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The Fundamental Distinction between Civilians and Combatants

Who are civilians?
A civilian is any person who does not belong to one of
the categories of persons referred to in Article 4 A 1),
2), 3) and 6) of the Third Convention and in Article 43
of Additional Protocol 1
The armed forces of a Party to a conflict consist of all
organized armed forces, groups and units which are
under a command responsible to that Party for the
conduct of its subordinates, even if that Party is
represented by a government or an authority not
recognized by an adverse Party. (Art 43, AP1)
Civilians are persons who are not:
1) Members of the armed forces of a Party to the
conflict as well as members of militias or volunteer
corps forming part of such armed forces
2) Members of other militias and members of other
volunteer corps, including those of organized
resistance movements
3) Members of regular armed forces who profess
allegiance to a government or an authority not
recognized by the Detaining Power.
4) Inhabitants of a non-occupied territory who, on the
approach of the enemy, spontaneously take up arms to
resist the invading forces, without having had time to
form themselves into regular armed units, provided
they carry arms openly and respect the laws and
customs of war (Art 4, GCIII)

Activities and activities
Civilians DO NOT take a direct part in the hostilities
Combatants have the right to take part in the
hostilities
When Punishable
Civilians
May be punished for their mere participation in the
hostilities
Combatants
May not be punished for their mere participation in
the hostilities
Direct Participation in hostilities
threshold of harm
-the act must be likely to adversely affect the military
operations or military capacity of a party to an armed conflict
direct causation
direct causal link between the act and the harm likely
to result either from that act, or from a coordinated
military operation of which that act constitutes an
integral part
Belligerent Nexus
the act must be specifically designed to directly cause the
required threshold of harm in support of a party to the conflict
and to the detriment of another
Protection
Civilians
Are protected because they do not participate:
as civilians in the hands of the enemy
against attacks and effects of hostilities
Combatants
Are protected when they no longer participate:
if they have fallen into the power of the enemy
if wounded, sick or shipwrecked
if parachuting out of an aircraft in distress
are protected against some means and methods of
warfare even while fighting
Full Complementarity
Is everyone who is not a combatant a civilian?
Is there an intermediate category of unlawful
combatant?
Unlawful Combatants
Those who do not fall into the category combatants
are, be definition, civilians. There is no third category
of unlawful combatants.- Professor Cassese
HOWEVER, a civilian who participates in combat
activities loses protections granted to him and may be
a legitimate military target.
Unlawful Combatants
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Not explicitly referred to in IHL treaties
Refers to civilians who have directly participated in
hostilities in an international armed conflict without
being members of the armed forces as defined by IHL
and who have fallen into enemy hands
Unlawful Combatants
Generally, civilians enjoy immunity from attack UNLESS
and for such time as they take a direct part in
hostilities, civilians as opposed to combatants may
also be criminally prosecuted under domestic law for
the mere fact of having taken part in hostilities
unprivileged belligerents or unlawful combatants
Direct Participation in Hostilities
To engage in a specific attack or attacks on an enemy
combatant or object during a situation of armed
conflict
Article 49 (1) AP I: Attacks mean acts of violence
against the adversary, whether on offence or defence
Unlawful Combatants
In Enemy Hands:
First school of thought: Unprivileged belligerents are
covered only by the rules contained in Article 3
common to the four Geneva Conventions
Article 75 of AP I, applicable either as treaty law or
customary law
Unlawful Combatants
Second school of thought:
Shared by the ICRC
Civilians who have taken direct part in hostilities and
who fulfill the nationality criteria set out in the fourth
Geneva Convention (Article 4) remain protected
persons within the meaning of that Convention
Israel Targeted Killings Case
Unlawful combatants are:
People who take active and continuous part in armed
conflict
Should be treated as combatants in the sense that they
are legitimate targets of attack
They do not enjoy protections granted to civilians
Not entitled to status of POW
Israel Targeted Killings Case
Basic Principle: Civilians taking a direct part in
hostilities are not protected as such at the time they
are doing so
The Red Cross Manual similarly states: Civilians are
not permitted to take direct part in hostilities and are
immune from attack. If they take a direct part in
hostilities they FORFEIT THIS IMMUNITY.
Fundamental Obligation of Combatants to Distinguish
Themselves from Civilian Population
Rule 106. Combatants must distinguish themselves
from the civilian population while they are engaged in
an attack or in a military operation preparatory to an
attack. If they fail to do so, they do not have the right
to prisoner-of-war status.
Additional Protocol I imposes the obligation to
distinguish oneself from the civilian population on all
members of armed forces, whether regular or
irregular.
Additional Protocol I recognizes the generally
accepted practice of States with respect to the wearing
of the uniform by combatants assigned to the regular,
uniformed armed units of a Party to the conflict,
although the Protocol, like the Hague Regulations and
the Third Geneva Convention, does not explicitly make
this a condition for prisoner-of-war status.
State practice indicates that in order to distinguish
themselves from the civilian population, combatants
are expected to wear a uniform or a distinctive sign
and must carry arms openly.
Participants in a leve en masse, namely the
inhabitants of a country which has not yet been
occupied who, on the approach of the enemy,
spontaneously take up arms to resist the invading
troops without having time to form themselves into an
armed force, are considered combatants entitled to
prisoner-of-war status if they carry arms openly and
respect international humanitarian law.
According to Additional Protocol I, in situations of
armed conflict where owing to the nature of the
hostilities an armed combatant cannot ... distinguish
himself from the civilian population while he is
engaged in an attack or in a military operation
preparatory to an attack, he shall retain his status as a
combatant, provided he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the
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adversary while he is engaged in a military
deployment preceding the launching of an
attack in which he is to participate.
Article 44 of Additional Protocol I
3. In order to promote the protection of the civilian
population from the effects of hostilities, combatants
are obliged to distinguish themselves from the civilian
population while they are engaged in an attack or in a
military operation preparatory to an attack.
Recognizing, however, that there are situations in
armed conflicts where, owing to the nature of the
hostilities an
armed combatant cannot so distinguish himself, he
shall retain his status as a combatant, provided that, in
such situations, he carries his arms openly:

