Individual Battlefield Status PDF

Individual Battlefield Status 07.11.2024 14.05 The Law of Armed Conflict...

Individual Battlefield Status 07.11.2024 14.05 The Law of Armed Conflict ISBN 9781108917797 6 Individual Battlefield Status 6 Individual Battlefield Status 6.0 Introduction We have resolved, more or less, the first foundational question that a law of armed conflict (LOAC) student should answer regarding any armed conflict: What is the conflict status – what law of war, if any, applies in the armed conflict under consideration? Now the second, and last, foundational question: What are the statuses of the participants in that conflict? For example, are they combat‐ ants or are they unprivileged belligerents? Some of them or all of them? Are they civilians or insurgents? Prisoners of war (POWs) or re‐ [email protected], Thu, 07 Nov 2024 13:04:57 GMT tained personnel, and so on. The first foundational question, conflict status, remains critical because it determines what LOAC is, and is not, applicable to the conflict. Domestic law? Or LOAC? The entire spectrum of LOAC or only some of it? The answer may be the difference between a criminal trial for murder in a domestic civilian court and POW status with the protection of combatant immunity. The second foundational question, the individual status of those on the battlefield, is just as significant but in a personal way. Individual status determines the rights and protections afforded a captured combatant, as well as the privileges and prohibitions that apply to his/her conduct. If you are the officer-in-charge of a military unit ordered to parachute into, say, an African country that has requested US train‐ ing assistance, and several US Army trainers have already been kidnapped and murdered by a splinter rebel group in the course of an in‐ ternal rebellion, you know that you probably are going into a common Article 3 non-international armed conflict (NIAC) in which 1977 Additional Protocol II probably does not apply, but common Article 3 does – you know before you pull the ripcord the LOAC that will probably apply on your battlefield. You also want to know if you are going to jump as part of a uniformed airborne unit, or in civilian clothes, or disguised as a local resident or as a soldier from a neighboring country. Different statuses are involved, each dictating how you should conduct yourself and how you should be treated if captured. True, if you are captured by insurgents, it probably will not matter what Geneva calls for, you are in for a hard day. One does not, however, observe or disregard LOAC according to the enemy’s conduct. We observe LOAC because, as a nation, we have pledged to do so through our ratification of particular LOAC-related treaties. We respect LOAC and customary law because they are the law and because it is the right and honorable thing to do. As high-sounding as that may sound, it is the international law we obey. Our further discussion of individual status is guided in part by the International Committee of the Red Cross’s (ICRC’s) authoritative 1960 and 1958 Commentaries to Geneva Convention III and IV. The ICRC’s 2020 Commentary to Convention III, and later Commentary to Convention IV, were not published as of this writing. Any recognized difference in LOAC between the older and newer editions that affects this text will be accounted for in this writing. 6.1 Individual Status There are assembly line workers, shop stewards, and foremen; there are assistant professors, professors, and deans. There are army colonels and army sergeants; navy ensigns and navy captains. In American law schools there are 1-Ls and 3-Ls. Each has a different status in the educational, military or career system within which the individual functions. Status often dictates one’s autonomy, authority, salary, office location, vacation length, and parking space – in a sense, one’s way of life. On the battlefield, individual status may determine your life, in a literal sense. It determines if you are a lawful target or not; a POW or a spy, a combatant or a noncombatant. https://ereader.cambridge.org/wr/printpage.html Side 1 af 33 Individual Battlefield Status 07.11.2024 14.05 On the battlefield, no one is without a LOAC status and an accompanying level of humanitarian protection. In short … [there is] a general principle which is embodied in all four Geneva Conventions of 1949. Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or, again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.1 There are many possible individual statuses on the battlefield. We examine several that, combined, represent the bulk of the individuals encountered in common Article 2 international armed conflicts (IACs) and common Article 3 NIACs. 6.2 Civilians What might be the first rule of LOAC for combatants: Civilians may never be the object of attack, unless they are taking a direct part in hostilities. “Targeting civilians or civilian property is an offence when not justified by military necessity.”2 On a battlefield, who is a civil‐ ian? The Geneva Conventions do not define “civilian.” Instead, they use the term “protected person” in reference to individuals who are protected by the Conventions.3 The two 1977 Additional Protocols also refer to civilians without defining them. Additional Protocol I, Article 50 does say, “A civilian is any person who does not belong to one of the categories of persons referred to in [Convention III, Arti‐ cle 4A, as a potential prisoner of war].” The US Department of Defense Law of War Manual defines a civilian as “a person who is neither part of nor associated with an armed force or group, nor otherwise engaging in hostilities.”4 If the individual’s status remains unclear, Ar‐ ticle 50.1, Additional Protocol I, requires that, “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” The International Criminal Tribunal for the former Yugoslavia (ICTY) noted, “The protection of civilians in time of armed con‐ flict, whether international or internal, is the bedrock of modern humanitarian law … Indeed, it is now a universally recognized principle … that deliberate attack on civilians or civilian objects are absolutely prohibited by international humanitarian law.”5 A problematic example is the worker in an enemy munitions factory. If civilians may never purposely be attacked, how can LOAC allow civilian armament workers to be attacked? In 1930, air power proponent J. M. Spaight argued: There can be no shadow of a doubt that … all persons employed … in the metal works, aircraft and engine factories, petrol refineries, etc. … are subject to attack. The case for attacking workers of these categories is overwhelming and it is idle to seek to resist it … The person who makes the killing machine is more dangerous than the soldier or sailor who uses it … Such workers, though civilians, cannot be regarded as noncombatants while actually at work.6 In the intervening years, a more reasonable and humanitarian view has come to prevail. In World War II the United States, in the Eu‐ ropean theater, pursued precision bombing rather than area bombing and, along with allies, did its best to avoid civilian casualties to the extent possible, given the technology of the day. It cannot be forgotten, however, that during World War II, in 1945 in the Pacific Theater, US bombers also targeted and fire-bombed six‐ ty-seven Japanese cities. The Nazis targeted cities throughout the United Kingdom, including the 1940–1 “Blitz,” during which 43,000 civilians were killed. In February 1945, British and US bombers targeted and destroyed most of Dresden, Germany, killing an estimated 25,000 civilians. In 1937, Japan, in its pre–World War II conflict with China, in “the first air war against population centers,”7 targeted civilians in Nanjing, the capitol city, killing 1,000; Japan targeted Chongqing throughout World War II, reportedly killing 10,000. Al‐ though estimates differ widely, an estimated 109,000 to 206,000 civilians were killed in the atomic bombings of Hiroshima and Nagasaki. The postwar tribunals in Nuremberg and Tokyo did not mention terror bombing or the atom bomb. All of the major states involved in the war had engaged in area bombing that victimized civilians, rather than combatants. https://ereader.cambridge.org/wr/printpage.html Side 2 af 33 Individual Battlefield Status 07.11.2024 14.05 Among other objectives was the more frequent targeting, by both sides, of enemy munitions and materiel plants. Civilians were known to be working in the targeted plants and factories, but civilians were not the targets. The factories were the targets. The incidental injury and death of civilians is addressed through the LOAC principle of proportionality.8 (Chapter 7.4.) In insurgencies, where armed opposition group fighters pose as innocent civilians, the requirement to distinguish civilians from combat‐ ants is easier stated than done. Yet, civilians are critical actors on the insurgency battlefield, and their safety must be an important opera‐ tional consideration. Today, when civilian casualties occur, it is not necessarily a criminal act. What LOAC forbids is making civilians the object of attack. “Collateral damages are a part of almost every military operation and are regarded as acceptable to the extent that precau‐ tions are taken so that the civilian casualties are not disproportionate to the anticipated military advantage.”9 An example is the targeting of munitions factories and command centers. Civilian workers will inevitably be killed but, presuming con‐ siderations of proportionality have been observed in good faith, the civilian deaths are not criminal acts because military objectives, the munitions factory and command center, were the targets. The civilians inside them were not the targets. That is cold comfort to the fami‐ lies of the dead noncombatants, but collateral deaths are the remorseless reality of armed conflict. 6.3 Combatants In Article 155 of his 1863 Code, Francis Lieber wrote, “All enemies in regular war are divided into two general classes – that is to say, into combatants and noncombatants” Modern warfare has somewhat complicated Lieber’s recitation of nineteenth-century customary law of war, but in broad terms it remains true that on any common Article 2 IAC battlefield there are combatants and there are civilians, each of the two having several subcategories. 