1) THE ROLE OF STATUS IN IHL

2) STATUS AND QUALIFICATION OF ARMED CONFLICT

3) REPERCUSSIONS OF STATUS ON 3 LEVELS :ON THE BATTLEFIELD :

1. CONDUCT OF HOSTILITIES

IN DETENTION / AT THE HANDS OF THE ADVERSARY 2. PROSECUTION3. TREATMENT

1) PRACTICAL APPROACH TO STATUS

The Issue of STATUS in IHLCECILIE

HELLESTVEIT 07.09.09

Status in International Humanitarian Law

« humanitarian » = euphemism ? RULES MADE FOR SITUATIONS OF HOSTILITIES STATE CANNOT PERFORM THE NORMAL FUNCTIONS AS A STATE RULES ABOUT HOW TO TREAT YOUR ENEMIES (and neutrals)

the most basic instrument in IHL to mitigate military necessity and humanity : status

status human beeings separated into categories based on their function and/or relation with a party in a conflict

status inequality of the rights and obligations of human beeings based on their function (unlike human rights )

status obligation to discriminate between these categories of human beings

International Armed Conflict(IAC)

International Armed Conflict(IAC)

Non-international Armed Conflict (NIAC)Non-international Armed Conflict (NIAC)

- International armed conflict (GCart2)

- Belligerent occupation (GCart2)- Wars of national liberation API

1(4)

The four Geneva Conventions of 1949 & the first additional protocol of 1977

FULL STATUS –REGIME :

Combatant & civilian : clear categories, coherent system

- Non-international armed conflictbetween the state and organized group with territorial control

The second additional protocol of 1977

- Non-international armed conflict between the state and groups or between groupsCommon Article 3 to the four Geneva Conventions

Combatant & civilian : Less

clear categories, less coherent system

Status-’regimes’ vary with the qualification of conflict

STATUS IMPORTANT IN 3 MAIN REGARDS :

1) On the battlefield

1) Conduct of hostilities

2)

2) In detentio/ in the hands of the adversary

Prosecution

Treatment in detention

IHL

Lawful targetsLawful targets Target immunityTarget immunity

Those who are combatants(API art 43)

+Those who do take

part in hostilities(civilians)

Civilians : non-combatants

« who do not take direct part in hostilities »

1) Status in conduct of hostilities : target immunity

Combatants Civilians

IMMUNITY OF CIVILIANS Immunity from direct

targeting API art 51(2) APII art13 [3] Derivated rules e.g: Parties to the conflict

must distinguish (API art 48)

Combatants obliged to distinguish themselves API art 44

Prohibition against indiscriminte attacks API art 51(4)

IMMUNITY OF CIVILIANS Immunity from direct

targeting API art 51(2) APII art13 [3] Derivated rules e.g: Parties to the conflict

must distinguish (API art 48)

Combatants obliged to distinguish themselves API art 44

Prohibition against indiscriminte attacks API art 51(4)

Combatants Civilians

IMMUNITY OF CIVILIANS Immunity from

direct targeting API art 51(2) Parties to the

conflict must distinguish (API art 48)

Combatants obliged to distinguish themselves API art 44

Prohibition against indistcriminte attacks API art 51(4)

IMMUNITY OF CIVILIANS Immunity from

direct targeting API art 51(2) Parties to the

conflict must distinguish (API art 48)

Combatants obliged to distinguish themselves API art 44

Prohibition against indistcriminte attacks API art 51(4)

Persons directly participating in hostilitiesDPHAPI 51(3)

Persons directly participating in hostilitiesDPHAPI 51(3)

MercenariesAPI art 47

MercenariesAPI art 47

LAWFUL TARGETS .

Conduct of hostilites : Rules for IAC and NIAC ≈ the

sameIs NN a lawful target ?

Is he a combatant ?OR

Is he directly participating in hostilites ?

