Lucianna Thuo

1
 Structure of Presentation

 Introduction
 Legal distinction between combatants and civilians
 Right and duties of combatants and civilians
 Obligation to distinguish
 ICRC Interpretative Guide on the Notion of Direct Participation
 Consequences of participation in hostilities
 While in the conduct of hostilities
 Once in enemy hands
 Challenge of civilianisation of conflict
 Belligerent reprisals
 Introduction

 The basic axiom underlying IHL, i.e. that even in an armed con-
flict the only acceptable action is to weaken the military poten-
tial of the enemy, implies that IHL has to define who that po-
tential is deemed to comprise and who, therefore, may be at-
tacked and participate directly in the hostilities, but may not be
punished for such participation under ordinary domestic law
 Under the principle of distinction, all involved in the armed
conflict must distinguish between combatants and civilians.
Combatants must distinguish themselves (i.e., allow their ene-
mies to identify them) from all other persons (civilians), who
may not be attacked nor directly participate in the hostilities.
 Introduction

The IHL of non-international armed conflicts does not
even refer explicitly to the concept of combatants,
mainly because States do not want to confer on any-
one the right to fight government forces.
Nevertheless, in such conflicts as well, a distinction
must exist if IHL is to be respected: civilians can and
will only be respected if government soldiers and
rebel fighters can expect those looking like civilians
not to attack them.
 Challenges to distinction

 Civilianisation of armed conflict
 The involvement of private military and security companies in many
conflicts.
 Ethnic cleansing: By its nature, ethnic cleansing requires an attack on
members of a particular ethnic group rather than combatants.
 The aim of fighting: If the aim of fighting is not to overcome an en-
emy but economic gain, it will of necessity involve attacks on civil-
ians through looting or control of certain economic sectors.
 Where the goal is to change the regime of the state without defeating
the military or overpowering the state, there might be a temptation to
use the civilian population to overthrow the government, e.g. using
starvation techniques.
 Legal distinction
Combatants  Civilians
1. Are members of the armed forces Are all persons who are not combatants

Have a right to participate in hostilit- Have no right to participate in hostilities

2. ies though unlawful combatant unknown to

IHL

3. Protected when they are hors de com- Always protected unless and for such time
bat and from certain means and as they directly participate in hostilities
methods of warfare

4. Cannot be prosecuted for acts carried Can be criminally prosecuted under do-
out in accordance with IHL mestic law for participating in hostilities
 
 Is there an intermediate category between combatants and ci-
vilians e.g. “unlawful combatant”?
 – in the conduct of hostilities?
 – in enemy hands?
Israel, Detention of Unlawful
Combatants, para 12

In Public Committee against Torture in Israel v. Govern-
ment of Israel, it was held that the term ‘unlawful com-
batants’ does not constitute a separate category but is
a sub-category of ‘civilians’ recognized by interna-
tional law [See Case No 136, Israel, The Targeted
Killings Case]. This conclusion is based on the ap-
proach of customary international law, according to
which the category of ‘civilians’ includes everyone
who is not a ‘combatant.’ We are therefore dealing
with a negative definition. […]
Israel, Detention of Unlawful
Combatants, para 12

 In this context, two additional points should be made:
first, the finding that ‘unlawful combatants’ belong to
the category of ‘civilians’ in international law is consist-
ent with the official interpretation of the Geneva Con-
ventions, according to which in an armed conflict or a
state of occupation, every person who finds himself in
the hands of the opposing party is entitled to a certain
status under international humanitarian law – a pris-
oner of war status which is governed by the Third
Geneva Convention or a protected civilian status which
is governed by the Fourth Geneva Convention […].
Israel, Detention of Unlawful
Combatants, para 12

