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Section 3 - Principle of distinction / combatants and direct

participation in hostilities

• Dynamic between various individuals and objects in situations of conflict

• We’re going to look at it from a certain point of view: the prisoner of war, combatant and the
notion of direct participation in hostilities

Introduction and important general points

• The only benefit to be considered as a combatant is linked to the protection you receive
when you fall in the hands of the enemy (section 4 of the course).

o If you qualify as such, it means you’ll have the status as prisoners of war!you
can’t be prosecuted for the mere fact to have participated in the hostilities, if you
have respected the rules IHL.

o Otherwise being a combatant means that you are a target and you can be
neutralized including with lethal force.

• Fundamental principle of IHL: distinction between civilians and combatants

o IHL only authorizes military actions that aims at weakening the opposing party.

o Who and what is part of this military potential?

o Who and what can be attacked?

• The dividing line between combatants and civilians has developed considerably over
time, with a trade-off between highly organised armies and less developed countries that
need to call on additional resources. In particular, militias or guerrillas.

o In the course of the last century, the world had to face many asymmetrical conflicts,
where one group had to count on the support of the combatant “who were farmers
during the day and combatants during the night.”

o Under certain circumstances official armed forces needed to be supported by groups

and individuals to maintain a certain military capacity against he enmy.

o Hague Regulation of 1899 or 107 !already in early 20th century IHL was willing to
recognize the status of combatant to those guerrilla groups meeting certain criteria.

▪ Distinctive emblem

▪ Will bear the weapons openly

▪ Who are able to respect IHL

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o ATTENTION: NOT confuse with the part of last week (qualification) !HERE:
Militia groups considered supporting the armed forces and benefiting from PoW
status

• Civilians can and will only be respected if enemy combatants can reasonably expect that those
who appear to be civilians will not attack them !

• There is no intermediate status in IHL:

o In IHL when it comes to deciding whether a person has to be considered a combatant

or a civilian, there isn’t a intermediary status: it’s either a civilian or a combatant.

o If you’re not able to be qualified as a combatant, you’re a civilian.

o There is no such thing as an unlawful combatant! Either you are a combatant or you
are not!

• Civilians:

o Definition:

▪ A civilian is anyone who isn’t a combatant.

▪ There isn’t a specific definition in IHL what a civilian is !you define it by

the negative (what it’s not).

o Meaning of being a civilian:

▪ It means that the person shouldn’t be taking part in hostilities, the person isn’t
entitled to, if she/he wants to keep the protection.

▪ The civilian participating in hostilities can be prosecuted for the mere fact
that she participated in such hostilities (even if she/he respects IHL).

o Protection:

▪ Civilians are protected when they fall into the hands of the opposing party (=
arrest, occupation...) and against the effects of hostilities.

• Combatant:
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o Definition:

▪ There isn’t a definition of combatant in the GC. We define it, by whom can be
entitled to the status of prisoner of war (PoW).

▪ Art. 4 GC III: prisoner of war

• Reference to AP I art. 43!!!

• Reference in art. 43 AP I to art. 4 GC III!!

o Meaning of being a combatant:

▪ Has the right to take part in the hostilities.

▪ A combatant participating in the hostilities, respecting the rules of IHL, can’t

be prosecuted for the acts committed during the hostilities !immunity of
combatant

▪ If the combatant falls in the hand of the enemy: protection from the status as
PoW.

o Protection:

▪ Protection of IHL, when they’re participating in hostilities.

▪ GC I and GC II: also protection, when they aren’t participating anymore in

hostilities (e.g. wounded, sick, shipwrecked)

▪ GC III: protection when they fall in the hands of the enemy !prisoners of
war.

1) International armed conflict

De ni on of combatant
• Art. 4 GC III !reference to art. 50 of AP I!

• There are the following categories (details follow):

o Members of the armed forces

o Members of armed groups “belonging to” or “responsible to” a Party to the conflict if
certain conditions are met

o Movements using guerrilla warfare under certain conditions

o Mass levée under certain conditions

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• The combatant benefits from the protection offered by the GCs, in particular the status of
prisoner of war (GC III).

• If we can’t establish that the different conditions for a person to be considered a combatant
are met, then this person immediately can’t be considered a combatant and can’t enjoy the
status of prisoner of war.

o This person needs to be considered a civilian !Civilian who has participated in the
hostilities and can be prosecuted for such participation (often the harshest penalties
apply).