If ”NO” to both these questions: NN is a civilian with target immunity ( API art 51(2) and APII art 13 (3))

Combatant /DPHCombatant /DPH CivilianCivilian

Can be directly targeted

BUT : Subject to limitations on means and methods of warfare

Can never be directly targeted

Protected against indiscriminate attacks

BUT : * is NOT protected against attack which is expected to cause incidental loss of civilian life which would NOT be excessive in relation to the concrete and direct military advantage anticipated

(proportionality in attack)

Basic tenet : all parties must respect the principle of distinction in hostilites

COMBATANTSCOMBATANTS CIVILIANSCIVILIANS

COMBATANTSPersons who have

the right to directly participate in hostilites,(’lawful combatants’)

and cannot be prosecuted for it(’priviledge of combatancy’)

« everyone else »: Can be prosecuted

for engaging in lawful acts of war

2) Status : PROSECUTIONProsecutorial immunity

Combatant Civilian

POW- no prosecution for lawful acts of war (GCIII art 87)

A combatant becomes a POW when he falls into the power of the adversary (API art 44)

The right to be a POW : GCIII art 4

Members of the armed forces of a party to the conflict, militias and volunteer corps forming part of such forces

Other militias or volunteer corps fulfilling the 4 criteria of commander, distinctive sign, openly carrying weapons and conducting their operations in accordance with the laws of war

etc

A civilian who has directly participated in hostilities and does not have the right to be POWs, may be prosecuted for lawful acts of war (APIart 45)

(Special rules , spies etc)

CombatantCivilian

IMMUNITY OF COMBATANTS Immunity from

prosecution for lawful acts of war

IMMUNITY OF COMBATANTS Immunity from

prosecution for lawful acts of war

IMMUNITY OF CIVILIANS Immunity from

direct targeting

IMMUNITY OF CIVILIANS Immunity from

direct targeting

PARTICIPATE DIRECTLY IN HOSTILITIES

PARTICIPATE DIRECTLY IN HOSTILITIES

POW (GC III)

Combatant who has been captured while breaking the rule of distinction inAPI 44(3) and (4) – in civilian clothing, not carrying arms openly looses combatant status

Combatant who has been captured while breaking the rule of distinction inAPI 44(3) and (4) – in civilian clothing, not carrying arms openly looses combatant status

”Treated as POW””Treated as POW”Spying AP 46Spying AP 46

CombatantCivilian

IMMUNITY OF COMBATANTS Immunity from

prosecution for lawful acts of war

IMMUNITY OF COMBATANTS Immunity from

prosecution for lawful acts of war

IMMUNITY OF CIVILIANS Immunity from direct

targeting

IMMUNITY OF CIVILIANS Immunity from direct

targeting

PARTICIPATE DIRECTLY IN HOSTILITIES

PARTICIPATE DIRECTLY IN HOSTILITIES

Combatant in civilian clothing and not carrying arms opely (API 44(3) and (4) )

Combatant in civilian clothing and not carrying arms opely (API 44(3) and (4) )If a civilian endangers the principle of distinction between combatants and civlians

by participating in hostilities he looses his privilegde of immunity of civilians: he can be directly targeted ( and can be prosecuted for lawful acts of war)

If a combatant endangers the principle of distinction between combatants and civiliansby not distinguishing himself properly he looses his priviledge of immunity of combatancy:He can be prosecuted for lawful acts of war (and can be directly targeted)

IACIAC NIACNIAC

COMBATANT – clearly defined has immunity from

prosecution for lawful acts of war

CIVILIAN –negatively defined from combatant does not have the right

to participate in hostilites , and thus does not have immunity for such acts

COMBATANT : not definedMembers of State armed forces have immunity from prosecution (customary law)

EVERYONE ELSE can be prosecuted for engaging in lawful acts of war

But may be given amnesty (‘subsequent immunity’)APII art 6 (5)

COMBATANTSCOMBATANTS CIVILIANSCIVILIANS

Prisoners of War GC III (art 4)

Soldiers hors de combat Sick, wounded, surrenderedOn land : GC I (“protected persons” art 13)At sea : GC II(“protected persons” art 13)