(a) during each military engagement, and

(b) during such time as he is visible to the adversary
while he is engaged in a military deployment preceding
the launching of an attack in which he is to participate.

Acts which comply with the requirements of this
paragraph shall not be considered as perfidious within
the meaning of Article 37, paragraph 1
Pius Nwaoga v. The State
The appellant was convicted for murder of the
deceased who was also a soldier in rebel forces and a
native of the appellants hometown. The appellant
argued that he was following orders when the
deceased was killed and the learned trial Judge had
held that it was an illegal regime. The learned judges in
making their judgement relied on a passage from
Oppenheim's International Law, 7th Edition volume II
at p. 575, dealing with War Treason. Appellants
conviction was upheld and appeal was dismissed.
Osman v. Prosecutor
The appellants were two members of the armed forces
of Indonesia who planted a bag containing
nitroglycerine in a non-military building in Singapore.
The explosion caused the deaths of three persons. The
two soldiers were later arrested wearing civilian
clothing and without identity cards. They were charged
with the murder of the three civilians. At their trial,
they claimed to be members of the Indonesian armed
forces and entitled to the protection of the Third
Geneva Convention. The trial judge rejected the claim,
convicted them of murder and sentenced them to
death. Their appeals to the Federal Court of Malaysia
were dismissed. The Judicial Committee of the Privy
Council confirmed the decision of the Federal Court. It
held that, assuming that there was an armed conflict
between Indonesia and Malaysia and that the Geneva
Conventions therefore applied in Singapore, members
of armed forces who committed acts of sabotage and
were arrested while dressed in civilian clothes were
not entitled to be treated upon capture as prisoners of
war. As the Committee had reached the decision that
the appellants could not claim the right to be treated
as prisoners of war, it declined to decide whether the
attack on a non-military building in which there were
civilians was a breach of the laws and customs of war
by virtue of which they had forfeited their right to be
treated as prisoners of war.
Relativity of Distinction in Modern Armed Conflict
Relativity of Distinction in Modern Armed Conflict
Guerilla Warfare
- Combatants mix with and disguise as civilians
- Example: Albanian Paramilitary (UCK) members
dispersed among demonstrators and shot at security
forces (Yugoslavian conflict)
Wars of Extermination
Civilians become the object of the attack
Example: The Conflict in the Great Lakes Region
-Many Tutsi and even moderate Hutu civilians were
directly targeted by Hutu extremists
-The civilians were targeted, in many cases, solely because of
their membership to a certain ethnic group and for no other
objective reason
The War on Terror
In the Conduct of Hostilities
Can they be attacked until they are hors de combat or
only while they directly participate in hostilities?
To say that a global international war is being waged
against groups such as Al-Qaeda would mean that,
under the law of war, their followers should be
considered to have the same rights and obligations as
members of regular armed forces.
The War on Terror
Once in Enemy Hands
Are they protected civilians or can they be detained
like combatants without any individual decision, but
not benefit from POW status?
Distinguish IAN and NIAC
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The War on Terror
No nation would contemplate exempting members of
non-state armed groups from criminal prosecution
under domestic law for acts of war that were not
prohibited under international law which is the crux
of combatant and POW status
Civilianization of Armed Conflicts
Private Military and Security Companies (PMSC)
-PMSC staff normally do not fall under the very
restrictive definition of mercenaries in IHL.
Most of them are not de jure or de facto incorporated
into the armed forces of a party and are therefore not
combatants but civilians.
As civilians, PMSC staff may not directly participate in
hostilities
Certain Guidelines
There is direct participation in hostilities if:
-if they defend combatants or military objectives against the
adverse party
-If those objects, transports or persons guarded by PMCS
personnel are not protected against attacks in IHL (combatants,
civilians directly participating in hostilities), guarding or defending
them against attacks constitutes direct participation in hostilities
There is no direct participation if:
They defend military targets against common criminals
They defend civilians and civilian objects against
unlawful attacks
Resist attackers not belonging to a party to the conflict