• IMPORTANT: Art. 5 GC IV:

o Situation, where a civilian has participated in the hostilities. !This person should be
treated with humanity / dignity and in respect with the basic rights.

o Very important: A civilian doesn’t qualify as a prisoner of war !If the civilian has
participated in the hostilities, she/He will receive limited protection from CG IV.

o BUT: art. 5 §3 GC IV: “In each case, such persons shall nevertheless be treated with
humanity, and in case of trial, shall not be deprived of the rights of fair and regular
trial prescribed by the present Convention. They shall also be granted the full rights
and privileges of a protected person under the present Convention at the earliest date
consistent with the security of the State or Occupying Power, as the case may be.”

▪ A person can never be deprived of her/his right of a fair trial.

o Reference to art. 75 AP I !important provision!

▪ It contains some fundamental guarantees: it lists all the fundamental

guarantees that any person that is protected by GC / AP should benefit from

▪ Art. 75 is part of customary law and through custom is applicable to both,

IAC and NIAC! !Very important to complement art. 5 (small protection
granted) with a reference to art. 75 AP I!

▪ Example: right of the person to communicate with the outside world !If the
person is deprived of this right, it would be easy for her/him to go missing!

o ATTENTION: art. 5 GC should be interpreted in a restrictive manner.

• Presumptions: If there is a doubt regarding the status of the person, the status of prisoner of
war should be presumed !tribunal needs to establish whether that person is a combatant or
not!

o Example: how has a member of Al Qaida to be qualified if he’s arrested by the US armed
forces? !They need to be considered as civilians, bc they don’t meet the other conditions to
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be considered a combatant. Because it can be established that they represent a threat, Art. 5 GC
IV could apply and limitation be put to their protection under CIV.

1) Member of the armed forces

There is no doubt that they have de iure the status of prisoners of war if they fall in the hands of the
enemy (art. 4 let. A paragraph 1 !reference art. 43 §1 AP I)

Even if not recognised by the other party.

2) Member of armed groups “belonging to” or “responsible to a Party” to the conflict (art.
4 letter A, paragraph 2 GC III; Art. 43 AP I):

• ATTENTION: DON’T mix with the NIAC / IAC qualification!

• Groups that would belong / responsible to a party to the conflict if certain conditions are
met (art. 4 let. a §2 GC III, reference art. 43 AP I)

!Conditions they have to meet:

1) Be placed under a responsible authority that ensures an international disciplinary system

2) Respect IHL

3) Wear a distinctive sign that can be recognized from a certain distance (distinctive emblem)

4) Openly bearing arms

a. You can’t fake / lie about the status as a civilian / combatant !not let the other party

!what if we don’t have the elements to establish that the armed group belongs to a State party to the
conflict, what would be the status of the person if she/he falls into the enemy’s hands? !CIVILIAN!

3) Movements using guerrilla warfare under certain conditions (art. 44 §3 AP I)

• art. 44 §3 AP I !provision that isn’t in the GC III, was added in the negotiation of AP I

• Situation, where the war is so asymmetrical, that it’s difficult for the guerilla group to go
around with the emblem etc. all the time like stated by GC III

o It’s putting them in an impossible situation to respect IHL

o art. 44 §3 is bringing an opening: softening the conditions the armed group has to
meet !accept that the armed group doesn’t wear the weapons openly and the
emblems, BUT only at the time of the attack / combat
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• This provision was added for cases of occupation and movements of people liberation

o So, essentially for situations of asymmetry.

o In those cases it’s obvious that a person can’t go around with weapons and emblems

• N.B.: Art. 4 §3 AP I is one of the reasons why States aren’t ratifying AP I !It opens the
protection attached to the notion of prisoner of war to those armed groups. They shall
continue to have a responsible leader and be able to respect IHL.

4) Levée en masse under certain conditions

• The cases of levée en masse are another type of group, which can’t get prosecuted for the
mere fact, that they have participated in the hostilities.

Levée en masse = when men and women in a given situation will take spontaneously
weapons and defend their territory although they’re not organized in armed forces / as an

• There’s a spontaneous will to defend their territory and push back the aggression /act of
violence by the enemy !art. 4 let. a §6 GC III

• Other conditions: In this case they don’t need to have a head or an emblem, bc it’s
spontaneous. BUT, they have to wear the arms openly and respect IHL

o If they meet those 2 conditions, and they fall into the hand of the enemy, they will
have the protection of prisoners of war.

Denial of combatant status

There are cases of persons participating in hostilities that are systematically denied the status of
prisoners of war !There are different categories who can’t meet the conditions to be a combatant:
1) Groups not belonging to a party

a. The group must have a link with one of the states involved in the conflict.

b. When you can’t prove that link they cannot entern in the categories combatant/PoW

2) Groups not meeting the conditions

a. Openly bearing arms, responsible command (a head), distinctive sign, respect for IHL

3) Mercenaries

a. “An individual whose voluntary and personal commitment to an AF involves an

element of foreignness and profit.”