GCIV « protected persons » (art 4) - In the hands of a

Party…of which they are not nationals »

- Not protected by GCI-III

Status : TREATMENT IN THE HANDS OF THE ADVERSARY

Combatants Civilians• IMMUNITY OF

COMBATANTSImmunity from prosecution for lawful acts of war

• IMMUNITY OF COMBATANTS

Immunity from prosecution for lawful acts of war

IMMUNITY OF CIVILIANSImmunity from direct targeting

IMMUNITY OF CIVILIANSImmunity from direct targeting

PersonsDPHPersonsDPH

Regime of Treatment in Detention

POW (GC III)-Combatant -’Non-combatants’ in army GC III art 4A no1-Accompanying personell-GC III art 4A no4

Minimum protectionAPI art 75

DPH, ( art 45(3)

DPH, ( art 45(3)

Detained civiliansGC IV (section IV), API (section III)

IAC IAC NIACNIAC

System based on States on both sides ( enemy combatants, enemy civilians, but NEUTRALIZED with regard to the conflict)

Basic rules of protection

Inequality : state versus non-state actors

Few rules in IHLInteraction /

support of International Human Rights Law for state actor

Treatment at the hands of the adversary/ in detention

STATUS IMPORTANT IN 3 MAIN REGARDS :

1) Battlefield

1) Conduct of hostilities

2)Rules of IAC ≈ NIAC

2) In detentio/ in the hands of the adversary

Prosecution

Rules of IAC : clear system

Rules of NIAC : rudimentary/one sided

Treatment in detention

Rules of IAC = fully fledged system of IHL

Rules of NIAC = very different. Rudimentary in IHL, other rules to support ( human rights etc)

IHL

Example : Example : AfghanistanAfghanistan

Two trucks loaded with fuel are highjacked by the Taleban. The Germans call in airsupport, the trucks are bombed. Approx. 90 people die. Many burned to death.

Was the attack lawful ? Must determine status

Practical approach

Status should be determined based on

1) the conflict APPLICABILITY OF IHL

2) the parties QUALIFICATION OF

CONFLICT – IAC / NIAC)

3)the link of a given person to a party to the conflict

STATUS

THUS :

1) does IHL apply ?

2) what regime of IHL applies ?

3) what status do the humans involved have in relation to this conflict ?

IF ”Combantants”/”DPH”

IF ”Combantants”/”DPH”

IF « Civilians with target immunity » IF « Civilians with target immunity »

Did they use lawful means and methods of warfare against the lawful targets?

Did they know that the were civilians with target immunity and still intentionally targeted them ? Principle of distinction

Should they have known ? Precaution in attack

If they did know, but decided to attack anyway( but without intentionally targeting them) :

Did they use a means/ method that could be directed at the military target only? Prohibition of indiscriminate attacks

Did they respect the principle of proportionality ? Was the expected loss of civilian life excessive in relation to the concrete and direct military advantage anticipated ?Principle of proportionality

SUM UP

Status is crucial, and relevant for almost every question of IHL

Status is more complex than the core division between « those who fight » versus « those who do not fight ».

The status ‘regimes’ vary with the qualification of conflict Status works differently on different levels (hostilities,

prosecution, detention). The status ‘regimes’ of IAC – NIAC are similar with regard

to hostilities, less with prosecution and least with detention.

The main reason behind the complexity of the rules of status is the desire to enhance and protect the principle of distinction ( on the battlefield)

Status should be determined based on 1) the conflict ( APPLICABILITY OF IHL) 2) the parties (QUALIFICATION OF CONFLICT – IAC / NIAC) 3)the link of a given person to a party to the conflict (STATUS)

neutralisation of combatants ( but not more destruction than what is necessary),

Distinction between combatants and civilian population (API 48)

Target immunity for civilians and civilian population ( API ar 51 (2)

Only military objectives can be directly attacked ( API art 52 (2)

protection of civilians against the dangers arising from military operations (API 51(1))