 Further to our finding that ‘unlawful combatants’ are members of the
category of ‘civilians’ from the viewpoint of international law, it
should be noted that this court has held in the past that international
humanitarian law does not grant ‘unlawful combatants’ the same
degree of protection to which innocent civilians are entitled, and that
in this respect there is a difference from the viewpoint of the rules of
international law between ‘civilians’ who are not ‘unlawful combat-
ants’ and ‘civilians’ who are ‘unlawful combatants.’ […]. … the sig-
nificance of this is that someone who is an ‘unlawful combatant’ is
subject to the Fourth Geneva Convention, but according to the provi-
sions of the aforesaid convention it is possible to apply various re-
strictions to them and inter alia to detain them when they represent a
threat to the security of the state.
 Obligation to distinguish

Art 48 API
In order to ensure basic respect for and protec-
tion of the civilian population and civilian ob-
jects, the Parties to the conflict shall at all
times distinguish between the civilian popula-
tion and combatants and between civilian ob-
jects and military objectives and accordingly
shall direct their operations only against mil-
itary objectives
 Obligation to distinguish

 Rule 1 CIHL. The parties to the conflict must at all times dis-
tinguish between civilians and combatants. Attacks may only
be directed against combatants. Attacks must not be directed
against civilians.
 State practice establishes this rule as a norm of customary in-
ternational law applicable in both international and non-inter-
national armed conflicts.
 Rule 7 CIHL. The parties to the conflict must at all times dis-
tinguish between civilian objects and military objectives. At-
tacks may only be directed against military objectives. At-
tacks must not be directed against civilian objects.
 
 Case No. 283, ECHR, Khatsiyeva v. Russia Application no.
5108/02) [Paras 132-138]
 Who is a combatant?
Art 4 A(1) GCIII

Member of the AF of a party to IAC
Members of militia or volunteer corps forming
part of such forces
Respecting the obligation to distinguish him-
self/herself from the civilian population
If they do not distinguish themselves, they risk
being tried as spies or saboteurs.
 Swarka case, Israeli Military
Court 1974

In the Swarka case in 1974, an Israeli Military Court
found that members of the Egyptian armed forces
who had infiltrated Israeli territory and launched an
attack in civilian attire were not entitled to prisoner-
of-war status and could be prosecuted as saboteurs.
The Court considered that it would have been illogical
to regard the duty to distinguish oneself as applicable
to irregular armed forces but not to regular armed
forces, as the defendants had claimed.
 Rule 3 CIHL

Rule 3. All members of the armed forces of a party to
the conflict are combatants, except medical and reli-
gious personnel.
Members of the AF are combatants both in IACs and
in NIACs
Combatant status, on the other hand, exists only in in-
ternational armed conflicts
When military medical and religious personnel are
members of the armed forces, they are nevertheless
considered non-combatants.
 Art 4A(2) GCIII Com-
batant

Member of another militia, volunteer corps or organ-
ised resistance movement belonging to a party to the
international armed conflict
Fulfilling as a group the following conditions:
operating under responsible command
Wearing a fixed distinctive sign
Carrying arms openly
Respecting IHL and
Respecting the obligation to distinguish himself/her-
self from the civilian population
 ‘belonging to a party…’

It must be demonstrated that the group fights on be-
half of the state party and the state must accept both
the fighting role of the group and the fact that the
fighting is done on its behalf.
Acceptance may be:
 Express-formal authorisation or acknowledgement that
the group fights on its behalf.
 Tacit-State demonstrates through its actions that it accepts
that the group fights on its behalf e.g. contracting the
group/ declining to denounce
 By control of state over group
 Art 43 AP I combatant

 All organised armed forces, groups and units, under a
command responsible to a party to IAC &
 subject to an internal disciplinary system,
 on condition that he/she respects, individually, at the
time of his/her capture (Art 44 (5) API), the obligation
to distinguish himself/herself from the civilian popula-
tion (Art 44 (3) API:
 usually, while engaged in an attack or a military op-
eration preparatory to an attack, by a clearly visible
item of clothing;
 Art 43 AP I combatant

in exceptional situations (e.g. occupied ter-
ritories, national liberation wars) by carry-
ing his/her arms openly
during each military engagement, &
as long as he/she is visible to the enemy while
engaged in a military deployment preceding the
launching of an attack in which he/she is to par-
ticipate.
Military Prosecutor v. Omar Mah-
mud Kassem And Others 1969