!= Any person whose involvement in the conflict is based on two elements:

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i. Foreign element !the person is foreign / stranger to the conflict (doesn’t

have the nationality / not nationally linked to any party to the conflict)

ii. The element of cash !The person does it for a financial purpose

b. Definition in art. 47 AP I

i. Adds a number of conditions that make it difficult to establish.

ii. §2 let. c: this is the type of evidence which is impossible to establish in nearly
every case !this provision is nearly useless!

c. Privatisation of war: foreign fighters, private security companies (cf. details on the
next page).

4) Spies (art. 46 AP I)

a. Already included in the 1899/1907 Hague Regulations

b. Definition: A person who secretly or under a false identity seeks information with
intention of communicating it to the enemy

c. Element of deception

d. IHL doesn’t prohibit to recourse to spies !It says, that if you are caught while
spying, you’ll lose the status of prisoners of war and can be prosecuted for your
activities as a spy !application of art. 5 GC IV (threat to the state)

i. But if the person doesn’t get caught and is able to go back to his/her camp, he/
she continues to benefit from the regime of combatant/prisoner of war.

5) Deserters?

a. Definition: Member of an armed group who would voluntary surrender to the enemy
force.

i. Clearly fits the criteria of art. 4 let. a §1 GC I !should have the status of
prisoner of war

ii. Problematic: it allows the party that detains you to keep you away from the
conflict for the duration of the conflict. !they have surrendered and are not a
threat anymore !Do we need to keep them under the status of prisoners of
war?
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1. Part of the doctrine says they should be considered as civilians

!they don’t represent a threat anymore !fall underneath GC IV
(protection is more extended) !you can’t detain on administrative
basis a civilian if the civilian doesn’t represent a clear threat to you.

b. Can also argue, that it’s a member of an armed group !in that case, the detention
is possible as long as hostilities go on etc. !would also to be considered correct.

c. In first gulf war several Iraqis surrendered to coalition force

!Those cases fall under GC IV, GC III doesn’t apply !Limitation in the rights, but always the
right to fundamental guarantees found in art. 5 GC IV and 75 AP I

Case Study: Privatisation of war in particular:

!Under what paradigm do we have to regulate the behaviour of private military and security
companies which operate in war zones?
• Foreign fighters: civilians participating in hostilities with all the consequences attached to
this !but sometimes they’re incorporated in armed groups in a NIAC, possible with IAC too,
when associated with a party to a conflict.

• Private military & security companies: These companies are private and are there to make
profit !the accountability required by IHL isn’t present in their decision-taking

o Often they’re incorporated in a country, hired by another country and they’re

deploying their activities in a third country.

o You can see the problem in terms of accountability !if a member of this companies
commits crimes, to whom are they accountable and where will they be tried?

o If they’re not fully integrated in the armed forces as an organ of the state, well
then, they will be considered as civilians participating in hostilities !they can be
prosecuted !they shouldn’t become a party to the conflict, when they’re engaging in
a warzone. But we all know they do and are often very active in term of military
operation.

o It’s important that the country have the right legislation to ensure that they are
accountable.

o Code of conduct !the idea is that States are encouraging these companies to show to
the state that the internal accountability respects IHL.

• Example: Group Wagner used to be a company (private military and security company)
!privatisation of warfare

• Montreux document (2008): Explains what the obligations of the States are.
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o Making sure that there is no loophole and ensure that these companies are bound to
IHL.

o If the company participates in hostilities and are not incorporated in the State, they
can become target in the case of conflict and they don’t enjoy the protection given to
prisoners of war.

2) Civilians taking part in hostilities – direct participation in hostilities

• Very important notion, both in NIAC and IAC.

o Attention: In NIAC there are no combatants and no prisoners of war! Only civilians!

• Art. 51 §3 AP I: protection of the civilian population

o Very important provision!

o Principle: Civilian population should be kept away from conflict and can’t be
targeted !if targeted, it’s a war crime

Exception: unless and for such time they take a direct part in hostilities

!we could interpret this provision in a several number of ways:

▪ Revolving-door-theory: a civilian can take part in hostilities as many times

as he/she wants in his/her life !The civilians would lose their protection
(not being a target) only for the time they’re participating in the
hostilities! Otherwise they’re protected !limits the possibility of the States
to neutralize those civilians!