1977 Additional Protocol I, Article 43.2, defines combatants: “Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains …) are combatants, that is to say, they have the right to participate directly in hostilities.” This is one of the more straightforward LOAC definitions – if, in an IAC, the individual is a member of the armed forces of a Party to the conflict, which is usually a self-evident circumstance, that individual is a lawful combatant. (An explanation of that “medical personnel and chaplains” lan‐ guage will follow, in “Retainees,” 6.4.1.) Lawful combatants have the combatant’s privilege, and the right to participate directly in armed conflict with the enemy. Members of the armed forces involved in the conflict include (in the case of US armed forces) Reserve forces and National Guard units, excepting medical personnel and chaplains, are combatants who may engage in hostilities. They may attack and be attacked; they may kill and be killed. A defining distinction of the lawful combatant’s status is that, upon capture, he or she is entitled to the protections of a POW, one of the most valuable rights of combatants in LOAC. Many varieties of soldiers, sailors, and airmen contribute to the combat effort in ways that have little to do with actually firing a weapon – cooks, administrative personnel, graves registration teams, musicians, for example. They are all combatants because, as members of the armed forces of the state, they are entitled to fight.10 Being a combatant in terms of LOAC is not conduct-based;11 that is, being a lawful combatant is not decided by the individual’s conduct. Instead, it is status based. So, while assigned as an army cook (conduct) you remain a combatant (status). “[T]he combatant is a person who is authorized by international law to fight in accordance with international law applicable in international armed conflict.”12 The consideration of combatant status occupies much of LOAC study because in traditional warfare combatants are the most numerous battlefield players, with an entire Geneva Convention devoted to their treatment upon capture. “Combatants may be attacked at any time until they surrender or are otherwise hors de combat, and not only when actually threatening the enemy.”13 A combatant remains a combatant when he/she is not actually fighting. When a soldier is bivouacked and sleeping she re‐ mains a combatant and so remains a legitimate target. While sleeping, she may be lawfully killed by an opposing lawful combatant. If a combatant is targeted far behind the front lines (not a common event in an IAC) she continues to be a legitimate target for opposing law‐ ful combatants. Taken an unrealistic step further, if a combatant is in her home state, on leave and in uniform, far from the combat zone, and is somehow targeted by an opposing lawful combatant, she remains a legitimate target and may be killed – just as the opposing com‐ batant, if discovered outside the combat zone, may be killed by his enemy. That illustrates the downside of combatancy: A lawful combat‐ https://ereader.cambridge.org/wr/printpage.html Side 3 af 33 Individual Battlefield Status 07.11.2024 14.05 ant has the combatant’s privilege, but also is a continuing lawful target. Common Article 2 combatants are not combatants forever, however. [They] can withdraw from hostilities not only by retiring [demobilizing] and turning into civilians, but also by becoming hors de combat [i.e., out of the fight]. This can happen either by choice through a lying down of arms and surrendering, or by force of circumstance as a result of getting wounded, sick or shipwrecked. A combatant who is hors de combat and falls into the hands of the enemy is in principle entitled to the privileges of a prisoner of war.14 Consider these scenarios: In World War II a pilot in a British “Eagle Squadron” was a US citizen. Was he a lawful combatant? If not, what was his individual status? How about a Romanian citizen in a World War I German infantry unit? A lawful combatant or not? What if a US Marine retired from active military service and returned to his native state of Redland, where he joined the Redland army, which then engaged in an IAC with the United States? If captured by US forces, what is the retired marine’s status? In all three cases, the individuals are uniformed members of the armed forces of a party to the conflict. Therefore, all three are lawful combatants. Citizenship is not the point of lawful combatancy; membership in an army of a party to the conflict is the issue. In December 2003, Saddam Hussein, the president of Iraq, was captured by US forces at the close of the US-Iraq armed conflict. What was his individual status? The common Article 2 phase of the conflict had ended the previous May, and the United States was occupying Iraq. Common Article 2 makes clear, however, that all of the Geneva Conventions continue to apply during “cases of partial or total occu‐ pation.” Saddam commanded the Iraqi army, often wore a military uniform, and frequently went about armed. He was a combatant. Cap‐ tured in civilian attire, was he a lawful combatant? (Saddam was presumed to be a POW, and that is the status eventually accorded him.15) In World War II, if British Field Marshal Bernard Montgomery had been captured by German forces, would he have been a lawful com‐ batant and a POW? Answer: like Saddam, a lawful combatant. As members of the armed forces of a party to the conflict, Saddam and Montgomery, even when not actually engaged in combat, remained lawful combatants. (Had Montgomery or Saddam been captured while fighting, but not in uniform or with some other identifying sign, the question is more difficult.) In 2007, a former US police officer was hired by a US armed security contractor to provide security for American diplomatic officials in Iraq. Being a man of action, the ex-policeman longed to participate in an operational US Army convoy in the Baghdad area, where he was posted. After a period of wheedling and cajoling his new-found army buddies, the former policeman was allowed to surreptitiously par‐ ticipate in a resupply run as the top-side machine-gunner on a Humvee. If captured while on the resupply mission by an enemy who ob‐ served the Geneva Conventions, what was his individual status?16 SIDEBAR During World War II, in April 1943, Admiral Isoroku Yamamoto, Commander-in-Chief of the Japanese Combined Fleet, was on an inspection tour hundreds of miles behind the front lines. Having broken the Japanese navy’s message code, US forces knew his flight itinerary and sent sixteen Army Air Force P-38 Lightning fighter aircraft to intercept him. Near Bougainville, in the north‐ ern Solomons, the US fighter pilots shot down their target, a Betty bomber, killing all on board, including Admiral Yamamoto. Ya‐ mamoto’s status was that of a combatant in a common Article 2 international armed conflict and he was killed by opposing combat‐ ants. “There is nothing treacherous in singling out an individual enemy combatant (usually, a senior officer) as a target for a lethal at‐ tack conducted by combatants distinguishing themselves as such … even in an air strike.”17 The fact that Yamamoto was targeted far away from the front lines is immaterial. Combatants may be targeted wherever found, armed or unarmed, on a front line or a hun‐ dred miles behind the lines, whether in the zone of hostilities, in occupied territory, or anywhere else. 6.4 Prisoners of War In a common Article 2 IAC, captured combatants are entitled to an additional status, prisoner of war (POW), with its third Geneva Con‐ vention rights, duties and protections. The 1863 Lieber Code points out, https://ereader.cambridge.org/wr/printpage.html Side 4 af 33 Individual Battlefield Status 07.11.2024 14.05 A prisoner of war is subject to no punishment … nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment … death, or any other barbarity …. Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity.18 While POWs may be tried for unlawful pre-capture acts they may have committed, and for unlawful acts they commit while in captivity, POWs are confined not because they are criminals but to keep them from returning to further fighting. Captured enemy fighters who are not entitled to POW status, such as unlawful combatants (unprivileged belligerents), do not enjoy the same consideration. Nothing requires that captured terrorists and other unlawful combatants be denied POW status. “Indeed, US practice has been to accord POW status generously to irregulars, to support such status for irregular forces at times, and to raise objections whenever an adversary has sought to deny US personnel POW status based on a general accusation that the US forces were not in compliance with some aspect of the law of war.”19 More often, captives are treated as if they were POWs while not being accorded formal POW status – a subtle but sig‐ nificant difference. During the Spanish Civil War (1936–9), there was a special agreement between the two sides, the Madrid Government of Spain and the Burgos Junta, that certain prisoners would have a status equivalent to POWs. During the US-Vietnam conflict, “[t]he MACV [US Military Advisory Command-Vietnam] policy was that all combatants captured … were to be accorded prisoner of war sta‐ tus, irrespective of the type of unit to which they belonged.”20 In a later era, there was no such accommodation for captured Taliban or al Qaeda fighters. Geneva Convention III, Article 22, requires that POWs “may be interned only in premises on land.” The 1960 Commentary to Conven‐ tion III repeats that, “The place of internment of POWs … must be located on land.”21 The US Department of Defense Law of War Manu‐ al notes Article 22’s requirement while contradicting it in the same paragraph, saying, “there is no prohibition against the humane deten‐ tion of persons on ships.”22 Which prevails? In US practice, Article six of the Constitution says ratified treaties are the law of the land. The DoD Law of War Manual loses. What about common Article 3 non-international armed conflicts? The traditional view is that, just as there are no POWs in NIACs, there are no “combatants,” lawful or otherwise, in common Article 3 conflicts. There may be combat in the literal sense, but in terms of LOAC, there are fighters, rebels, insurgents, or guerrillas who unlawfully engage in armed conflict, and there are government forces, including armed forces allied to the government forces. In NIACs there are no combatants as that term is used in customary law of war, however. Upon capture, rebel or insurgent fighters are simply prisoners of the detaining government, considered criminals to be prosecuted for their unlawful acts. While these legal and semantic distinctions are usually ignored in casual conversation, they do constitute legal distinctions. The legally correct assertion that there are no combatants in NIACs makes no sense to members of the armed forces of the Parties to the conflict who are fighting in NIACs. Clearly, in this case, the terminology of IACs has matured and been adopted by common Article 3 NIACs. Such adaptations, terminology specific to one situation being appropriated by another is not unreasonable. A version of “law by analogy,” it is neither new to, nor disallowed by, LOAC.23 But it can be confusing to one who is new to LOAC. Since POW status derives from the lawfulness of the fighter’s status (Geneva Convention III, Article 4.A(2)), there is no POW status for unlawful fighters (aka, unprivileged belligerents) in non-international armed conflicts. How should one refer to prisoners held in a NIAC? As detainees or, simply, prisoners. If there is doubt as to a captured individual’s status, it shall be determined by a “competent tribunal,” as provided by Geneva Convention III, Article 5. (See Chapter 6.5.) 