Humans in Armed Conflict: Questions of IHL status and of rights IHL triggers and distinction between IACs and NIACs: what triggers an armed conflict and about the types of armed conflicts out there. IHL status closely related to conflict determination - nexus collective/individual Hague Law/Geneva Law – regulation of conduct of hostilities/treatment of those hors de combat. IHL status determines… treatment upon change of circumstances (for example the combatant that is captured becomes a POW), determines the protection afforded to a person by international law (for example protection of civilians against military operations) Legal consequences of conduct (for example use of force by a combatant or direct participation in hostilities by civilian) All of the above, tremendous influence on rights of the individual

Structure of IHL status in IACs International Armed Conflict (GC CA2) (AP 1 Article 1), Default position – equality of belligerents: Two or more parties engage in hostilities on an equal footing, with immunity for violent acts in the conduct of hostilities, as long as in accordance with IHL. Collective/individual Nexus, Dieter Fleck: ”Only a party to a conflict which is a subject of international law can have armed forces whose members are combatants. This reflects the basic relation in international law between the state (as a subject of international law), its armed forces (as its organ), and the members of the armed forces (as combatants)”. To understand the fault lines of such status: The case of wars of national liberation AP 1 article 1(4).

Individual status in IACs: Combatants Combatants (targetable, right to participate in hostilities, POW status, immunity for violence other than war crimes,) in IACs: GC III Article 4 1) regular members of the armed forces 2) Unincorporated resistance movements and militias, granted 5 criteria fulfilled. AP 1 Article 44 Reforming criteria of combatancy of resistance movements and militias Can you spot the differences compared with GC III Article 4?

Individual status in IACs: Non-combatants and Levée en masse GC III Article 4(A4-5), Non-combatants: persons who accompany armed forces with no right to conduct hostilities (other than in self- defence) but right to be treated as members of armed forces upon capture – POW status! for example civilian members of military aircraft crews, supply contractors, war correspondents, authorized service personnel responsible for welfare of armed forces (chaplains, medical personnel etcetera). GC III Article 4(A6) Levée en masse, a situation where, upon the approach of an invading army, civilians in the threatened territory spontaneously take up arms in order to resist invasion, carry arms openly and obey IHL.

Individual status in IACs: Irregular forces not entitled to combatant status Spies: Article 29 Hague regulations, AP I article 46, can be both civilians and combatants captured out of uniform whilst engaging in espionage. Mercenaries: see in particular AP I article 47, cumulative criteria. Private Military and Security Contractors: Civilians unless incorporated in armed forces. Can be civilians DPH.

Individual status in IACs: Civilians AP 1 article 50: If you are not a combatant you are a civilian, protected by IHL. AP 1 article 51: Unless, and for such time, as taking a direct part in hostilities (DPH) Commentary to AP: immunity afforded to civilians subject to an overriding condition: abstaining from all hostile acts, causing actual harm to the personnel and equipment of armed forces.

Individual status in IACs: Civilians DPH What constitutes DPH? ICRC 2009 interpretive guidance… The act: likely to adversely affect military operations or military capacity of a party, or inflict death or harm on persons or objects protected against attack (threshold of harm) Direct link between act and harm likely to result from it, or from coordinate military operation of which act constitutes integral part (direct causation) Specifically designed to transgress threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus) The timeframe for loss of protection: Protection lost for the duration of each act of DPH, travel to and from included. High-level members of organised groups do not regain protected status as long as they assume a continuous combat function

Structure of IHL status in NIACs Default position, GC CA 3 and AP II art. 1 and 13. Armed state forces v. Organized armed groups (”continuous combat function” and civilians taking a direct part in hostilities (ICRC 2009 Interpretive guidance). Participation not internationally wrongful but not legitimized or immunized either = IHL leaves it for domestic law to make clear who can exercise violence legitimately. Invariably, state use of force immunized, non-state use of force criminalized by domestic law. (GC CA 3, AP II art. 3). BUT, there is at least one way in which IHL favours immunity for non- state actors in NIACs. AP II, article 6(5), retrospectively, through amnesties.

The Panama example I: Question of IHL status, lawful target and detention authority Question 1: PDF REGULAR FORCES = GC III Art. 4 regular members of the armed forces in IAC targetable and subject to detention for the remainder of the conflict (GC III art. 118), in NIAC, organized armed group? Question 2: Reserve forces, the doctor in particular = GC III Art. 4A(4-5) Non-combatant ”retained Personnel”, respected, protected, and retained with POWs to assist in ministering to their needs released as soon as they are not required to assist them. Here, possibly tried for war crimes. Question 3: ”Dignity Battalions” = GC III art. 4A (2) Unincorporated resistance movements and militias, do they comply with the five criteria? Possibly AP. 1 if considered fighting against ”alien occupation or colonial domination”, subject to four (one less) criteria. Question 4: Paramilitary Police Force ”Los Tigres” =could be incorporated into armed forces according to GC III art. 4A or ”Civil defence” forces AP 1 art. 61.

The Panama example II: Question of IHL status, lawful target and detention authority Question 6: Civilians taking up arms in support of Americans = professed desire of support insufficient for incorporation with invading forces, Civilians DPH in the eyes of the Panama Defense Forces. Question 7: “Machos del Monte” = Once occupation (effective control) is established, armed forces of the enemy cease to exist, treated as any other organized armed group involved in a NIAC or, at a minimum, civilians DPH. Alternatively, they are fighting against alien occupation or colonial domination AP I art. 1(4).

The Panama example III: Question of IHL status, lawful target and detention authority Question 8: FARC allies of Noriega = Not armed forces and probably not “belonging to a party to the conflict” therefore Civilians DPH subject to targeting as such and detention according to GC IV art. 78. Question 10: Common criminals and mental patients = Civilians, Important to note that petty crime does not constitute DPH. Can be detained according to GC IV art. 78.