▪ Other theory (once a civilian participating in hostilities always a civilian

participating in hostilities): As soon as a civilian participates in hostilities,
he/she loses the civilian status !even if the person is absolutely defenceless,
unarmed etc. !once you touch the weapons, you lose the protection !this
interpretation is supported by States who support strong military action and
will often justify their attacks against civilian for security reason

▪ In-between-theory (continous combat function): it is reasonable to make a

civilian lose his/her protection as long as he/she is regularly part of an armed
group / combat action!

• See ICRC interpretative guide on the notion of direct participation in hostilities

o The notion of taking direct part in hostilities raised so many challenges between the
experts, that the ICRC felt compelled to organize a group of experts. !The ICRC
wrote an interpretative guide!
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o 10 rules for which there are various comments what these rules are.

▪ Rules explaining what the notion of participation is (rules 1 to 3)

▪ Rules explaining the nature of the acts that need to be committed in order to
consider that a civilian took part in hostilities (rules 4 to 6)

▪ Rules explaining the type of violence that can be used against this person
(rules 7 to 10)

Clarification of the concept of civilians in AC in particular:

!This first group of rules is considering the notion of participation.
• Civilians lose their protection if they take part in hostilities

• Member of armed forces (obvious)

• Member of armed groups: Function continues to take part in hostilities (rules I and II).

• Individual per se: the person has a continuous combat function within a given armed group

o During the time the person has this function, she/he would lose the protection as
civilian !If no continuous combat function, the loss of protection is only for the
duration of the participation.

Components of the DPH:

!After the identification of the individual, the type of action of this same individual must be
qualified. !Only some specific actions need to be considered as components of the DPH.
!3 elements need to be established (Rule 5):
1) Level of harm: The act must be harmful.

a. = the act in question must effect the military’s capacity of the other party or be
likely to cause death or destruction.

b. Example: cutting off supply wouldn’t be sufficient in order to considered that this is
an DPH!

2) Direct causal relationship: There must be a link between the act of the civilian and the
caused damages.

a. Examples:

i. Drone attack: There are several technicians involved in the attack !They’re not part
of the armed forces, but they have continuous combat functions and are responsible
for the launching of the drone attack. Could be consider as civilians participating in
hostilities
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ii. The conclusion for a driver carrying ammunition to the combat zone would probably
be different from the conclusion for the driver unloading a boat with ammunition and
bringing it to a storage place !The second driver shouldn’t be considered as a
civilian taking direct part in hostilities. This situation misses the causal link, bc it’s
too far away from the combat zone.

Extract from the ICRC guide: For example, beyond the killing and wounding of military personnel and the
causation of physical or functional damage to military objects, the military operations or military capacity of a
party to the conflict can be adversely affected by sabotage and other armed or unarmed activities restricting or
disturbing deployments, logistics and communications. Adverse effects may also arise from capturing or otherwise
establishing or exercising control over military personnel, objects and territory to the detriment of the adversary.
For instance, denying the adversary the military use of certain objects, equipment and territory, guarding captured
military personnel of the adversary to prevent them being forcibly liberated (as opposed to exercising authority
over them), and clearing mines placed by the adversary would reach the required threshold of harm. Electronic
interference with military computer networks could also suffice, whether through computer network attacks or
computer network exploitation, as well as wiretapping the adversary’s high command or transmitting tactical
targeting information for an attack.

On voluntary human shield: : The same logic applies to civilians attempting to shield a military objective by their
presence as persons entitled to protection against direct attack (voluntary human shields). Where civilians
voluntarily and deliberately position themselves to create a physical obstacle to military operations of a party to
the conflict, they could directly cause the threshold of harm required for a qualification as direct participation in
hostilities. This scenario may become particularly relevant in ground operations, such as in urban environments,
where civilians may attempt to give physical cover to fighting personnel supported by them or to inhibit the
movement of opposing infantry troops.

3) Intention / belligerent link = designed to cause damage

a. There was an intent by the civilian to cause the damage.

It is therefore important to distinguish direct participation in hostilities – which is specifically designed to support a
party to an armed conflict against another – from violent forms of civil unrest, the primary purpose of which is to
express dissatisfaction with the territorial or detaining authorities.

What force is used against a civilian taking part in hostilities (rules IX and X)?
• Once you have established that you are in a situation where a civilian is participating in
hostilities, you must establish the type of violence can be used. !This can depend on the
threat the person represents at the time.