The Court held that the condition of carrying arms
openly was neither fulfilled in a case where the person
carried the arms openly in places where they could
not be seen nor by the mere fact of bearing the arms
during a hostile engagement. The fact that the defen-
dants used their weapons during the encounter with
the Israeli army was not determinative, since no
weapons were known to be in their possession until
they started firing at Israeli soldiers.
 POW status

Arts 1 & 3 of the Hague Regulations and Art 4
of the Third Geneva Convention state that
members of regular armed forces are entitled to
prisoner-of-war status, whereas members of
militias and volunteer corps are required to
comply with four conditions in order to benefit
from such status
Levée en masse-Art 4 (A) (6) GCIII;
Rule 106 CIHL, Art 2 HagueReg

Inhabitants of a non-occupied territory, who on the
approach of the enemy spontaneously take up arms
to resist the invading forces, without having had time
to form themselves into regular armed units,
provided
 they carry arms openly and
 respect the laws and customs of war.
Case No. 126, Israel, Military Prosecutor v. Kassem
and Others-plea for POW status rejected
Military Prosecutor v. Omar Mahmud
Kassem And Others 1969

The Organization to which the defendants belong does not
answer even the most elementary criteria of a levée en
masse. We have not to do with the population of an area
which an enemy is approaching or invading. In October
1969 we were not approaching an area whose population
was not yet under our effective control and we were cer-
tainly not invading new areas, and there cannot be the least
doubt that, in the period from 5 June 1967 to October 1968,
that ‘population’ had time to ‘form itself’ into regular
armed units
 Resistance and liberation
movements

 in situations of armed conflict where “owing to the nature of
the hostilities an armed combatant cannot . . .distinguish him-
self” from the civilian population while he is engaged in an
 attack or in a military operation preparatory to an attack, he
shall retain his status as a combatant, provided he carries his
arms openly:
 (a) during each military engagement, and
 (b) during such time as he is visible to the adversary while he is
engaged in a military deployment preceding the launching of
an attack in which he is to participate.
 Applicability of Exceptions

First, many States have indicated that the exception is
limited to situations where armed resistance move-
ments are organised, namely in occupied territories or
in wars of national liberation.
Secondly, many States have indicated that the term
“deployment” refers to any movement towards a
place from which an attack is to be launched.
Thirdly, Australia, Belgium and New Zealand have
further indicated that the term “visible” includes be-
ing visible with the aid of technical means and not just
 Minimum guarantees

Combatants who fail to distinguish themselves
and are not, as a result, entitled to prisoner-of-
war status (and who do not benefit from more
favourable treatment in accordance with the
Fourth Geneva Convention) are, as a mini-
mum, entitled to the fundamental guarantees
listed in GCIV, including the right to a fair
trial-Art 75 AP I; Rule 100 CIHL
 Combatants in NIACs

 The lawfulness of direct participation in hostilities in non-in-
ternational armed conflicts is governed by national law.
 Practice is ambiguous as to whether members of armed opposi-
tion groups are considered members of armed forces or civil-
ians.
 While State armed forces are not considered civilians, practice
is not clear as to whether members of armed opposition groups
are civilians subject to Rule 6 on loss of protection from attack
in case of direct participation or whether members of such
groups are liable to attack as such, independently of the opera-
tion of Rule 6
 Who is a civilian?

Art 50 AP I → any person who does not belong to one
of the categories of persons referred to in Art 4 A (1),
(2) (3) and (6) of GCIII and Art 43 AP I.
The civilian population comprises all persons who are
civilians.
The presence within the civilian population of indi-
viduals who do not come within the definition of civil-
ians does not deprive the population of its civilian
character.
 Who is a civilian?

Rule 5. Civilians are persons who are not
members of the armed forces. The civilian
population comprises all persons who are civil-
ians.
ICTY Blaˇski´c case in 2000: civilians defined
as “persons who are not, or no longer, mem-
bers of the armed forces”.
 Who is a civilian?