6.4.1 Retainees Retainees occupy a unique place in LOAC. More than a century ago, Lieber wrote in his Code, https://ereader.cambridge.org/wr/printpage.html Side 5 af 33 Individual Battlefield Status 07.11.2024 14.05 The enemy’s chaplains, officers of the medical staff, apothecaries, hospital nurses and servants, if they fall into the hands of the American Army, are not prisoners of war, unless the commander has reasons to retain them. In this latter case, or if, at their own desire, they are allowed to remain with their captured companions, they are treated as prisoners of war, and may be exchanged if the commander sees fit. Today, retainees are described as military medical personnel and chaplains who are exclusively engaged in medical or religious duties.24 Geneva Convention I, Article 24, describes who and what “medical personnel” and “chaplains” are. Retainees include military dentists, surgeons, and other medical doctors, but not medical orderlies or chaplains’ assistants.25 The distinc‐ tion is based on the fact that medical orderlies and chaplains’ assistants are assigned those duties from the ranks of combatant units, but they are not permanently assigned those duties. Orderlies and chaplains’ assistants, being combatants, may lawfully directly participate in hostilities.26 Upon capture, retainees are not POWs, although they receive exactly the same treatment as POWs. They are “retained,” as described in Article 28 of Geneva Convention I, only for as long as their services are needed. Article 28 reads that they “shall be retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require.” Their retention, however, “must not become a sub‐ stitute for the obligation of a Detaining Power to provide for the medical and spiritual welfare of prisoners of war.”27 In early twentieth- century conflicts, when their services were no longer required, retained personnel were, in fact, often released and returned to their own lines. The framers of the 1949 Conventions agreed that retained personnel are not POWs but they should receive all of the benefits of Convention III on POWs. The dichotomous status of retainees remains a bit murky but workable. Medical personnel and chaplains, although members of the armed forces, are not combatants. They are the only members of the armed forces of a state who are not combatants. “The term noncombatant as used in the present connection to describe certain elements [med‐ ical personnel and chaplains] within the armed forces is, of course, to be distinguished from the term noncombatant as applied to the general population of a belligerent, that is, those who do not belong to its armed forces.”28 Retainees may not be compelled to do work other than their medical or pastoral work. When there no longer is a need for their services, they may be returned to their own lines – repatriated.29 Although there were a number of prisoner exchanges throughout World War II,30 repatriation of retained personnel is a requirement seldom observed since then because as long as there are POWs the retainee’s unique skills will likely be needed. The return of retained personnel is detailed in Geneva Convention I, Articles 30 and 31. In combat, medics and corpsmen traditionally wore brassards – armbands – bearing “the distinctive sign” – a red cross on a white back‐ ground, to mark the wearers as noncombatants who were not lawful targets.31 (In US practice, the Army refers to field medical personnel as “medics,” while the Marine Corps and Navy refer to them as “corpsmen.”) Since World War II, the grim reality of NIAC combat has caused medics and corpsmen to frequently discard their distinctive red cross insignia, which too often becomes an enemy aiming point, rather than a protective emblem. Additionally, in NIACs, it is US policy that medics and corpsmen may arm themselves with light indi‐ vidual weapons only,32 which is in accord with LOAC, as long as the weapons are only used for self-defense or the defense of the wounded in their charge.33 “Light individual weapons” are … described in the ICRC’s Commentary on the Additional Protocols of 1977 in relation to medical personnel and permitted self-defense measures: “The expression ‘light individual weapons,’ in Additional Protocol I Articles 13(2) and 65(3), denotes ‘weapons which are generally carried and used by a single individual,’ including sub-machine guns.”34 During World War II, in the 1945 battle for Okinawa, Navy Corpsman Robert E. Bush, in the words of his Medal of Honor citation, was advancing to administer blood plasma to a marine officer lying wounded on the skyline when the Japanese launched a savage counterattack … [H]e resolutely maintained the flow of life-giving plasma. With the bottle held high in 1 [sic] hand, Bush drew his pistol with the other and fired into the enemy’s ranks until his ammunition was expended. Quickly seizing a discarded carbine, he trained his fire on the Japanese https://ereader.cambridge.org/wr/printpage.html Side 6 af 33 Individual Battlefield Status 07.11.2024 14.05 charging pointblank over the hill, accounting for 6 of the enemy despite his own serious wounds and the loss of one eye suffered during the desperate battle in defense of the helpless man. Corpsman Bush employed light individual weapons in self-defense and in defense of the wounded marine in his charge, textbook compli‐ ance with the Convention then in effect, the 1929 Geneva Convention for the Sick and Wounded, Article 8.1, which reads essentially the same as 1949 Geneva Convention I, Article 22(1). Chaplains, by reason of their noncombatancy35 and, in US practice, national policy, “will not bear arms in combat.”36 On rare occasions, American chaplains have disregarded the prohibition. In April 2003, a US Army chaplain was with an infantry unit pushing into Bagh‐ dad, involving intense combat: As he surveyed the melee around him, he was afraid the US troops would be overrun. Army chaplains were under instructions not to bear arms. In the most extreme circumstances, where their lives were at stake, chaplains could declare an exception. It was called the “moment of decision” and was a judgment each chaplain had to make for himself, but one the Army Chaplain Corps discouraged. [The chaplain] decided it was time to fight. He picked up a weapon and started firing at the enemy … “I picked up a weapon and I was firing, and I have no problem with that in my conscience.”37 That chaplain was hardly the first man of the cloth to engage in combat. During the US Civil War, Union Chaplain Milton L. Haney also took up arms. His brief Medal of Honor citation reads: “Voluntarily carried a musket in the ranks of his regiment and rendered heroic service in retaking the Federal works which had been captured by the enemy.” Today, military chaplains and medical personnel who take a direct part in hostilities become combatants for so long as they do so, forfeit their noncombatant immunity, and are lawful targets.38 If captured by an opposing force that observes LOAC, they still would be retained individuals, but could be subject to trial for their unlawful pre-capture combatant acts,39 just as combatant POWs would be subject to tri‐ al for their unlawful pre-capture acts.40 Since World War II, when large numbers of medical personnel were held as retained personnel, such practice has become rare. Although provisions governing the retention of military medical and clerical personnel remain applicable, “the number of international armed con‐ flicts in which they have been called upon to play a role has decreased over time [and] … the retention regime provided for in the Geneva Conventions … has not been applied by analogy in non-international armed conflicts.”41 6.4.2 Others Whose Status upon Capture is POW Recall that prisoner of war status arises only in common Article 2 IACs. In such conflicts the 1949 Geneva Conventions apply in toto, along with 1977 Additional Protocol I, and customary international law. We know that, in IACs, a lawful combatant is a member of the armed forces of a Party to the conflict. Combatants usually wear a uniform or other distinguishing sign. Although combatants make up the greater number of POWs, by far, Geneva Convention III on prisoners of war specifies six additional groups that are entitled to POW protections.42 6.4.2.1 Members of Other Militias and Members of Other Volunteer Corps Here is the age-old issue of militia, partisans, guerrillas, and other armed opposition groups, and their status if captured. Geneva Conven‐ tion III, Article 4A., encompasses a state’s auxiliary and reserve armed forces, as well as partisans. As previously noted (Chapter 4.2.1.3.2), for armed opposition groups to gain POW status upon capture, they must comply with Article 4.A.