• Rule 9: principle of necessity (do whatever is necessary to neutralize the enemy but not do
more than is required) !if you can neutralize the person without killing the person, you
don’t kill her.
Ruel 9 reads as follows:
In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare,
and without prejudice to further restrictions that may arise under other applicable branches of international law,
the kind and degree of force which is permissible against persons not entitled to protection against direct attack
must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing
circumstances.
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ICRC interpretative guide:

Today, the principle of military necessity is generally recognized to permit “only that degree
and kind of force, not otherwise prohibited by the law of armed conflict, that is required in
order to achieve the legitimate purpose of the conflict, namely the complete or partial
submission of the enemy at the earliest possible moment with the minimum expenditure of life
and resources”. Complementing and implicit in the principle of military necessity is the
principle of humanity, which “forbids the infliction of suffering, injury or destruction not
actually necessary for the accomplishment of legitimate military purposes”. In conjunction,
the principles of military necessity and of humanity reduce the sum total of permissible
military action from that which does not expressly prohibit to that which is actually necessary
for the accomplishment of a legitimate military purpose in the prevailing circumstances.

…
In sum, while operating forces can hardly be required to take additional risks for themselves
or the civilian population in order to capture an armed adversary alive, it would defy basic
notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to
surrender where there manifestly is no necessity for the use of lethal force. In such situations,
the principles of military necessity and of humanity play an important role in determining the
kind and degree of permissible force against legitimate military targets.

3) NIAC
• Art. 3 common to the 4 GCs

• Art. 4 to 6 of AP II

• No combatants and no POW status !Consequence: no combatant immunity

o Important: in the case of NIAC you don’t have the notion of combatant !Therefore
you don’t have POW status and no combatant immunity !the person can be
prosecuted for the fact to have participated in hostilities even with full respect of
IHL!

o Those who aren’t considered being part of the armed forces, have to be considered
civilians! !IHL doesn’t prevent those civilians from getting prosecuted and
being exposed to the strongest punishment !but ensures that the basic
guarantees are secured.

• See Art. 6(5) PA2

o Encourages the authorities to grant amnesty to persons who have participated to

the AC !if you are a detainee for the sole reason that you are from the other side,
gvt should consider giving you amnesty! !it’s a form of transitional justice (bears an
impact to be able to peacefully live together after the conflict)
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o There is an encouragement to provide immunity to those who fought in full respect

with IHL!

o IHL is very pragmatic and realistic !once the war is over, you will have to co-exist,
so you should be thinking to giving amnesty to the persons who have respected IHL
and didn’t commit war crimes and were on the other side

▪ If you commit serious violations of IHL, you can absolutely be prosecuted for
those violations even in NIAC today

• Since 1995, serious violations of IHL have entailed individual criminal responsibility in
NIAC (Tadic Case rendered by the Appeals Chamber of the ICTY).

4) Fictional case

On or around 01 May 2011 the United States of America carried out an operation on Pakistani territory
against a suspected extremely dangerous terrorist. The operation was carried out by elite American
units. It resulted in the deaths of three men who were accompanying the terrorist, as well as the
terrorist himself. Two women were injured in the operation. No members of the US elite team were
injured. According to various reliable sources of information, the order given was to take the
dangerous terrorist alive as long as he offered no resistance. It would appear that, at the time of the
incident, the terrorist was in civilian clothes and unarmed.
This operation was carried out because of the terrorist's alleged links with highly dangerous groups
and networks in Afghanistan that the United States is fighting in its global war on terrorism.

!QUESTIONS :
• Is there an international armed conflict?

• Is there a non-international armed conflict? If so, where and between whom?

• What status do terrorists have under IHL? A civilian? Combatant? Intermediate? No status?
Terrorist?

• Would he be entitled to POW status?

• What rules on the use of force would be applicable in this case?

• QUESTION ONE: Is there an international armed conflict?

o Qualification: Is there an IAC? Are there 2 states in action?

▪ Use of force by USA on the territory of Pakistan

▪ Is there a conflict? !depends on whether Pakistan gave consent !if Pakistan

doesn’t give consent ! IAC.
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▪ Solution: there is an IAC, because Pakistan hasn’t given consent. But could
also argue the other way around (e.g. Pakistan hasn’t expressed any type of
disagreement)

• QUESTION TWO: Is there a NIAC? If so, where and between whom?

o Is there a NIAC between USA and this terrorist group? What are the criteria for non-
state armed groups?

▪ Common structure

▪ Capacity to respect IHL.

o Level of violence / duration of violence?