 Art 50 AP I → persons who are not members of the armed forces.
(No reservations have been made to this provision).
 Additional Protocol II does not contain a definition of civilians or the
civilian population even though these terms are used in several pro-
visions.
 Reflected in military manuals and state practice, including that of
states not party to AP I.
 A civilian who participates directly in hostilities loses protection
against attack (see Rule 6). However, such a civilian does not thereby
become a combatant entitled to prisoner-of-war status and, upon
capture, may be tried under national law for the mere participation
in the conflict, subject to fair trial guarantees (see Rule 100).
 German invasion of
Crete

 Report of Judge Rüdel:
 1. Participation of civilians and policemen in open battle on all bat-
tlefields, especially in the western parts of the island; in some areas
civilians offered organized resistance according to military prin-
ciples. The civilian population, including youngsters about ten
years old, fired with all sorts of weapons, also with dumdum and
hunting ammunition. Bush and tree snipers were repeatedly ob-
served... .
 2. Dead and wounded soldiers were robbed and deprived of parts
of their clothing, primarily by the civilian population
See also Georgia/Russia, Human Rights Watch’s Report on the Con-
flict in South Ossetia [Para. 95]
Unprivileged belligerents/non-
privileged combatants

These are persons who participate directly in
an armed conflict but do not have combatant
status or who lose their combatant status.
They lose the privileges ordinarily given to
combatants including immunity from prosecu-
tion and prisoner of war status should they fall
into the hands of the enemy.
 Case No. 290, Georgia/Russia, Human Rights
Watch’s Report on the Conflict in South
Ossetia [Para. 95]

 If, among the detained, there were Georgians who participated in hostilities
against Ossetian or Russian forces, but who were not members of the Geor-
gian military, under international humanitarian law such persons would be
considered non-privileged combatants. Georgians who took up arms to de-
fend their lives or property from advancing Ossetian or Russian forces
would be considered armed civilians. In both cases, detention of such per-
sons would be considered reasonable on security grounds. Such persons are
entitled to the protections guaranteed to civilians under the Fourth Geneva
Convention. Detentions must be carried out in accordance with a regular
procedure permissible under international humanitarian law. Those de-
tained have a right to appeal their internment and have their case reviewed
every six months. The Fourth Geneva Convention provides detailed regula-
tions for the humane treatment of internees. The International Committee of
the Red Cross must be given access to all protected persons, wherever they
are, whether or not they are deprived of their liberty.
 Spies

Arts 29-31 Hague Regulations; Art 46 API, rule 107 CIL
Those who act clandestinely or on false pretences to obtain or
endeavour to obtain information in the zone of operations of a
belligerent, with the intention of communicating to the hostile
party-Art 29.
Excludes:
1. Soldiers who wear their uniforms openly and penetrate into
the zone of operations of the enemy for the purpose of obtaining
information
2. Soldiers and civilians carrying out their mission openly, who
are trusted to deliver messages intended either for their own or
for the enemy’s army
 Spies

Rule 107. Combatants who are captured while en-
gaged in espionage do not have the right to prisoner-
of-war status. They may not be convicted or sen-
tenced without previous trial.
 United States, Ex Parte Quirin et al
Supreme Court of the United States,
317 US 1 (1942)

“The spy who secretly and without uniform passes
the military lines of a belligerent in time of war, seek-
ing to gather military information and communicate it
to the enemy, or an enemy combatant who without
uniform comes secretly through the lines for the pur-
pose of waging war by destruction of life or property,
are familiar examples of belligerents who are gener-
ally deemed not to be entitled to the status of prison-
ers of war, but to be offenders against the law of war
subject to trial and punishment by military tribunals.
 Spies cont.

Not entitled to POW status
Not considered a spy if they are dressed in the
uniform of the armed forces on whom they de-
pend-Art 29 HagueReg.
Members of AF who gather info as residents of
occupied territory are spies if they do so in a
clandestine manner or through false pre-
tences.
 Spies cont.