(2) of the POW Convention, which lists four “conditions” that must be met. These four conditions originated with 1899 Hague Con‐ vention II, Respecting the Laws and Customs of War on Land: https://ereader.cambridge.org/wr/printpage.html Side 7 af 33 Individual Battlefield Status 07.11.2024 14.05 Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if the territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.43 Conditions (b) and (c) are modified by 1977 Additional Protocol I, Article 44.3, which requires that lawful combatants distinguish them‐ selves (“a fixed distinctive sign”) only while in an attack or preparatory to an attack and, if they cannot do that because of the nature of the situation, they still must carry their arms openly during that period. (See Chapter 4.2.1.3) What does this 1977 Additional Protocol I modification mean for members of “other militias” and “other volunteer corps” or other armed opposition groups? The ICRC points out that, “if resistance movements are to benefit by the Convention, they must respect the four special conditions.”44 If they fail to do so, they are unprivileged belligerents, often referred to as “unlawful combatants.” (Recall that the United States has signed both Additional Proto‐ cols, but has ratified neither. Nor does the United States consider the modifications asserted in Additional Protocol I, Article 44.3 and 44.4 to be customary law.) Notwithstanding Additional Protocol I’s modifications, the first of the four conditions is clear. In an international armed conflict, the par‐ tisan, guerrilla, or rebel group, however designated, must have a leader, civilian or military, who is responsible for their conduct. This is not necessarily a requirement for a hierarchical military-style “chain of command,”45 although there often is such a chain of authority in resistance movements. The requirement is intended to exclude groups of individuals acting on their own who, in effect, initiate private wars. Such unaffiliated fighters have always been forbidden by LOAC and outlawed by states since the 1648 Treaty of Westphalia. The second condition: combatants must be recognizable through a distinctive sign. The distinctive sign of a state’s armed forces usually is a uniform but a distinctive sign may be any emblem recognizable at a reasonable distance, in daylight, with unenhanced vision. A distinc‐ tive sash, coat, shirt, badge, or emblem, even a distinctive armband will do, but it must be the same distinctive sign for everyone in the partisan group and it must be used only by them. A white shirt, for example, may not be “the distinctive sign” because a white shirt is not distinctive. A distinctive cap or hat, like the beret of the World War II French Maquis resistance fighters, is not adequate because it may easily be removed or put on, too easily defeating the requirement for distinction.46 A uniform is distinctive but is not required for irregu‐ lar forces. Any distinctive sign is permitted. The phraseology needs to be reasonably construed. Combatants seeking to stay alive do not attempt to draw attention to themselves, and even soldiers in uniform are allowed to use camouflage. This is a lawful ruse of war … Needless to say, combatants are not required to carry an illuminated distinctive emblem that is recognizable at a distance in the dark … The point is not whether combatants can be seen, but whether (if observed) they are likely to be mixed up with civilians.47 The point is not whether fighters can be seen, but whether they purposely create a false impression that they are civilians – unlawful tar‐ gets. In 1999, during armed conflict in Kosovo, press and television depicted members of a paramilitary group, the Kosovo Liberation Army (KLA), wearing camouflage uniforms with the KLA patch at their shoulder. Although they were not members of an army of a party to the conflict, the KLA did take pains to distinguish themselves from noncombatants. The US objection to Additional Protocol I, Article 44.3 is it weakens the customary condition by indicating there are circumstances when “combatants” cannot distinguish themselves but, if captured, shall nevertheless retain combatant status – an inducement to armed oppo‐ sition groups to not distinguish themselves. Also, 44.3 weakens the customary third condition, to carry arms openly, by limiting the re‐ https://ereader.cambridge.org/wr/printpage.html Side 8 af 33 Individual Battlefield Status 07.11.2024 14.05 quirement to do so only while in a military deployment preceding an attack. The US objection to Article 44.4 is that it essentially grants full POW status to those who “fail to meet the requirements” just mentioned. The third condition, carrying arms openly, requires a commonsense interpretation. “Carrying arms openly” does not necessarily mean one’s weapon must be carried visibly. How can a weapon be carried openly, yet not visibly? A good question. What is required is that the fighter carry his weapon openly “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.”48 Must a soldier carry her pistol in her hand whenever she is “outside the wire”? Does this requirement imply that a combatant is barred from carrying a sidearm in a holster or hand grenades in a pouch? The question is plainly rhetorical. What counts is not the ambiguous language but the kernel of the condition. A lawful combatant must abstain from creating the false impression that he is a civilian. He must carry his arms openly in a reasonable way, depending on the nature of the weapon and the prevailing circumstances.49 The final condition, that the laws and customs of war be complied with, is essential and is inherent in the three other requirements. Al‐ though “the laws and customs of war” is a somewhat vague locution, it reasonably informs the partisan or insurgent of LOAC’s require‐ ments. If a combatant is unwilling to himself respect LOAC, he cannot rely on LOAC when he seeks to enjoy its benefits. 6.4.2.2 Regular Armed Forces Professing Allegiance to an Unrecognized Authority Article 4 A goes on to specify five other groups, members of which are entitled to POW status upon capture. The first group consists of “Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining power [are prisoners of war upon capture].”50 It was added to the Convention to remedy a specific circumstance of World War II. After Germany occupied France, “Free French” forces under General Charles de Gaulle continued armed resistance in France against the Nazis. The Germans did not recognize de Gaulle’s Free French government in exile. An Article of the 1942 French-German armistice stipulated that, because the Free French were, the Germans contended, fighting unlawfully, they would not be protected under the law of war and would not be accorded POW status if captured. General de Gaulle’s Free French forces were considered by the Allies as France’s lawful regular armed force – an armed force that professed allegiance to a French government not recognized by Germany, their Detain‐ ing Power, if captured. A similar situation arose in 1943, when Germany refused to recognize Italy’s government in exile, or its forces fighting in Italy. To ensure that such attempts to put combatants beyond the protections of the Conventions would not arise in the future, this provision was added.51 6.4.2.3 Persons Who Accompany the Armed Forces without Being Members Thereof In 2007, for the first time, the US Marine Corps based a squadron of MV-22 Osprey, a then-new tiltrotor aircraft, on foreign shores. The part-helicopter, part-turboprop MV-22 was twenty-four years and twenty-two billion dollars in development. Its two wingtip-mounted engines, which rotate in flight from helicopter mode to aircraft mode, are highly complex. Three civilian technical representatives from the plane’s manufacturer, Boeing-Bell, and a civilian from the engine maker, Rolls-Royce, deployed to Iraq with the squadron.52 If these four civilians were to be captured by an enemy force that complied with LOAC, what would their status be? The answer is in Article 4.A.(4): “Persons who accompany the armed forces without actually being members thereof, such as … war cor‐ respondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces” shall be POWs, if captured. https://ereader.cambridge.org/wr/printpage.html Side 9 af 33 Individual Battlefield Status 07.11.2024 14.05 In 1863, Lieber wrote, “Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of jour‐ nals, or contractors, if captured, may be made prisoners of war, and be detained as such.”53 Although the purposes for which individuals may accompany the armed forces are limited, Lieber’s recitation remains much the same today. The Osprey “tech reps” accompany the armed forces, but they are not members of the armed forces. Their status upon capture is POW. If a CNN reporter, cameraman, and sound technician are captured? POWs. If a USO show cast member, or a civilian mess-hall worker were captured, both would be POWs. Are captured employees of an American-based armed private security contractor also POWs? In 2007, in Iraq, such a company, Blackwa‐ ter Worldwide, was prominent in news stories involving the deaths of noncombatants due to Blackwater employees’ acts. Logic and Blackwater’s military-like armament suggested that they would be POWs if captured, but they would not be. Their contracts were with the US Department of State, not the Department of Defense.54 In the combat zone, Blackwater accompanied not the armed forces, but the State Department. If captured, their status would be “protected persons,” with far fewer protections than a POW. 6.4.2.4 Merchant Marine and Civilian Aircraft Crews Upon capture in an IAC, the crews of merchant marine vessels and civilian aircraft of a Party to the conflict are also entitled to POW sta‐ tus. The merchant seamen and women who crew government-contracted civilian vessels transporting supplies to the combat zone are of‐ ten armed. Civilian aircraft manned by unarmed civilians often transport troops to and from the combat zone. In the event of capture, they have POW status.55 The capture of civilian crew members is unusual, but it happens. In 1965, during the US-Vietnam conflict, Ernest C. Brace, a civilian pilot flying US Agency for International Development supply missions, was captured in Laos by North Vietnamese Army troops. He was held prisoner for seven years and ten months, longer than any other civilian in that conflict. A former US Marine, Brace received the civilian Medal for Distinguished Service for his heroic conduct as a POW.56 Of the 771 Americans and allies who were captured during the Viet‐ nam conflict, fifty-one were civilians – tech reps, construction workers, teachers, interpreters, US government employees, nurses and mis‐ sionaries, as well as civilian air crew like Brace.57 “[T]he Hanoi government stated that it would treat captured American fliers humanely, but it would not accord them prisoner of war status as they were ‘pirates’ engaged in unprovoked attacks on North Vietnam.”58 The treat‐ ment of North Vietnamese captives was far short of “humane.” 