▪ In casu: criteria of level of violence is sufficient

• QUESTION 3 What status do terrorists have under IHL? A civilian? Combatant?
Intermediate? No status? Terrorist?
o Terrorist is not a qualification under IHL, in IHL there are either combatants or
civilians.
o If we are in NIAC, there are no combatants (therefor no POW status)
o So how do they need to be qualified here? !As civilians
o But are these normal civilians (who enjoy full privileges of IHL) or civilians that are
participating in hostilities? What do we need to check?
o Continuous combat function: What type of force (rule 9 ICRC guideline)? Use of
force needs to be according to the necessity principle, the use of force should be the
least, if you can avoid to kill you just injure eg, Was he armed? Was he a threat at the
time? ! Civilian loses the protection of IHL if he poses an active threat Civilian loses
the protection of IHL if he poses an active threat – rule 6 of the ICRC guidelines
(“Civilian loss of protection from attack”)

o Example Taliban 2001 ! in power, were the government !coalition arrived (led by
US) !Taliban were the official armed forces !They were combatants with full status
of POW !then change in the government (they lost), but they continued to fight, so it
became a NIAC and the Taliban became civilians participating in hostilities ! the
qualification of a situation can change and the status of the “combatant” can change
also!
o Civilian participating in hostilities: can be prosecuted (whereas combatants can’t)
!Status of civilians participating in hostilities isn’t good
o If you’re connected to an armed group, the fact that you’re unarmed doesn’t change
the fact that he has a continuous combat function bc of his connection to the non-state
AG. !The fact that he’s unarmed has an influence on the type of force you can use to
neutralize him !violating IHL (principle of necessity etc.).
o If it would be a conflict between US & Pakistan: IAC !If Pakistan doesn’t give
consent.
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▪ As soon as you have the use of force from a State against another State:
Armed conflict

▪ Consent: accepting that another State is using force on their territory !Then
the use of force is accepted and it’s not an AC !but if you haven’t this
agreement, its an IAC.
o If it would be an AC between US & armed group: NIAC

▪ NIAC: the use of force isn’t sufficient: we also need a level of violence /
duration of violence.

▪ The threshold is higher !States should have the full control over their
territory (sovereignty).
• What type of force?
o ICRC-Interpretative Guidelines: rule 9 !The use of force needs to be proportionate
!Use of force should be the least you can use to obtain the maximum effect !if
youcan avoid to kill, you injure. If you can avoid to injure, you arrest.
• IHL may apply, probably NIAC, terrorist is not a civilian with full protection but a civilian
with continuous combat function and therefore a civilian participating in hostilities.
o In that case, a civilian can be targeted bc participating in hostilities

(see also separate document on the moodle)

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Section III - EXERCISES

A. What is the qualification of each of the following situations? (International

armed conflict, non-international armed conflict, internationalized internal
armed conflict, internal disturbances, other situation of violence?)

B. What are the rules of law that apply in the following situations?

C. What is the status of a person captured in relation with the following

situations?

1. DRC, In August 1998, war broke out between the government in Kinshasa and
rebels in the Eastern part of DRC. Angola, Namibia and Zimbabwe sent troops to
support the Congolese government, and Uganda, Rwanda and Burundi sent troops
to support the Congolese rebels.

➔ NIAC between DRC and rebels! common art. 3 and protocol 2 (if ratified, if
between armed forces and armed groups and if the AG has territorial control).
Human rights also applicable and customary law

➔ NIAC between DRC + Angola, Namibia and Zimbabwe VS rebel group

➔ IAC between DRC and Uganda, Rwanda, Burundi! Geneva Conventions and
Protocol 1 (if ratified). Human rights also applicable and customary law

➔ IAC between Angola, Namibia, Zimbabwe VS Uganda, Rwanda, Burundi

➔ When you have states intervening on the same side of the state, so DRC, that
doesn't change anything in the nature of the conflict. Then other states
intervening on the side of the rebels can change the situation. If they are
parties to the conflict. You have to check boots on the ground, are taking part
in hostilities. If they intervene on the side of the AG, then IAC. So there is IAC
DRC vs Uganda, Rwanda, Burundi. Check whether the acts of the AG are not
attributable to one of the states, therefore test of global control, then
internationalisation, NIAC becomes IAC.

2. YEMEN, On November 03 2002, a missile fired by an unmanned U.S. aircraft

(drone) has killed six alleged members of Osama bin Laden's al Qaeda network in
Yemen , including a key suspect in an attack on a U.S. warship two years ago,
according to an U.S. official.

➔ Military use in another country automatically triggers an armed conflict unless

the country concerned consents. If in this example Yemen does not consent to
the use of a missile on its territory! IAC between USA and Yemen. Applicable
law 4 GC and customary law.

➔ NIAC ? duration + intensity + armed group! organisation with a responsible

command, able to enforce IHL ? the AL-Quaida network does not have the
level to be considered as a AG.
 17

➔ Could be OSV then it's human rights law that applies. You have to notify
before you shoot. If you are not in a conflict, the level of force a state can use
is less. Normally the use of lethal force requires prior notification (see UN
Principles on the Use of Force by Law Enforcement Officials).

