawfulactsofwar • IMMUNITY OF CIVILIANS Immunity from direct targeting Regime of Treatment in Detention Minimum protection API art 75 • POW (GC III) • Combatant • ’Non-combatants’ in army GC III art 4A no1 • Accompanying personell • GC III art 4A no4 Detained civilians GC IV (section IV), API (section III) DPH, ( art 45(3)

  18. Treatment at the hands of the adversary/ in detention IAC NIAC • System based on States on both sides ( enemy combatants, enemy civilians, but NEUTRALIZED with regard to the conflict) • Basic rules of protection • Inequality : state versus non-state actors • Few rules in IHL • Interaction / support of International Human Rights Law for state actor

  19. STATUS IMPORTANT IN 3 MAIN REGARDS : 1) Battlefield Conduct of hostilities Rules of IAC ≈ NIAC 2) In detentio/ in the hands of the adversary Prosecution Rules of IAC : clear system Rules of NIAC : rudimentary/one sided Treatment in detention Rules of IAC = fully fledged system of IHL Rules of NIAC = very different. Rudimentary in IHL, other rules to support ( human rights etc) IHL

  20. Practical approach Example : Afghanistan • Two trucks loaded with fuel are highjacked by the Taleban. The Germans call in airsupport, the trucks are bombed. Approx. 90 people die. Many burned to death. • Was the attack lawful ?  Must determine status

  21. Status should be determined based on • 1) the conflict APPLICABILITY OF IHL • 2) the parties  QUALIFICATION OF CONFLICT – IAC / NIAC) • 3)the link of a given person to a party to the conflict  STATUS THUS : • 1) does IHL apply ? • 2) what regime of IHL applies ? • 3) what status do the humans involved have in relation to this conflict ?

  22. IF ”Combantants”/ ”DPH” IF « Civilians with target immunity » Did they use lawful means and methods of warfare against the lawful targets? Did they know that the were civilians with target immunity and still intentionally targeted them ? Principle of distinction Should they have known ? Precaution in attack If they did know, but decided to attack anyway( but without intentionally targeting them) : Did they use a means/ method that could be directed at the military target only? Prohibition of indiscriminate attacks Did they respect the principle of proportionality ? Was the expected loss of civilian life excessive in relation to the concrete and direct military advantage anticipated ? Principle of proportionality

  23. SUM UP • Status is crucial, and relevant for almost every question of IHL • Status is more complex than the core division between « those who fight » versus « those who do not fight ». • The status ‘regimes’ vary with the qualification of conflict • Status works differently on different levels (hostilities, prosecution, detention). • The status ‘regimes’ of IAC – NIAC are similar with regard to hostilities, less with prosecution and least with detention. • The main reason behind the complexity of the rules of status is the desire to enhance and protect the principle of distinction ( on the battlefield) • Status should be determined based on • 1) the conflict ( APPLICABILITY OF IHL) • 2) the parties (QUALIFICATION OF CONFLICT – IAC / NIAC) • 3)the link of a given person to a party to the conflict (STATUS)

  24. neutralisation of combatants ( but not more destruction than what is necessary), • Distinction between combatants and civilian population (API 48) • Target immunity for civilians and civilian population ( API ar 51 (2) • Only military objectives can be directly attacked ( API art 52 (2) • protection of civilians against the dangers arising from military operations (API 51(1))

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