6.4.2.5 Levée en masse On December 24, 1941, two weeks after Pearl Harbor, Wake Island, held by the United States, fell to invading Japanese forces. More than 1,100 American civilian construction workers who were building US fortifications, were among the island’s population. “More than sixty civilians are known to have taken part in the ground fighting, and their valor – if not their combat skills – equaled that of the servicemen.”59 One hundred and twenty-four Americans died before Wake Island was forced to surrender. Seventy-five of the dead were civilians who manned shore batteries and heavy machine guns, held defensive positions and, when Japanese infantry landed, fought in counterattacks.60 What was the individual status of the 1,118 civilians who were captured on Wake Island by Japanese forces? Traditionally, wrote Lieber, “the people of that portion of an invaded country which is not yet occupied by the enemy … at the approach of a hostile army, [may] rise … en masse to resist the invader … and, if captured, are prisoners of war.”61 The Wake Island civilians are what Lieber described – inhabitants of non-occupied US territory who, on the approach of the enemy, spontaneously took up arms to re‐ sist the invading Japanese force without having had time to form themselves into regular armed units, carrying their arms openly and re‐ specting the laws and customs of war.62 They were the definition of a levée en masse, entitled to POW status upon capture. They were not unlawful combatants.63 https://ereader.cambridge.org/wr/printpage.html Side 10 af 33 Individual Battlefield Status 07.11.2024 14.05 In the French Revolutionary Wars (1792–1800), at the 1793 Battle of Wattignies, French levées en masse beat back invading Austrian troops. In the US Civil War, in 1864, upon the approach of Union forces, 257 cadets of Virginia Military Institute took up arms and fought at the Battle of New Market. Ten were killed and forty-five wounded. Seven months later, at Tulifinny, South Carolina, a battalion of cadets from The Citadel was called out to stop Union forces marching toward Charleston.64 The cadet units were levées en masse. During World War II, in 1941, the German army attacked Tallinn, the capital of Estonia. Tallinn’s hastily erected defenses, manned by naval personnel, were no match for the Nazi Wehrmacht. “By nightfall the Nazis pushed into the lovely beach community of Pirita, and … the last reserves of the command had been assembled – the cadets of the Frunze Naval Academy.”65 The cadets, some still in their teens, were formed into a levée en masse. “That night, the Germans overran the thin line of sailors … Almost all perished in the hand-to- hand battle.”66 “The law of war has had to evolve an uneasy … compromise between the legitimate defence of regular belligerent forces and the demands of patriotism … The protected position afforded the members of the levée en masse is a monument to these sentiments.”67 The In‐ ternational Criminal Tribunal for the Former Yugoslavia (ICTY) has defined a levée en masse as “inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously took up arms to resist the invading forces, without having had time to form themselves into regular armed units, and at all times they carried arms openly and respected the laws and customs of war.”68 “The conditions [for a levée en masse] are those of emergency and a form of last-ditch defence of a country when time permits of no other means.”69 Partisans, rebels, guerrillas, and insurgents are not a levée en masse, for they are not a last-ditch defense of a country. Because of the character of a levée en masse, its members are allowed to dispense with the otherwise required commander responsible for subordi‐ nates and the wearing of a fixed distinctive sign – the only time that the four Article 4(A) customary requirements for POW status are eased. But, “In the absence of any distinctive sign, the requirement of carrying arms ‘openly’ is of special significance … [T]his require‐ ment is in the interest of combatants themselves who must be recognizable in order to qualify for treatment as prisoners of war. They must therefore carry arms visibly.”70 Finally, a levée en masse can lawfully exist only during the actual period of invasion – a common Article 2 IAC. Resistance beyond the pe‐ riod of the actual invasion must be conducted by regular forces, or the levée members must be incorporated into regular forces. Armed resistance by civilian combatants that continues into an occupation renders the fighters unlawful combatants/unprivileged belligerents. Although recognized in Geneva Convention III, the levée en masse is uncommon in modern times. Since World War II, “[t]his situation has hardly ever arisen in actual practice”71 and is “extremely rare and limited.”72 Still, in August 2008, Russian troops invaded the South Ossetia region of neighboring Georgia and, overcoming resistance of the Georgian army, pushed on into Georgia itself.73 As swaths of the country fell before Russian troops, it was not only the army that rose in its defense but also regular citizens … [Two young Georgian men] hoped to join the fight … despite the fact that neither had served in the military … part of a group of a dozen civilians, some in camouflage and some wearing bullet- proof vests, who said they were there to defend the city from Russian attack. “Many of them now think it is the last chance to defend their homeland,” Ms. Lagidze said.74 Six years later, in 2014, when Ukraine’s understrength army was being pummeled by Russian-backed separatists it was “joined in the field by volunteer paramilitary battalions.”75 Levées en masse are not as improbable on today’s battlefields as widely believed. 6.4.2.6 Demobilized Military Personnel and Military Internees in Neutral Countries An often overlooked provision of Geneva Convention III, Article 4, is subparagraph B, again included as a direct result of World War II experience. In occupied territories, the Nazis often arrested and shot retired or demobilized military personnel, frequently ex-officers who refused to comply with internment orders, or attempted to rejoin their former units. To prevent such acts in future conflicts, this provi‐ sion of Article 4 requires that such detained individuals receive POW protection.76 https://ereader.cambridge.org/wr/printpage.html Side 11 af 33 Individual Battlefield Status 07.11.2024 14.05 The internment of military personnel in neutral countries was also a World War II issue, particularly for the United States. For British- based American bomber crews, Switzerland was not far from many German targets. US bombers, too badly damaged over Germany to make it to their distant English bases, often opted to land in Switzerland, rather than risk crash-landing in Axis territory. As required by 1899 Hague Regulation II, Switzerland, a neutral state, interned the American air crews as “troops belonging to the belligerent armies.”77 One thousand, seven-hundred, forty American officers and enlisted air crew, and 13,500 other foreign military personnel, German, British, and Russian,78 were interned in Switzerland during the war. The crews were held in approximately a hundred camps across the country, all with armed Swiss guards. The interned former combatants were guarded at night and forbidden to attempt escape, but during the day were allowed outside the camps, often passing time in the small towns near their internment facilities. Article 4B(2) of Geneva Convention III clarifies the status and treatment of belligerents who are detained by a neutral state. 6.5 Spies and Mercenaries A spy is an individual, military or civilian, who clandestinely, or under false pretenses, obtains or attempts to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.79 To “qualify” as a spy, the individual must meet each one of those three elements. Acting clandestinely means to conceal or misrepresent one’s identity – a disguise, for example, such as wearing civilian clothes over a uniform. A combatant wearing his or her uniform is not acting clandestinely. The “zone of opera‐ tions” includes any area supporting the war effort, a broadly defined area. Even if the individual fails to secure the desired information he or she may be a spy. Finally, the individual must intend to communicate the information to a hostile party, whether it be the spy’s armed forces or allied state’s armed forces. A combatant who is in uniform, who is gathering information that she intends to communicate to her armed force, a soldier on a recon‐ naissance patrol, for example, is not a spy because she is in uniform.80 If captured she is simply a POW. Spying is not prohibited by LOAC, and persons captured as spies “shall not have the right to the status of prisoner of war.”81 Spies, few as they are in armed conflicts, are usually turned over to civilian authorities and, presuming the courts are functioning, tried for espionage. Mercenaries are a different matter. The DoD Law of War Manual describes them at length without ever using the word “mercenary.”82 Additional Protocol I, Article 47 is less coy, listing six requirements for mercenary status. Again, a suspected mercenary must satisfy all six criteria to qualify. The crux of the definition is that the pursuit of monetary gain is essentially the determining factor in defining a mercenary. “Since ,” the ICRC notes, “there has scarcely been any conflict involving military operations in which the presence of mercenaries has not played a part in one way or another.”83 Like spies, mercenaries are ineligible for POW status. To meet Article 47’s mercenary definition, one must have been specially recruited to fight in an armed conflict; must actually take a direct part in those hostilities (which excludes advisors); and do so for private gain substantially in excess of the pay of a combatant of similar rank and function. One cannot be a national or a resident of any state that is a Party to the conflict; cannot be a member of the armed forces of a Party to the conflict; and cannot have been sent by a state that is not a Party to the conflict as a member of that sending state’s armed forces. Difficult as it is to meet the definition of mercenary, they remain a battlefield constant. In 2018, the founder of Blackwater urged a “more unconventional approach” to the ongoing Afghan conflict: his private security firm.84 Defense Secretary Jim Mattis, demurred. In Ve‐ nezuela, in 2020, a plot to overthrow the president was undertaken by sixty men, led by two former US Army Green Berets. “The opera‐ tion failed miserably”85 and the two Green Berets were sentenced to twenty years in a Venezuelan prison. In mid-2020, twenty mercenar‐ ies slipped into Libya, intent on assaulting Tripoli (reportedly for eighty million dollars). The mission collapsed when poor quality heli‐ copters were refused by the mercenaries.86 Libyan oil fields were said to be the 2020 objective of “the Wagner Group,” a “Kremlin- linked” mercenary band of unusually good training and skill.87 In late 2020 the Wagner Group again turned up in Libya, this time sup‐ ported by more than a dozen MIG-29s and Su-24s with their Russian markings painted over, as well as Russian military cargo jets bearing armored vehicles and supplies, not your usual mercenary war surplus gear. US Army, Africa Command’s Intelligence Director said, “the