Protected Persons Matthew J. Festa Professor of Law, South Texas College of Law Associate Professor, International & Operational Law, U.S. Army Judge Advocate General’s Legal Center & School* *Non-attribution policy: materials and ideas presented are those of the instructor and, are not to be attributed to any institution or to the U.S. Government

I NTERNATIONAL H UMANITARIAN L AW K EY I SSUE : C OMBATANTS V. C IVILIANS

Protected persons: what’s at stake? 1. Are you a lawful target?1. Are you a lawful target? 2. How are you to be treated?2. How are you to be treated? KEY FACTS:KEY FACTS: –STATUS –CONDUCT

S TATUS D URING C ONFLICT NONCOMBATANTS COMBATANTSCIVILIANS GC III, art. 4 AP I, art. 43(2) GC I, art. 28 GC IV UNPRIVILEGED BELLIGERENTS US Policy

C OMBATANT

W HO IS A L AWFUL C OMBATANT ?  Hague IV (belligerents) / GC III (POW) definitions Armed forces of a State party to a conflict—art. 4(1) Militia / volunteer corps / org resistance movements belonging to a State party if (art. 4(2)): Under responsible command; Fixed, distinctive, recognizable sign; Carry arms openly; & Conduct operations IAW laws of war  AP I (art. 43(2)) (1977) Members of the armed forces of a Party to the conflict Under AP I, a “Party” is a State (with a limited exception that the United States rejects)

L AWFUL C OMBATANT S TATUS  Right to participate directly in hostilities  Lawful targets  Excludes those hors de combat / non-combatants  Combatant Immunity  Legal privilege for combatants to use lethal force  Except war crimes/not connected to armed conflict  Entitled to POW status if captured

NONCOMBATANT

N ONCOMBATANTS  Medical / Medical Admin / Chaplains  IAC (GC I) Exclusively engaged Exclusively engaged Abstain from hostile acts Abstain from hostile acts Respect and Protect Respect and Protect Retained Personnel Not POWs Retained Personnel Not POWs Armlet / ID card—art. 40 Armlet / ID card—art. 40  NIAC (CA 3 / AP II) Respect and Protect Respect and Protect Wear emblem Wear emblem

Protected?

R ETAINED P ERSONNEL ? Al Warafi v. Obama -May 24, 2013  Al Warafi claim: GC I, art. 24 status  DC Circuit Ct denied Habeas Petition  Captured during early part of Afghan war – possibly as part of State armed force in an IAC (not decided)  Holding: GC I status requirements not applicable because “mandatory indicia” required by GC I art. 40 not met  Concurrence: Not all of GCs will apply as broadly as CA 3

UNPRIVILEGED BELLIGERENT

DPH (Direct Participation in Hostilities) Civilians shall enjoy the protection afforded by this section/part, unless and for such time as they take a direct part in hostilities. AP I, art. 51(3) AP II, art. 13(3)

U NPRIVILEGED B ELLIGERENTS  Targetable (DPH/CCF)  Not entitled to engage in combat activities  Traditionally: War criminals or national criminals War criminals or national criminals  Not expressly recognized in GCs but arguably by AP I (arts. 44(4); 45(3)) & AP II (e.g., art. 1(1))  No combatant immunity

CIVILIANS

D EFINING C IVILIANS  GC IV (1949) – not defined  AP I (1977) “The civilian population comprises all persons who are civilians” –art. 50 “The civilian population comprises all persons who are civilians” –art. 50 Civilian ≠ Combatant (defined in the neg.) Civilian ≠ Combatant (defined in the neg.)  CA 3 / AP II – not defined

C IVILIANS IN M ILITARY O PERATIONS  General population, including:  Wounded/injured/ displaced  Criminals  Rescue workers/ police/ first responders, including national Red Cross  Civilians accompanying the forces  Third country nationals, including ICRC, NGOs, security contractors, journalists, etc.

P ROTECTIONS FOR CIVILIANS  < 19 th Century  Lieber Code (1862)  Hague (1899/1907)  GCs < WWII  IAC GC IV (1949) GC IV (1949) AP I AP I  NIAC CA 3 CA 3 AP II AP II

T REATY VS. C USTOMARY L AW  Of 4 GCs, only GC IV expressly protects civilians (other than civilians accompanying forces)  Under GC IV, greatest protection afforded to “protected persons”  AP I expands protection to all situations in IACs  United States not party to AP I but fills gaps as customary law or by policy  Less protection for civilians in NIACs generally  CA 3 applies; AP II (US not party) or CIL also fills gaps

Questions? Matthew J. Festa South Texas College of Law Dept. of Int’l and Operational Law U.S. Army Judge Advocate General’s Legal Center and School Phone