➔ Targeted killings, read case law on Moodle

3. RUSSIA, January 26, 2004 (Reuters) - "A rebel attack on a Russian military
convoy killed four servicemen and injured a further four on Monday as a U.N. envoy
began new talks on conditions in and around the turbulent region. The attack was
typical of the daily harassment to which Russia's estimated 60,000 servicemen are
subjected despite Moscow's assurances that Chechnya is under its control and the
"fight against international terrorism" is nearly complete."

➔ It is not an IAC because Chechnya is not a country.

➔ NIAC! Is there an armed group? Possible, because there are 60,000 men
involved, so we can deduce that there is an organised force on the other side,
for a certain length of time. Common Art. 3 and Prot II if ratified by Russia and
if territory controlled by AG.

➔ We could conclude that there is a NIAC between Russia and the Chechen AG
- which, by the way, is absolutely not recognised by Russia.

4. SPAIN, March 12, 2004 (Reuters) - "Spain said on Friday the death toll rose to 198
from a series of bombings on packed commuter trains on Thursday, and that 1,430
people were wounded. The Spanish government said it believed armed Basque
separatist group ETA was most likely to blame for the simultaneous bombings of four
trains at Madrid stations. However officials are also looking into possible Muslim
militant involvement, after a claim purporting to come from a group aligned with al
Qaeda claimed responsibility for the attacks." ! NIAC? or internal disturbances?

➔ This is not an IAC, there are not two states.

➔ NIAC ? armed group (conditions, in this case ETA organisation and command
fulfilled) + intensity + duration ?

o Spain against ETA! time too short.! is not a NIAC, so human rights
must be applied. Spain must therefore apply human rights.

o Beware of untimely qualifications and their consequences

5. AFGHANISTAN, September 9, 2006 (The Economist) - "On September 2nd,

Canadian troops serving under NATO in Afghanistan, supported by their British,
Dutch and American allies and Afghan troops, launched the alliance's biggest-ever
land attack, against 1,000 Taliban fighters in Panjwayi district, southern Kandahar
province. In several days of pitched battle, over 300 militants and five Canadians
were reported killed, including one by American friendly fire. In next-door Helmand
 18

province and in Kabul, over roughly the same period, five British soldiers were killed
by Taliban attacks and 14 in a plane crash."

Nov 2001 authorisation by the US Security Council to use force to bring down the
Taliban regime in Afghanistan! IAC. If Taliban fall into US hands, combatants will be
given POW status. June 2002, Taliban lose, leave Karzai government set up by the
Americans. Many AG in conflict with Karzai and US, it's a NIAC. 2006, Afghans on
one side with US and co. Who fight against the Taliban, become AG, NIAC art. 3 and
Prot II if ratified by Afghanistan and if control of the territory by the Taliban.

➔ Attack on Afghanistan by the coalition! the Taliban were in power! the

Taliban have fallen. ! They went from being a government to an armed
group.

➔ Afghan government supported by the coalition forces fighting the Taliban.

➔ NIAC: because there are not two states, the Taliban are an armed group

o Duration of conflict: 2001-2006! duration speaks for itself! just one of

the 2 criteria (intensity and duration) is enough to say that we are in a
NIAC. Most of the time both are there

o Intensity of violence: 1,000 Taliban, more than 300 dead

o The Taliban are an armed group )! responsible leadership,

organisation and the ability to enforce IHL

6. LEBANON, September 27, 2006 (The International Herald Tribune) - "The UN

resolution, adopted about six weeks ago, put an end to 34 days of fighting between
Hezbollah and Israel that included the Israeli bombing of southern Beirut and about
4,000 Hezbollah rockets fired on the cities of northern Israel." C.F above in the notes
to see the answer. (see previous lesson)

!possible IAC between Lebanon and Israel: missiles sent by Israel, not authorised.
NIAC possible between Hezbollah and Israel, organisation, ability to respect IHL +
duration + intensity. The question also arises of the link between Hezbollah and the
Lebanese gvt, is it imputable? Then check the overall control of the Lebanese
government over Hezbollah.

7. IRAQ, October 17, 2006 (The Associated Press) - "U.S. forces patrolled the streets
of the predominantly Shiite city of Balad on Tuesday after five days of sectarian
slaughter killed 95 people, violence that surged out of control despite the efforts of
Iraq's best-trained soldiers. Iraq's 4th Army took command of the region north of
Baghdad a month ago, but had been unable to stem recent attacks in Balad, where
the slayings of 17 Shiite Muslim workers on Friday set off revenge killings by Shiites.
(...) The police commander said gunmen wearing black uniforms, trademark clothing
of Shiite militiamen, had clashed with residents of Duluiyah, a predominantly Sunni
city on the east bank of the Tigris, opposite Balad."
 19

The Americans arrived in 2003, against the regime in place, so IAC.