https://ereader.cambridge.org/wr/printpage.html Side 12 af 33 Individual Battlefield Status 07.11.2024 14.05 Russian planes, flown by crews from the Wagner Group, a Kremlin-backed private military company whose mercenaries … had carried out several ground strikes and other missions.”88 SIDEBAR On the evening of February 7, 2020, in Syria’s oil-rich Deir al-Zour Province, about thirty US Army Delta Force soldiers and Rangers, along with several Kurdish fighters, watched as more than 500 enemy troops and mercenaries, and twenty-seven ar‐ mored vehicles massed several hundred yards from their small outpost. They were later identified as a mix of Syrian soldiers and mili‐ tias, the majority of the group Russian mercenaries “most likely” part of the Wagner Group, a company often used by the Russian Federation and named for the nickname of the retired Russian officer who trained them. The Wagner Group was reportedly in Syria to seize oil and gas fields and protect them on behalf of Syria’s Assad government. Meanwhile, drone-mounted cameras relayed the deteriorating battle space to the Pentagon, as well as to local US ground and air command posts. In Senate testimony seven months later, Defense Secretary Jim Mattis described his conversation with the Russian high command in Syria who assured him the massing troops were not Russian. Mattis said he accordingly directed the Chairman of the Joint Chiefs that any attacking force should be “an‐ nihilated.” “And it was.” Mattis added. Around 10 p.m., despite calls to Russian commanders in Syria, the mercenaries and Syrians attacked under cover of a heavy artillery and mortar barrage, and tank fire. Given lengthy notice of what was coming, US air cover arrived in waves, everything from B-52s and AC-130 gunships to Apache helicopters, pummeling the attackers for nearly three hours. The small US force, now reinforced by a QRF of ten Marines and Green Berets, also took the attackers under fire until they were, as General Mattis had directed, annihilated and survivors in retreat. At about 0200 US troops held their fire while the mercenaries and Syrian fighters collected their dead. No US combatant was killed, one allied Syrian fighter was wounded. Documents obtained by the New York Times estimated that 200 to 300 attackers were killed.89 6.6 Article 5 Competent Tribunals What is a “competent tribunal,” what is its purpose, how is one constituted, and when is one required? The basic LOAC rule is that members of the armed forces of a Party to the conflict will have POW status upon capture. In an IAC, when there is doubt as to whether a newly detained individual is a member of the opposing armed forces entitled to POW status, an Article 5 hearing, a “competent tribunal” makes that determination. In a NIAC, an Article 5 tribunal determines whether the detainee is an inno‐ cent civilian, an unlawful, or a lawful combatant. Article 5 of Geneva Convention III raises a presumption that individuals who might be POWs shall have the POW Convention applied to them. “Presumption” and “shall” are powerful words in any legal context. A captured combatant is entitled to POW status, but there are certain noncombatants who are also entitled to this status. Article 5 is the vehicle by which those entitlements are determined. An identi‐ cal presumption and competent tribunal requirement is in Article 45.1 of Additional Protocol I. There is no requirement in Additional Protocol II for competent tribunals in NIACs, although it may be argued that the 1949 Geneva Conventions, by virtue of their universal ratification, are customary law applicable in armed conflicts of any description. A detainee may claim POW status entitlement in a NIAC, as well as an IAC, so Article 5 tribunals may be held in NIACs, even if not mentioned in Addi‐ tional Protocol II, if only to demonstrate that, although not mandatory, the Detaining Power is scrupulous in observing its LOAC obliga‐ tions and provides status tribunals for captured enemy fighters even though a tribunal finding of POW status would be rare. In many in‐ stances that was not the course taken by the US in the Iraq or Afghan armed conflicts, although there were numerous tribunals. Article 5 instructs, “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention un‐ til such time as their status has been determined by a competent tribunal.”90 https://ereader.cambridge.org/wr/printpage.html Side 13 af 33 Individual Battlefield Status 07.11.2024 14.05 The words “competent tribunal” are used so that tribunals other than military tribunals are not precluded. Article 5 is directed to irregu‐ lar fighters who might have complied with the four conditions for POW status, as well as to regular troops and civilians traveling with the armed forces in the field. Article 5 addresses the person who says she was accompanying the armed forces but was not a soldier; to the en‐ emy deserter who has lost his identifying Geneva Convention card; and to the fighter who swears he was a member of a levée en masse. If there is a chance their story is true – “any doubt” – they shall be presumed to be POWs until it is determined that their status is some‐ thing else. Students of LOAC often forget this basic requirement of Additional Protocol I, Article 45.1: in an IAC, NIAC, or any form of armed conflict, if an individual is captured, detained or held, and that individual’s status is unclear, debatable, or argued, they are presumed to be a POW. Note that a “competent tribunal” need be employed only when there is doubt regarding a prisoner’s status. When a uniformed enemy sol‐ dier is captured in the course of a common Article 2 IAC, there seldom is doubt that he is a POW, and no tribunal is called for. When an Afghan insurgent in civilian clothing is seized, dazed and bleeding, after a final assault on the mountain house where he and his fellow insurgents were firing on US forces, there is no doubt that he is an unlawful combatant and no tribunal is necessary. Not all cases are so clear. In an international armed conflict, imagine that a Dutch patrol has detained an individual dressed in civilian clothes, carrying an AK-47 assault rifle and, in his backpack, three magazines of ammunition for the AK, a fragmentation hand grenade, and ten feet of detonation cord.91 The individual was seized at a site from which the Dutch patrol had received rifle fire an hour before. Many local civilian males lawfully carry AK-47s, however. The detainee says he found the grenade and says he uses the “det cord” in his father’s construction business. Shall the presumption of POW status continue in the face of possession of such suspicious armament? A competent tribunal should be held. The tribunal should hear his story, assess the circumstances of his apprehension, and judge his veraci‐ ty. Until the tribunal’s determination is made, the presumption of POW status continues. When several individuals have been captured as a group, there may be “doubt” as to one of the detainees’ status. The circumstances or place of his capture may raise doubt, or the detainee himself may raise the required doubt simply by claiming POW status.92 Once a cap‐ tive persuades his captors that he is a member of the enemy armed forces, the burden of proof that he is anything else is on the capturing force. As tedious as it may seem, when a detainee asserts that he is a POW, or that he is an innocent civilian, a tribunal is called for. In US practice, these tribunals are commonly referred to as “Article 5 hearings.” They first were instituted by the United States in the Vietnam War, in 1966,93 although not by that name. Today, Article 5 hearings are well-established. In the first Gulf War (1991), the United States held 1,196 Article 5 hearings. “As a result, 310 persons were granted EPW [enemy prisoner of war] status; the others were deter‐ mined to be displaced civilians and were treated as refugees.”94 In the war on terrorism, hundreds of Article 5 hearings were conducted in Afghanistan and Iraq. “As the Third Geneva Convention is silent on the procedures to be followed, procedural issues fall within the purview of the Detaining power … [I]t is fairly clear that [the tribunals] were not envisaged as judicial bodies obliged to comply with fair trial guarantees.”95 For US combatants, there are regulations applicable to all branches of the armed forces that specify the constitution of Article 5 tribunals and the procedures to be followed.96 (See Cases and Materials, this chapter.) The US Army regulation is the template the other service generally follow. It specifies that three officers and an interpreter, if necessary, are required: one officer, a judge advocate, if available, acts as both recorder and the presenter of evidence, plus two other officers. The three constitute the “tribunal.” The senior tribunal member is a major, or higher rank. The tribunal can order the appearance of US military witnesses and can request the presence of others, all of whom testify under oath. With the detainee present and his rights to present evidence and examine witnesses having been explained, the tribunal hears the evidence and the witnesses, and then makes its determination. It is a fact-finding procedure, rather than an adversarial proceeding. Hearsay evidence may be considered. Unless it is established by a preponderance of the evidence that the detainee is not enti‐ tled to POW status, upon majority vote he is granted that status. Hearings may be as brief as a half-hour. Written hearing summaries in which detainees are denied POW status are examined by a senior judge advocate for legal sufficiency.97 Shortly after 9/11, the US president and his advisors, apparently thinking the Geneva Conventions were irrelevant to the war on terror‐ ism,98 and believing there was no doubt as to the individual status of the few Taliban captured in Afghanistan, determined that Article 5 https://ereader.cambridge.org/wr/printpage.html Side 14 af 33 Individual Battlefield Status 07.11.2024 14.05 hearings in the cases of all captured Taliban and al Qaeda fighters were unwarranted.99 “[T]he President could reasonably interpret GPW [the Geneva POW Convention] in such a manner that none of the Taliban forces fall within the legal definition of POWs,” Assistant At‐ torney General Jay Bybee advised the White House. “A presidential determination of this nature,” Bybee continued, “would eliminate any legal ‘doubt’ as to the prisoners’ status, as a matter of domestic law, and would therefore obviate the need for Article 5 tribunals.”100 Internationally and domestically, this was seen as a senseless disregard of the Geneva Conventions, particularly given the brief and un‐ complicated nature of Article 5 