International Humanitarian Law & Human Rights, SS 2010, Alexander Breitegger Session 2: Protection of Persons, IHL and HRL 25/03/11, 5 pm, U13 Course materials: Wien

Protection of Persons in Armed Conflict Fundamental protection to persons irrespective of status under IHL: common Art. 3, GCs; Art. 75, API; Arts. 4, 6, APII Commonalities with HRL

Fundamental Guarantees Common Art. 3: „minimum yardstick“ also for IAC (Nicaragua) 1) Overarching principle: humane treatment without distinction a-d) Acts prohibited: a-c) Against life, physical and mental integrity (esp. Murder, torture and cruel, humiliating and degrading treatment) d) Minimum due process standards if criminal prosecutions HRL: Arts. 3, 5, 10 UDHR; Arts. 6, 7, 14 ICCPR; CAT

Fundamental Guarantees Art. 75 (1) API: humane treatment without adverse distinction, minimum protection Art. 75 (2) API: certain prohibited acts, including murder, torture, taking of hostages, collective punishments Art. 75 (3) API: minimum standards against arbitrary detention → no explicit right of review; HRL: Art. 9 ICCPR Art. 75 (4) API: minimum standards of due process, criminal prosecutions → HRL: Art. 14 ICCPR

Humane Treatment in NIAC c. Art. 3 GCs: nothing on review of detention Art. 4 (1) APII: humane treatment without distinction Art. 4 (2) APII: certain prohibited treatment Art. 5 APII: preventive security detention possible but no right to review specified Art. 6 APII: minimum due process standards if prosecution

Categories of Persons in IAC: special rules of IHL A) Combatants (GC III, API) Right of combatant: No prosecution for merely fighting legitimate military objective, i.e. may be lawfully targeted B) Civilians (GC IV, API) Can be prosecuted if they fight No legitimate target unless direct participation in hostilities (specific act likely to cause military harm to adversary or civilian harm, linked to specific military operation, linked with AC)

NIAC No combatant status because states will not forfeit their right to prosecute those rebelling against the state! Protections for those not or no longer directly/actively participating in hostilities: humane treatment (c. Art. 3, APII) and no legitimate target

Combatants, POWs Combatants: member of armed forces Def. Armed Forces: Art. 4A (1), GC III: de jure armed forces Art. 4A (2), GC III: other militias de facto belonging to State Art. 43 (1) API: “The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party.“ Members of armed forces = combatant under Art. 43(2) API POW: captured combatant (Art. 4A GCIII, Art. 44, API)

Combatants Art. 4A (1), GCIII: regular combatants Art. 4A (2), GCIII: irregular combatants, additional criteria: (a) command by a person responsible for its subordinates; (b) fixed distinctive sign recognizable at a distance; (c) carrying arms openly; (d) conduct of operations in accordance with laws and customs of war. Art. 4A (3), GCIII: also valid for members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power

Combatants in IAC Art. 4A(2) GCIII: (a) command by a person responsible for its subordinates; (b) fixed distinctive sign recognizable at a distance; (c) carrying arms openly; (d) conduct of operations in accordance with laws and customs of war. Arts. 43 (1), 44 (2) (3) API: Requirements also for „regular combatants“ Also command responsible for subordinates and internal disciplinary system; Distinction: only in attack or preparatory military operation; Carrying arms openly only alternatively if distinction not possible; All combatants obligation to comply with IHL

Doubt whether POW Art. 5 (2) GCIII: protection as POW until status determination by competent tribunal Art. 45 API: presumption of POW status if person claims to have status or if he/she appears to be entitled to such status

Civilians in IAC negative definitions: Art. 4(4) GCIV: GCIV does not cover anyone protected by GCI-III Arts. 4 (3), GCIV: general protection to certain groups of civilians irrespective of their nationality Art. 4 (1)(2) GCIV: scope of „protected persons“, protection of civilians dependent on nationality!

Protected Civilians under GCIV Art. 4 (1) GCIV: „Persons protected by the Convention are those who […] find themselves, in case of conflict or occcupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.“ Protected in principle: nationals of party to AC state A in territory under control of belligerent state B; nationals of state A in territory of their own state occupied by state B.

Protected Civilians under GCIV: Exceptions Nationals of detaining Power Nationals of co- belligerent state Nationals of neutral state In the territory of a belligerent state NO (normal diplomatic representati on) NO (normal diplomatic representati on) In occupied territory NO (diplomatic representati on) YES (dipl. repr. not functional)

POWs, GC III: Captivity POW: presumption that ongoing security risk to adversary; no habeas corpus End of captivity: release and repatriation without delay after the cessation of active hostilities (Art. 118, GCIII) In case of criminal proceedings: until end of proceedings, if necessary, completion of punishment (Art. 119 (5), GCIII)

POWs: Due Process Arts. 84 (2), 105, GCIII: must be tried by a court which offers essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which affords the accused the rights and means of defence provided for in Article 105.“ (similar to c. Art. 3, 75 API, 4 APII, 14 ICCPR) Art. 102, GCIII: valid sentence only if pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power. Art. 103, GCIII: confinement awaiting trial not > 3 months Art. 106, GCIII: same rights of appeal or petition as the armed forces of the Detaining Power

Detention of Protected Civilians In contrast to POWs: only if absolutely necessary for security of detaining power / necessary for imperative security reasons (Arts. 42, 78 GCIV) right to appeal against initial internment decision (court or admin. body: Arts. 43, 78 GCIV) right to periodic review (Arts. 43, 78 GCIV) Absolute end: Art. 133 as equivalent to Arts. 118, 119 (5) GCIII)

Due Process of Protected Persons Arts , 126 GCIV: especially defence rights similar to POWs (Art. 72 GCIV equivalent to Art. 105 GCIII).

Derogation under GCIV? Art. 5 GC IV: where protected person definitely suspected of or engaged in activities hostile to the security of a State, State party may derogate from such rights as prejudicial to State security Primarily rights of correspondence But Art. 5 (3) GC IV: humane treatment and due process standards non-derogable!

Challenges by „War on Terror“ US Military Commission Act 2009: still endorses sweeping application of IHL to „War on Terror“ Purposeful and material supporting hostilities; membership in al Qaeda; conspiracy sufficient for prosecution Composition and Convening authority by SoD Certain improvements: review procedures; MCs in MCA 2009 Controversy over extraterritorial application of HRL; relevant for possibility to review detention