Agenda • Principle of Distinction • Civilians • Combatants • Other Prisoners of War • Unlawful Combatants • Direct Participation in Hostilities • Conclusion
Principles of the Law of War • Military Necessity • Military Objective • Distinction • Discrimination • Proportionality • Unnecessary Suffering / Humanity
Distinction Protocol I, art. 48 • Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
Basic Rules on Lawful Targeting of Persons under IHL Military Necessity Humanity Principleof Distinction Persons not protected against direct attack Persons protected against direct attack Armed Forces of Parties to the Conflict Civilians Civilians Directly Participating in Hostilities Civilians Directly Participating in Hostilities • Armed Forces • Medical & Religious Personnel • Personnel hors de combat
Basic Rules on Lawful Targeting of Persons (US View) Military Necessity Humanity Principleof Distinction Lawful Targets Persons protected against direct attack Civilians Combatants Civilians Directly Participating in Hostilities Unlawful Combatants Lawful Combatants Defined in Art. 4, GPW • Armed Forces • Medical & Religious Personnel • Personnel hors de combat
Combatants and Civilians • Difference key to Principles of the LOW • Combatants • Generally represent the power of the State • Possess Combatant’s Privilege • Lawful and Unlawful • Lawful targets • Civilians • Not lawful targets - protected from attack • Unprivileged belligerents
Civilians • Protected by the Hague and Geneva traditions, but undefined • Includes subset of “protected persons” • Defined as “not combatants” in AP I • Protected from attack • Unless and for such time as they • Directly participate in hostilities
Combatants • Defined by Art. 4, GCIII: • Members of the armed forces • Militia associated with a State, who: • Carry arms openly • Have a chain of command • Wear fixed, distinctive insignia, recognizable at a distance • Comply with the Law of War • Levée en masse
Other Prisoners of War • Lieber Code – the armed forces and those who accompany them • Civilians Accompanying the Force • Contractors, civilian employees • Identification required • No combatant’s privilege • Retained Personnel • Chaplains and Medical Personnel • For so long as they are needed to help PW’s
Combatants • Modified by Art. 43, AP I? • Recognition of special status for anti-colonial forces [giving them “right authority”] • Relaxed distinction requirement [fixed insignia] • Required them only to “carry arms openly” • During attack • And during deployment for attack • Does Art. 44 implicitly recognize Unlawful Combatants?
Unlawful Combatants • Belligerents who fail to qualify as lawful combatants • Members of unqualified armed groups in international armed conflicts • Lieber – “brigands and free-booters” • In re Quirin • Gap between GC III and IV – “illegitimate bearers of arms”?
Habeas Corpus Litigation • Hamdi - right to detain is incident to AUMF • Boumediene established GTMO habeas rights • Contours of the “unprivileged belligerent” definition and March 13th Memo: • Based on AUMF • Part of or substantially supporting • Al Qaeda, Taliban or associated forces • Detention and targeting authority are not the same – members of armed groups are targetable as combatants
Non-International Armed Conflict • Only forces of States are lawful combatants • Members of organized armed groups are of the “party to the conflict”: • They must work under responsible command • Are targetable, distinguished from civilians [see Commentary to Art. 13] • Note: They are not direct participants in hostilities.
Direct Participation in Hostilities • Same concept in international armed conflict (Art. 51, AP I) and non-international armed conflict (Art. 13, AP II) “Civilians are protected from attack unless and for such time as they directly participate in hostilities.” • ICRC Interpretive Guidance (not law): • Useful concepts for discussion • Parts are highly controversial
Direct Participation in Hostilities – ICRC Interpretive Guidance • Helps define membership in armed groups • Functional membership approach • But requires performance of “continuous combat function” • Emphasis on the “combat” function ? • Is there a lack of symmetry with state armed forces? • Continuous Direct Participation: • Establishes equivalent of membership • How often is “continuous”?
Direct Participation in Hostilities • Interpretive Guidance: • Adverse Effect • Causation • Belligerent Nexus • Alternative View – Totality of the Circumstances (above, plus): • Geographic/temporal proximity • Criticality of the function • Integral part of military operations
Examples • Civilians working in an ammunition plant • Contractor driving ammo to the front line • Individual building an improvised explosive device near the site it will be emplaced • CIA agent controlling an unmanned aerial vehicle a thousand miles away • Contractor repairing an aircraft at a forward airfield • Human shields