hearings. A former Assistant US Attorney General and head of the Office of Legal Counsel wrote, “If the administration had simply followed the Geneva requirement to hold an informal ‘competent tribunal,’ or had gone to Congress for sup‐ port on their detention program in the summer of 2004, it probably would have avoided the more burdensome procedural and judicial requirements that became practically necessary under the pressure of subsequent judicial review.”101 Not all agreed with that view, either. In 2004, Salim Hamdan was a Guantánamo detainee scheduled for trial by military commission, after having been found to be an “enemy combatant” by a Guantánamo Combatant Status Review Board. Hamdan had never been heard by an Article 5 tribunal, however. He pe‐ titioned the US District Court in Washington, DC, the court designated to hear Guantánamo cases. The court held, This provision [Geneva Convention III, Article 5] has been implemented and confirmed by Army Regulation 190–8 … Hamdan has asserted his entitlement to POW status, and the Army’s regulations provide that whenever a detainee makes such a claim his status is in doubt [the trigger for Article 5 tribunals] …. There is nothing in this record to suggest that a competent tribunal has determined that Hamdan is not a prisoner-of-war … The government must convene a competent tribunal.”102 On appeal, the government prevailed.103 6.7 The Unprivileged Belligerent and Direct Participation in Hostilities With rare exception, such as France’s 1793 Declaration of the Rights of Man, which conferred the people’s “sacred right” to rise up against an oppressive government, armed rebellion has been considered a serious offense against the state and an illegitimate avenue of protest. “In theory, states have a monopoly on the use of force and the members of their armed forces are the only ones empowered to wield it. It is always the state that determines who the enemy is and … no entity other than the state has the right to resort to force.”104 Today, other than levées en masse, civilians who actually employ armed force in an armed conflict are said to directly participate in hostilities. In either a NIAC or an IAC, other than levées en masse, a civilian who directly participates in the armed conflict has “unprivileged bel‐ ligerent” status. Defining the phrase “direct participation in hostilities” has vexed LOAC students and practitioners since it was included in 1977 Addi‐ tional Protocol I. Article 51.3 of Protocol I reads: “Civilians shall enjoy the protection afforded by this Section [General Protection Against Effects of Hostilities], unless and for such time as they take a direct part in hostilities.” Additional Protocol II, Article 13.3, ap‐ plicable in non-international armed conflicts, reads the same. Practitioners and scholars have debated the meaning of “for such time” and “direct part” since publication of the Protocols. The armed forces of many states were long frustrated by the “revolving door” nature of direct participation. In a NIAC, for instance, let us say that Baba the bomb-maker was known to build deadly roadside improvised explosive devices. But Baba’s “office,” where he made his bombs and could be apprehended or targeted because building bombs constitutes taking a direct part in hostilities, could not be discov‐ ered. He was, however, regularly seen entering and leaving a certain restaurant for lunch – a time when he was not taking a direct part in hostilities and could not, under the terms of Article 51.3, be targeted. After lunch, he always slipped into the casbah and disappeared into his tucked-away “office” again, to build more bombs. The watching armed force was foiled by their inability to locate Baba when he was https://ereader.cambridge.org/wr/printpage.html Side 15 af 33 Individual Battlefield Status 07.11.2024 14.05 directly participating – foiled by his ever-changing status, now a civilian, now an unlawful combatant, now a civilian. Like a revolving door. Direct participation in hostilities, with its accompanying unlawful combatant status, in either IAC or NIAC, is a concept applicable only to civilians. Civilians who directly participate do not have the combatant’s privilege and they are not entitled to POW status.105 Direct participation refers to specific hostile acts, and such acts suspend a civilian’s noncombatant protection and they may be targeted and killed. But few legal phrases of significance can be comprehensively defined in a few sentences. More comprehensive guidance was pro‐ vided in a 2009 ICRC report that reflects a five-year study of the phrase.106 Although imperfect, the ICRC’s Interpretive Guidance pro‐ vides a degree of clarity previously absent. 6.7.1 Criteria for Direct Participation in Hostilities According to the ICRC’s Interpretive Guidance, in an IAC, three criteria must be met for a civilian to be considered directly participating in hostilities. All three criteria must be met to constitute direct participation. First, the civilian’s act must be likely to adversely affect the military operations of a party to the conflict or, alternatively, be likely to inflict death, injury or destruction of persons or objects protected against direct attack. This is referred to as the “threshold of harm requirement.” That the harm actually occur is not required, only that there is an objective likelihood that it will occur. Thus, attempts meet this criterion. Sabotage or other unarmed activities qualify. Clearing mines, guarding captured military personnel, and cyber-attacks, as well. Violent acts directed against civilians or civilian objects, such as sniper attacks or the bombardment of civilian residential areas, sat‐ isfy this criterion.107 Baba the bomb-maker’s activities satisfy this criterion. Second, there must be a direct causal link between the act and the harm likely to result. This is a requirement of “direct causation.” Direct causal links are acts that objectively contribute in a direct way to the defeat of an opposing armed force. Baba the bomb-maker sat‐ isfies this criterion, as well. A frequent classroom example of a direct causal link is a civilian volunteer driving a military ammunition truck to operationally engaged fighters. The driver’s act is a direct causal link to a likely adverse effect on the military operations of the opposing Party to the conflict. The civilian is taking a direct part in hostilities, forfeits his civilian protection and becomes a lawful target because, as he drives, he is tak‐ ing a direct part in hostilities. Moving ammunition from the factory where it is manufactured to a port for shipment to a warehouse in the conflict zone is not a direct causal link, however. It is too indirect an act. Political, economic, and media activities, such as propaganda dissemination, and supportive financial transactions, although war-sustaining, are also too indirect to result in a civilian’s loss of protection.108 The design, production, assembly, or shipment of weapons and military equipment are part of the general war effort but, according to the ICRC Guidance, do not constitute a sufficiently direct causal link likely to adversely affect the military operations of an opposing party. The planting or detonation of bombs, mines, booby-traps, or improvised explosive devices are acts that do have a direct link. The Interpre‐ tive Guidance holds that, in a combat zone, assembling an IED is not direct participation, an opinion with which the US and other states disagree. Identifying and marking targets and transmission of tactical intelligence are direct causal links. The Guidance cautiously holds that “[w]here civilians voluntarily and deliberately position themselves to create a physical obstacle to military operations of a party to the conflict, they could directly cross the threshold of harm required for a qualification as direct participation.”109 While the possible death or wounding of civilians, including voluntary human shields, always figures in proportionality calculations, opposing commanders are likely to take a harsher view of human shield volunteers. Disturbingly, the US Department of Defense Law of War Manual would have attackers who encounter human shields not consider propor‐ tionality in weighing whether to continue or break off a developing attack: “If the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields and allow violations by the defending force to increase the legal obligations on the attacking force.”110 https://ereader.cambridge.org/wr/printpage.html Side 16 af 33 Individual Battlefield Status 07.11.2024 14.05 A civilian’s provision to an armed terrorist group of financial contributions or construction materials, alone, is too attenuated to rise to the direct causal link required to constitute direct participation. The same may be said of scientific research and design of weapons and equipment. The recruitment and general training of personnel “may be indispensable, but [is] not directly causal, to the subsequent in‐ fliction of harm.”111 Cooks and housekeepers provide no direct causal relation, a targeting position with which the United States disagrees. Not only must the civilian’s act objectively be likely to adversely affect the military operations of a party to the conflict, or be likely to in‐ flict death, injury, or destruction of persons or objects protected against direct attack and have a direct link between the act and the harm likely to result, it must (third), specifically be designed to directly cause the required threshold of harm in support of a Party to the conflict and to the detriment of another. In other words, there must be a “belligerent nexus” between the civilian’s act and the resultant harm. For example, “although the use of force by civilians to defend themselves against unlawful attack or looting, rape, and murder by marauding soldiers may cause the required threshold of harm, its purpose clearly is not to support a Party to the conflict against another.”112 In such an instance, civilians employing armed force against rogue soldiers would not constitute direct participation in hos‐ tilities because the force employed by the civilian is not employed to support any Party to the conflict. Baba the bomb-maker strikes out; his acts are specifically designed to directly cause or exceed a threshold of harm in support of a Party to the conflict. The three criteria include a civilian’s actions preparatory to acts of direct participation. That is, direct participation in hostilities includes deployment to and return from the location of the direct participation. It includes the preparatory collection of tactical intelligence, the transport of personnel, the transport and