Only lose POW status if they are captured be-
fore they re-join the forces on whom they de-
pend in the case of non-occupied territory.
Art 31 HagueReg-if they are captured after re-
joining their AF, they will not be held respons-
ible for previous acts of espionage.
Art 30 Hague Reg-Spies may also not be pun-
ished without trial.
 Spies

Anyone who is not entitled to prisoner-of-war sta-
tus, and does not benefit from more favourable
treatment in accordance with the Fourth Geneva
Convention, still enjoys the fundamental guaran-
tees of Article 75 contained in Additional Protocol
I.
However spies not entitled to the right of com-
munication under Art 5 GCIV-considered to have
forfeited the right by engaging in espionage
 Osman v Prosecutor Law Reports, vol. 1,
1969, Appeal Cases, pp. 430-455 (P.C.)]

On March 10, 1965, two girl secretaries at a bank in Singapore
were killed by an explosion caused by a bag containing 25lb. of ni-
troglycerine, placed by the two appellants on the stairs of the
building. The appellants were not wearing uniform and they had
no identification papers nor were they wearing uniform when ar-
rested. They were charged under the Penal Code with the murder
of the two girl secretaries and of another person injured by the
explosion who died later, and tried in the High Court of Singa-
pore [...]. The appellants claimed to be members of the Indonesian
armed forces and entitled to the protection of the Geneva Conven-
tion Relative to the Treatment of Prisoners of War, 1949. The trial
judge ruled that they were not entitled to the status of prisoners of
war and convicted them
Osman v Prosecutor Law Reports, vol. 1,
1969, Appeal Cases, pp. 430-455 (P.C.)]

The finding of the trial court was upheld on
appeal on the finding that by engaging in acts
of espionage, the appellants had lost their right
to PoW status and could be tried for murder.
 The finding of the HL was based on the fact
that they had been dressed in civilian clothes
when they landed when they placed the ex-
plosives and when they were arrested.
 Saboteurs

Person who carry out sabotage.
Sabotage refers to the action taken to destroy or dam-
age material, works or installations which by their na-
ture or purpose add to the efficiency of the enemy’s
armed forces.
No person who does not have combatant status may
lawfully commit sabotage.
United States, Ex Parte Quirin et al Supreme Court of
the United States, 317 US 1 (1942)-German saboteurs
during WWII
Pius Nwaoga v. The State 1972 ILR
 Pius Nwaoga v. The State
1972 ILR

 The appellant charged with murder. He was a member of the
Biafran Army dispatched to Federal Territory to kill another
member who had been allocated funds for the benefit of the
army but who had diverted them instead to his private busi-
ness. In entering federal territory, the appellant had swapped
his uniform for civilian attire.
 The court, in considering the appeal took into account the fol-
lowing factors:
 That the appellant and those with him were rebel officers.
 That they were operating inside the Federal Territory as the evidence
showed that the area was in the hands of the Federal Government and
Federal Army.
 Pius Nwaoga v. The
State 1972
 ILR
 That the appellant and those with him were operating in
disguise in the Federal Territory, as saboteurs.
 That the appellant and those with him were not in the rebel
army uniform but were in plain clothes, appearing to be
members of the peaceful private population.
Ruling: the deliberate and intentional killing of an
unarmed person living peacefully inside the Federal
Territory was a crime against humanity, and even if
committed during a civil war was in violation of the
domestic law of the country, and must be punished.
Conviction upheld and appeal is dismissed
 United States, Ex Parte
Quirin et al

…Modern warfare is directed at the destruction of enemy war supplies
and the implements of their production and transportation, quite as
much as at the armed forces. Every consideration which makes the un-
lawful belligerent punishable is equally applicable whether his objective
is the one or the other. The law of war cannot rightly treat those agents
of enemy armies who enter our territory, armed with explosives in-
tended for the destruction of war industries and supplies, as any the less
belligerent enemies than are agents similarly entering for the purpose of
destroying fortified places or our Armed Forces. By passing our bound-
aries for such purposes without uniform or other emblem signifying
their belligerent status, or by discarding that means of identification af-
ter entry, such enemies become unlawful belligerents subject to trial and
punishment.
 PMCs/PSCs

The landscape of armed conflict in the world
today indicates that the use of these companies
is likely to increase rather than decrease for
several reasons:
Increased complexity of weapons
Understaffing of state armies
Use of PSCs by international organisations and
NGOs
Use of organised armed groups
 PMCs/PSCs.