Then always violence on territory, coalition on the gvt side, NIAC.

2006 US troops and co. on gvt side and fighting against AG.

We have American external forces supporting the Iraqi army, fighting against the
various AG. NIAC needs AG: necessity to show an organisation capable of
command.

➔ Inter-sectarian violence

➔ Allied forces working with government forces! Government forces come into
conflict with Shiite militias

o In this conflict there are not two states = no IAC

o Are the militias armed groups? We need to check the criteria and if we
answer in the affirmative for all of them, then the militias are armed
groups (don't stop at the qualification of militias).

o Duration?! Violence has existed for at least 2 years.

o Intensity?! yes, several deaths

o Common Art. 3 (customary law) and Additional Protocol 2 if ratified and

if territory controlled by AG

➔ It's a NIAC

8. SUDAN, October 24, 2006 (The International Herald Tribune) - "Rebel groups
(there have been at least half a dozen factions since the conflict began) occupy
villages, which the government attacks by air with Antonov bombers and helicopter
gunships. (...) The government has used Arab militias, known locally as the
janjaweed, as ground troops in Darfur, paying them in cash and loot stolen from the
villages they raid." October 28, 2006 (The Associated Press) - "Both countries are
being used by rebel groups as rear bases for destabilizing activities in both Chad and
Sudan's volatile western Darfur region.

➔ It is not a IAC because there are not 2 states

➔ The government is in conflict with a number of armed groups (the criteria for
recognising them as armed groups under IHL must be checked). If the criteria
are met, the conflict is NIAC. The criteria of intensity and duration are also
met.

➔ The Sudanese government is supported by an armed Janjaweed group,

o If Sudan has overall control over the Janjaweed (if they are an AG) then
the crimes committed by the Janjaweed would be attributable to Sudan.
 20

➔ Are we in the presence of an organised group with a responsible command

capable of respecting IHL? YES

➔ The rebels really must be held accountable for their actions,

➔ and global control is absolutely essential to make Sudan responsible

remember: if there is a NIAC between 2 armed groups! only common article 3

applies because protocol 2 applies only if there is a State and an armed group (which
has control of part of the territory).

SUMMARY OF THE FICTITIOUS CASE

Steps to follow

1) Necessity of qualification.
a. Is there a IAC?
• Between Pakistan and the US?
• Examina on of the ques on as a whole. Statement gives no indica on that
Pakistan has contested in any way. Possible to conclude in the nega ve.
b. Is there a NIAC?
• Possible existence of a NIAC in Afghanistan between the Afghan government,
supported by the interna onal community, and opposi on groups (Taliban, Al
Quaeda, terrorist network).
• Importance of focusing on the status of the armed group (does it have the
characteris cs required by IHL? (organised, command structure, capable of
complying with IHL and, in the case of AP II, control of part of the territory?)
• It is possible to conclude in the a rma ve for some of the groups men oned
above.
• It is possible that the con ict will have an impact beyond Afghanistan's
borders.
• Even if geographically remote, such an event can s ll be considered to be part
of the 'ba le eld'. In par cular, examine the level of intensity and the nexus
between the event in ques on and the NIAC (if there is no nexus, the event
will have to be examined under the provisions of ordinary law).
c. Examina on of the opera on itself
• NIAC began with the argument of self-defence against Al Queda and the
Taliban
• The opera on was carried out to neutralise a person who had - at least - at
some point carried out hos le acts aimed at fomen ng/inci ng members of
armed opposi on groups to take up arms against each other.
• Rules on the use of force
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 21

DETERMINING PARTICIPATION IN HOSTILITIES

LINK WITH AN ARMED GROUP IF NO LINK WITH A GROUP
ARMÉ
Continuous combat func on Direct No
participation
one-off
Legitimate target Legitimate target Rules applicable
to the use of
force
(law and order)
Analysis of the force that can be Analysis of Possibility of
used in the light of R. IX of the force using force in
interpreta ve principles (cannot which can be self-defence;
exceed what is necessary to achieve used i n light of against a
the objec ve pursued) R. IX of the danger of death
interpretative imminent; to
principles avoid the
interpreta ve the commission
principles (may of a crime and
not exceed when other
what is measures are
necessary to not enough
achieve the
objective
pursued)
ti
ti
ti
ti