positioning of weapons and equipment, as well as the loading of explosives in, for example, a suicide vehicle – although not, without more, the hiding or smuggling of weapons; not financial or political support of armed individuals. These three criteria – threshold of harm, direct causation, and belligerent nexis – constitute a reasonably broad description of “direct par‐ ticipation”; one that, in an armed conflict against an enemy without uniforms or insignia, who moves among and depends upon civilians for concealment, gives the unlawful combatant’s opponent guidance that offers significant targeting latitude. (Further discussion of continuous combat function is found in Chapter 14.4.3, and in its Cases and Materials.) Late in the US conflict against armed opposition groups in Afghanistan, there was a large contingent of Central Intelligence Agency per‐ sonnel in Afghanistan as advisors to Afghan military units. There are thought to be several hundred CIA officers and contractors in Afghanistan, a number that fluctuates often, and it is perceived as one of the agency’s largest presences outside of the Washington area … CIA personnel operate in various places around the country, advising militia groups … as part of an effort to hunt Al Qaeda … including the Haqqani Taliban.113 Needless to say, the CIA’s actions are specifically designed to be causal links to deadly adverse effects on the operations of armed opposi‐ tion groups opposing the Afghan government. That is to say, CIA personnel in Afghanistan have been directly participating in hostilities. They are not combatants – members of the armed forces of a Party to the conflict – making them unlawful combatants, in the eyes of the law of armed conflict. 6.7.2 The Individual Status of Terrorist Fighters What was the individual status of al Qaeda, Taliban, and ISIS/ISIL/Daesh fighters in Iraq, Afghanistan and elsewhere in the Middle East, Africa, and Asia? Terrorist armed opposition groups of any name do not observe LOAC. Are they protected by it? If non-state actors do not observe LOAC, may their enemies disregard LOAC in their armed conflicts against them, as well? Of course not. “[T]here is no textual or historical evi‐ dence suggesting that the Conventions embrace this understanding of reciprocity.”114 Common Article 2 of the 1949 Conventions reads, https://ereader.cambridge.org/wr/printpage.html Side 17 af 33 Individual Battlefield Status 07.11.2024 14.05 “Although one of the powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.” The Geneva Conventions are not a matter of, “we will if you will.” Having been ratified by a state, they constitute an obligation that the state owes its own citizens, as well as all victims of war. In the tumultuous days following 9/11, some senior US government lawyers were seemingly unaware of common Article 3’s application, or Geneva Convention IV’s provisions for protected persons. Or they chose to ignore them. In 2008, the Under Secretary of Defense for Policy wrote, “The Pentagon’s leadership appreciated the importance of honoring the Geneva Conventions, but issues arose time and again that required the very difficult balancing of weighty but competing interests.”115 No, Mister Under-Secretary, in LOAC and IHL there are no “competing interests” that render the Geneva Conventions inapplicable. Yet, in a 2002 memorandum, the president wrote, “Pursuant to my authority as Commander-in-Chief and Chief Executive of the United States … I hereby determine … none of the provi‐ sions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world.”116 That presidential determination was soon reversed, due largely to the vocal objection of senior military officers who did not want to fight a conflict without the humanitarian umbrella of the Geneva Conventions in place. That the president’s determination was even made says much about the awareness of LOAC in the executive branch of that period. What was the individual status of enemy armed opposition group fighters? “There is surprisingly little guidance in the [Geneva POW Convention] on the question of status determination.”117 To determine the status of armed opposition group fighters, first answer the ini‐ tial question: conflict classification. Characterization of an anti-terrorist conflict as part of a “Global War on Terrorism” does not mean that an actual war is in progress, of course. The conflict’s status is further clouded by the decision to categorize the campaign against transnational terrorism as a “war” with resulting confusion over the legal regime that applies. Today, the “war” against terrorists is a NIAC – states on one side of the conflict, engaged against non-state terrorist groups of one stripe or another, but no opposing state in‐ volvement. (Not in a direct sense, anyway.) Always the second question: individual status. Terrorist fighters are not members of the armed forces of a state Party to the conflict, negating the possibility of their being lawful combatants.118 The only remaining alternative? They are “civilians,” but of what variety? They are civilians and they take a direct part in hostilities. There is no law against direct participation, per se, but it indicates unprivileged belligerency, or unlawful combatant status. Unlawful combatants are “persons who never met the qualifications to be entitled to the privi‐ leges of combatant status, but who have, by engaging in hostilities, incurred the corresponding liabilities of combatant status (i.e., forfeit‐ ed one or more of the protections of civilian status).”119 Like any other civilian who is directly participating in an armed conflict, terrorists – opposition group fighters who take up arms – give up their protection as civilians and may be targeted and killed whenever they are directly participating in hostilities. If captured, they will not have satisfied the four conditions for POW status (they lack a fixed distinctive sign, may not have carried arms openly, and did not conduct their operations in accordance with the laws of war). They are protected persons and detainees,120 with the “humane treatment” protections of common Article 3, and they are triable in domestic or military courts for pre-capture acts they com‐ mitted that rendered them unlawful combatants. 6.7.3 Jus in Bello Protections Due Captured Unlawful Combatants In common Article 2 IACs, captured combatants and retainees are protected by 1949 Geneva Convention III, the POW convention. What protections does LOAC mandate for captured armed opposition group fighters, unlawful combatants, in common Article 3 NIACs? A plain reading of common Article 3 indicates it is applicable only in non-international armed conflicts, but today common Article 3 is considered customary international law applicable in all armed conflicts, regardless of their nature. Additional Protocol I is applicable to IACs. Its Article 75 lays out a generous measure of human rights (“fundamental guarantees”) sounding in human rights that pertain in IACs. Those guarantees, along with the humane treatment requirements of common Article 3, are basic rights due every prisoner, de‐ https://ereader.cambridge.org/wr/printpage.html Side 18 af 33 Individual Battlefield Status 07.11.2024 14.05 tainee, unlawful combatant, and enemy combatant. Most states accept their customary law status. The guarantees in Article 75 of Addi‐ tional Protocol I and common Article 3 are the minimum protections applicable to captured unlawful combatants. The United States, however, holds that Article 75 of Protocol I is customary law in international armed conflicts, but not in non-international conflicts. As previously noted (Chapter 4.2.1.2), the US DoD Law of War Manual notes: Although not a Party to AP I, the United States has stated that the US Government will choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an [common Article 2] international armed conflict, and expects all other nations to adhere to these principles as well. This statement was intended to contribute to the crystallization of the principles contained in Article 75 as rules of customary international law.121 A footnote to this Law of War Manual paragraph makes explicit that the government’s “sense of legal obligation” to provide Article 75 rights only extends to common Article 2 international armed conflicts. Captured unlawful combatants, however, may look to common Article 3’s customary international law assurances of humane treatment. Exactly what constitutes “humane treatment”? The 2016 Commentary to Geneva Convention I first explains that the term, “shall be bound” in the first sentence of the Article, makes clear that states Party to the Conventions have an obligation of humane treatment of captured fighters of all other Parties to any conflict. It goes on to note that “humane treatment” is not defined anywhere in the Conven‐ tions or Additional Protocols. “The meaning of humane treatment is content specific and has to be considered in the concrete circum‐ stances of each case, taking into account both objective and subjective elements, such as the environment, the physical and mental condi‐ tion of the person.”122 Including a comprehensive definition of humane treatment in common Article 3 would have created a framework that risked being too narrow and inflexible, and as such incapable of ensuring humane treatment in situations where unforeseen or particular circumstances, such as climatic conditions, cultural sensitivities or individual needs, have to be taken into account. At the same time, giving no guidance at all on the meaning of humane treatment could have left Parties to an armed conflict with too much latitude, leading to interpretations incompatible with the objectives of this fundamental rule.123 The Commentary does offer concrete guidelines to the meaning of “humane.” “In accordance with the ordinary meaning of the word ‘humane’, what is called for is treatment that is ‘compassionate or benevolent’ towards the persons protected,” and, “treatment that re‐ spects a person’s inherent dignity as a human being”124 It concludes its definition, saying: Such examples include treatment with all due regard to the person’s sex, respect for convictions and religious practices, provision of adequate food and drinking water as well as clothing, safeguards for health and hygiene, provisions of suitable medical care, protection from violence and against the dangers of the armed conflict, and appropriate contacts with the outside world.125 After declining to provide a comprehensive definition of “humane,” the ICRC’s Commentary offers a fairly comprehensive definition, af‐ ter all. 6.8 Protected Persons A protected person is a civilian who enjoys the be