The involvement of these groups may
take several forms:
Protecting military personnel and assets
Training and advising armed forces
Maintaining weapons systems
Interrogating detainees
Fighting
 PMCs/PSCs-categorisa-
tion

As members of the armed forces in the sense of Art-
icle 4(A) (1) and (3) of the Third Geneva Convention
if they are incorporated into those forces, as has
been the case in a number of instances.
Far more frequently, however, States resort to
PMCs/PSCs because they are downsizing their
own armed forces. Thus, there are likely to be few
instances where PMCs/PSCs form part of the
armed forces.
 PMCs/PSCs-categorisa-
tion

 Employees of PMCs/PSCs can be militias or other vo-
lunteer corps belonging to a State party to an armed
conflict within the meaning of Article 4(A)(2) of the
Third Geneva Convention.
 This is the case if, in a situation of international armed
conflict, they constitute a group ‘‘belonging to’’ a party
to the conflict and fulfil the four criteria defining that
group: to be under responsible command, to have a
fixed distinctive sign, to carry arms openly and to obey
the laws and customs of war.
 Categorisation cont.

A number of employees of PMCs/PSCs are likely
to fall into the category of civilians accompanying
the armed forces within the meaning of Article
4(A)(4) of the Third Geneva Convention – one of
the examples explicitly mentioned in that article
are civilian members of military aircraft crews or
supply contractors.
It is important to stress that civilians accompany-
ing the armed forces remain civilians.
 Categorisation cont.

Given the challenges of the categories 1 & 2,
it is more likely that members of PSCs/PMCs
will be civilians.
In international armed conflicts, they are
covered by the Fourth Geneva Convention (as
long as they fulfil the nationality criteria set
out in Article 4), Additional Protocol I and
customary law.
 Montreux Document on
PMSCs

 Montreux Document on pertinent international legal obliga-
tions and good practices for States related to operations of
private military and security companies during armed con-
flict, 2008
 Categorisation cont.

In non-international armed conflicts, they
come under common Article 3, Additional
Protocol II and customary law.

If they participate directly in hostilities,

however, they lose the protection from attack
afforded to them as civilians in both types of
conflict.
 Mercenaries-Art 47 AP I

Have been recruited specially to fight in an armed
conflict;
In fact be taking a direct part in hostilities;
Be motivated essentially by the desire for private
gain;
Be neither a national of a party to the conflict nor a
resident of any territory controlled by a party to the
conflict,
 Mercenaries-Art 47 AP I

Not be a member of the armed forces of a party to the
conflict;
Not have been sent by a State that is not a party to
the armed conflict on official duty as a member of its
own armed forces.
State parties to International Convention against the
Recruitment, Use, Financing and Training of Mercen-
aries and the Convention for the Elimination of Mer-
cenarism in Africa can prohibit mercenarism.
 Mercenaries-Art 47 AP I

Rule 108. Mercenaries, as defined in Addi-
tional Protocol I, do not have the right to
combatant or prisoner-of-war status. They
may not be convicted or sentenced without
previous trial.
 Categorisation

A mercenary is not entitled to combatant
status and therefore does not become a
prisoner of war when they fall into the
hands of the enemy-Art 47 (1) AP I; Rule
108
Nevertheless, if they meet the nationality
criteria of Art 4 GCIV, they are entitled
to protection under that Convention.
 Categorisation

Otherwise, they are entitled to the min-
imum guarantees in Art 75 API which is
applicable to them as treaty law and as
customary law.
They can be prosecuted under domestic
law for participation in hostilities.
 Mercenaries

 Case No. 274, Case Study, Armed Conflicts in Sierra Leone,
Liberia and Guinea (1980-2005)
 Terrorists

