Lesson 7: Status, rights, and obligations of individuals in armed conflicts Flashcards
What are the two main and mutually exclusive categories of individuals under IHL?
Civillians & Combatants
What are the defining features of combatant status? Which four categories of persons are entitled to combatant status? Do all members of the armed forces of the parties enjoy combatant status? Does it make any practical difference?
1) Members of the armed forces belong to a party to the conflict except medical and religious personnel
Militias and voluntary corps that form part of the armed forces (formally incorporated)
2) Partisan and resistance fighters not formally incorporated but belong to one of the parties if: under responsible command, distinctive sign, carrying arms openly and obeys to the laws of war. (1949 GC III, art. 4)
3) Levée en masse (only according to GCIII, not AP1) - if the civilians of the threatened territory spontaneously take up arms in order to resist the invasion
4) National liberation and Guerilla fighters : if the conditions for partisan fighters are met, but the criteria of carrying arms openly has been relaxed
Privileges:
- Entitled to take direct part in hostilities, immunity for actions within IHL.
- Entitled to PoW Status upon capture
- Lawful targets
- Required to distinguish themselves from the civilian population by - if not, loss of POW status
What is the defining criteria of civilian status and what is the condition for protection against attacks? What are the most challenging elements of art. 51 (3)
Anyone not covered by the requirements of a combatant
- Civilians are protected against (direct) attacks (immunity)
- Loose protection from attacks if DPH
- No POW status or immunity for acts committed in DPH
Art 51 does not provide a definition of DPH, however customary law seem to suggest that they engage in acts of violence or direct participation in the hostilities, such as carrying out military operations, attacks on enemy forces, or similar activities that directly contribute to the military effort
What is the primary problem with the ICRCs approach to direct participation in hostilities (DPH) – why have states rejected the proposition of the guidance?
The Interpretive Guidance has been criticised for taking too liberal an approach to determining DPH - the guidance promotes a set of norms or principles that are challenging for states involved in armed conflict to endorse or accommodate
What are the most important tenets of POW status and rights?
Combatants and non-combatant (civilian) members of armed forces - Medical personel and chaplains - are entitled to PoW status.
- Prohibition of torture
- Prohibition of any unlawful act or omission causing death or seriously endangering the health of a POW,
prolonged questioning, omission of medical care to the wounded and sick; pro-longed deprivation of sanitary facilities; prolonged deprivation of physical, intellectual and recreational pursuits; keeping prisoners in a danger zone; - Respect for their person or honour and protection against public curiosity.
What is the legal status of mercenaries?
is specially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict,
material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
is not a member of the armed forces of a Party to the conflict; and (f) has not been sent by a State which is not a Party to the conflict on official duty
as a member of its armed forces.
Not a prohibition of mercenaries, just a denial of Combatant status!
PMSCs will not meet d) as many contractors are either local companies or companies resident in a party to the conflict.
In which situations can employees of private military companies obtain combatant status?
If they are incorporated into the armed forces under article 4A of the GC
What categories of individuals exist in no-international armed conflicts (NIAC)? Which law protect those who fall into custody of the enemy in NIACs? How does this differ from International armed conflicts IACs?
No legal basis in IHL for detention in NIAC, only acceptance of the fact that it will happen and therefore regulation to ensure minimum standards of treatment. The basis must be found in IHRL or domestic law (Both Common Article 3 and AP II clearly acknowledge the possibility of detention but neither instrument provides explicit authority to detain)
-should be treated according to APII art. 5 and 6
Captured MOAGs and other civilians DPH can be detained
Does the Israeli High Court approach to the status of Palestinian terrorist group members in the targeted killing case make sense? Do you agree that there is no room for a third category of unlawful combatants? How does that fit with Bellingers argument in his Opinio Juris Blog post? How does Marco Sassoli describe the US approach?
Sassoli’s argument that in international armed conflicts no one can fall between the 3rd and 4th GC is important. When applied to Ukraine, where would that leave members of the Wagner group?
Who can be lawfully attacked in NIACs?
- Members of state armed forces (Yes)
- Civilians who DPH (Yes)
- All MOAGs (No)
- MOAGs with continuous combat function (Yes)
What are the rules of spies?
A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party (Article 29 of the Hague Regulations)
The element of being captured out of uniform while engaging in espionage is key. Those captured in uniform are not conducting espionage under IHL and will therefore enjoy POW status upon capture