 Though acts of terrorism are addressed as crimes under
domestic law and many international and regional con-
ventions, there is no comprehensive definition of terror-
ism that has been adopted internationally. Despite the
lack of definition, terrorist acts may, if the requisite criteria
are met, qualify as war crimes or crimes against humanity.
 Unfortunately, the term ‘terrorism’ is highly susceptible
to objective political interpretations and therefore a
legal definition is highly unlikely to reduce its emotive
use.
 Terrorists

 IHL prohibits acts against civilians and civilian objects in
the course of an armed conflict which if committed during
peacetime would be considered terrorist-see Art 51(2)AP I.
 Acts of terror, collective penalties and other measures of
intimidation are also prohibited because criminal re-
sponsibility is individual and therefore collective pun-
ishments are meant to only induce terror. Such acts are
prohibited because they do not provide any direct milit-
ary advantage.
United States, Status and Treatment of Detainees Held in
Guantanamo Naval Base
 Rights of combatants

POW status → Art 44 AP I
If unclear whether a person participat-
ing in hostilities is entitled to POW
status, they are entitled to have their
status determined by a competent mu-
nicipal tribunal of the detaining power-
Art 5, GCIII; Art 45 (2) AP I
 Rights of combatants

Until the Art 5 determination, such per-
sons are entitled to enjoy POW status-See
Case No. 261, United States, Status and
Treatment of Detainees Held in
Guantanamo Naval Base

Art 45 (1) AP I
 Rights of combatants

Case No. 124, Israel/Gaza, Operation Cast
Lead [Part I, paras 237-248; Part II, paras 393-
437]-functioning of the police during the Gaza Opera-
tion; police considered by Israel legitimate targets
when participating in Hamas conflict with IDF;

Characterisation as combatants rejected and their

killing ruled disproportionate in relation to military
advantage to be gained.
 Rights of combatants
cont.

 Art 19 GCIII-evacuation of persons hors de combat
 Prisoners of war shall be evacuated, as soon as possible after
their capture, to camps situated in an area far enough from
the combat zone for them to be out of danger.
 Only those prisoners of war who, owing to wounds or sick-
ness, would run greater risks by being evacuated than by
remaining where they are, may be temporarily kept back in a
danger zone.
 Prisoners of war shall not be unnecessarily exposed to
danger while awaiting evacuation from a fighting zone
POW rights

 Obligation to distinguish

CIHL, Rule 106
Combatants must distinguish themselves
from the civilian population while they are
engaged in an attack or in a military operation
preparatory to an attack. If they fail to do so,
they do not have the right to prisoner-of-war
status.
 Rights of civilians

 Civilians who take part in hostilities and who meet the nation-
ality criteria in Art 4 GCIV remain protected within the mean-
ing of that Convention.
 Civilians who do not meet the criteria in Art 4 remain protec-
ted by CA 3 and Art 75 API (which is also customary law)
 Right to have their status determined by a competent tribunal
 Right of appeal internmentplll and to have a review of that
status automatically every 6 months-art 78 GCIV
 ICRC must be allowed access to areas of detention to super-
vise detention conditions
 Case No. 290, Georgia/Russia, Human Rights
Watch’s Report on the Conflict in South
Ossetia [Para. 95]

 If, among the detained, there were Georgians who participated in hostilities
against Ossetian or Russian forces, but who were not members of the Geor-
gian military, under international humanitarian law such persons would be
considered non-privileged combatants. Georgians who took up arms to de-
fend their lives or property from advancing Ossetian or Russian forces
would be considered armed civilians. In both cases, detention of such per-
sons would be considered reasonable on security grounds. Such persons are
entitled to the protections guaranteed to civilians under the Fourth Geneva
Convention. Detentions must be carried out in accordance with a regular
procedure permissible under international humanitarian law. Those de-
tained have a right to appeal their internment and have their case reviewed
every six months. The Fourth Geneva Convention provides detailed regula-
tions for the humane treatment of internees. The International Committee of
the Red Cross must be given access to all protected persons, wherever they
are, whether or not they are deprived of their liberty.
 Direct participation

Direct participation in hostilities is conduct, which
if carried out by civilians, suspends their protec-
tion against the dangers arising from military op-
erations.
Art 51 (3) AP I-civilians lose their protection for
such time as they directly participate in hostilities
Cf Art 13 (3) APII; rule 6 CIL.
However, no definition of ‘direct participation’ ei-
ther in CA 3 or in APs.
The ICRC Interpretive Guide on
Direct Participation in Hostilities

 Threshold of harm: The act must be likely to adversely affect
the military operations or military capacity of a party to an
armed conflict or, alternatively, to inflict death, injury, or de-
struction on persons or objects protected against direct attack;
 Direct causation: There must be a direct causal link between
the act and the harm likely to result either from that act, or
from a coordinated military operation of which that act con-
stitutes an integral part;
 Belligerent nexus: The act must be specifically designed to
directly cause the required threshold of harm in support of a
party to the conflict and to the detriment of another.
 Article 51 (3)AP I - ‘for such time’
Israel Targeted Killings case, para 39

[…] With no consensus regarding the interpretation of the wording “for
such time”, there is no choice but to proceed from case to case. Again, it is
helpful to examine the extreme cases. On the one hand, a civilian taking a
direct part in hostilities one single time, or sporadically, who later de-
taches himself from that activity, is a civilian who, starting from the time
he detached himself from that activity, is entitled to protection from at-
tack. He is not to be attacked for the hostilities which he committed in the
past. On the other hand, a civilian who has joined a terrorist organization
which has become his “home”, and in the framework of his role in that or-
ganization he commits a chain of hostilities, with short periods of rest
between them, loses his immunity from attack “for such time” as he is
committing the chain of acts. Indeed, regarding such a civilian, the rest
between hostilities is nothing other than preparation for the next hostility
[…].
 Consequences of participa-
tion

 While in the conduct of hostilities
 Loss of immunity from attack-civilians are protected against attack unless and for
such time as they take a direct part in hostilities (see Rule 6 CIHL).
 Once in the enemy’s hands
 Internment where necessary for security. However, they have a right to have in-
ternment reconsidered without delay and automatically every 6 months.
 Possible forfeiture of certain rights and duties during internment e.g. communica-
tion if captured as a spy-Art 5 GC IV.
 Criminal charges without exposure to risk of violating the right to life, physical in-
tegrity and personal dignity. A civilian does not become a combatant entitled to
prisoner-of-war status when they particpate and, upon capture, may be tried under
national law for the mere participation in the conflict, subject to fair trial guarantees
(see Rule 100).
 there is no POW status in NIACs and therefore participation leads to loss of protec-
tion and the possibility of prosecution under IHL, IHRL and domestic law.
 Note: there is no category of persons affected by or involved in IACs who fall outside
the scope of IHL intervention.
 Belligerent reprisals

 Rule 145. Where not prohibited by international law,
belligerent reprisals are subject to stringent conditions.
 Belligerent reprisal consists of an action that would oth-
erwise be unlawful but that in exceptional cases is consid-
ered lawful under international law when used as an en-
forcement measure in reaction to unlawful acts of an ad-
versary.
 In international humanitarian law there is a trend to out-
law belligerent reprisals altogether. Those that may still be
lawful are subject to the stringent conditions set forth be-
low.
 Belligerent Reprisals

Purpose of reprisals. Reprisals may only be taken
in reaction to a prior serious violation of inter-
national humanitarian law, and only for the
purpose of inducing the adversary to comply
with the law.
Measure of last resort. Reprisals may only be car-
ried out as a measure of last resort, when no
other lawful measures are available to induce
the adversary to respect the law.
 Belligerent Reprisals

Proportionality. Reprisal action must be pro-
portionate to the violation it aims to stop.
Decision at the highest level of government. The
decision to resort to reprisals must be taken
at the highest level of government.
Termination. Reprisal action must cease as
soon as the adversary complies with the law.