Distinguishing the indistinguishable?
Status-based targeting in non-international armed conflict
Jilles J. Schut
Student number: 10785205
Master’s thesis in International and European Law: Public International Law.
Total EC’s: 12.
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Summary
This thesis sets out to analyse the interplay between the principle of distinction in International Humanitarian Law on the one hand and the targeting of members of organized armed groups on the other. Since in most modern day non-international armed conflicts, albeit with some exceptions, the physical appearance of members of organized armed groups closely resembles that of protected civilians in armed conflict, those regular armed forces which are engaged in targeting operations against these persons are up for a challenging task. The cornerstone principle of International Humanitarian Law, in relation to targeting, the principle of distinction, requires belligerent forces to distinguish between those civilians who are to be protected from direct attack in armed conflict and those persons who take a direct part either on a spontaneous or on permanent basis in hostilities. The interplay between upholding the principle of distinction in armed conflict and the desire to engage the adversary in such conflicts is a challenge that finds its origins in law. This thesis therefore responds to that challenge by providing an answer to the following research question: “What implications does the principle of distinction have for status-based targeting of members of organised armed groups in non-international armed conflict”? To provide an answer to this main research question this thesis has formulated two sub-questions.
The first sub-question addresses the way International Humanitarian Law copes with the principle of distinction in non-international armed conflict. Chapter Two, where this sub-question is addressed, first provides an overview of International Humanitarian Law as being the body of public international law that regulates targeting in armed conflict and establishes a legal regime concerned with the preservation of humanitarian values in such armed conflicts. The principle of distinction serves as a fundamental principle of that body of law. The focus of this research concerns one of the two types of armed conflict: non-international armed conflict. There, governmental authorities are often in conflict with organized armed groups, or the latter are in conflict with each other within the territory of a State.
The body of law governing non-international armed conflict does not express a formally recognized notion of combatant in the way the term is known in international armed conflict. Those persons opposing State armed forces are therefore generally called ‘fighters’, being either members of organized armed groups or dissident armed forces. The other way around, civilians are those persons that are not members of an organised armed group, dissident armed forces or State armed forces.
3 The principle of distinction in NIAC requires a clear separation between fighters on the one hand and civilians on the other. In contrast with the law of international armed conflict there is no clear legal guidance in non-international armed conflict on how this distinction is preserved in practice. Nevertheless, it is clear that this fundamental principle, as a matter of both treaty law and customary law, equally applies in both types of armed conflict and that it is to be uphold under all circumstances. Furthermore, it would seem fair to establish a duty of distinction on the part of members of organized armed groups at least during and immediately preceding and subsequent to each military engagement.
In the third chapter the second sub-question addresses the relationship between the applicable targeting rules in non-international armed conflict and the operationalization of the principle of distinction. The concept of targeting can be described as the process to detect, select, and prioritize targets; match the appropriate action and assess the appropriate effects based on the commander’s objective, guidance, and intent. Targeting authority can be derived on the basis of actual conduct of persons or on the basis of the status of persons. This research takes the position that members of organized armed groups in a general sense are eligible for direct attack due to their status as being a member of a non-State belligerent party to the conflict.
Membership within an organized armed group can be established via a de facto and de jure incorporation into the group. Where the former relates to a demonstration of ongoing participation in hostilities on behalf of the armed group, the latter relates to formal means of acquiring membership. The process of determining membership in organized armed groups, on the basis of numerous criteria, requires an analysis of the totality of circumstances on a case-by-case basis. Determining whether an individual is a member of an organized armed group is without a doubt a challenging task. In operationalizing the targeting cycle commanders have to be certain that their target is a legitimate target and not a civilian. In cases of doubt, prospective targets have to be treated as civilians and are protected from direct attack. The challenging process of determining whether a person is a legitimate target, due to his status, thus finds it origins in the principle of distinction itself and is a clear reflection of the far-reaching implications the principle has in targeting operations. It limits the group of status-based targetable fighters to clear cases and thereby reduces the group of individuals who might be prone to direct attack, inevitably sparing civilian lives.
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Table of Contents
Chapter 1: Introduction ... 7
1.1 Introduction ... 6
1.2 Problem analyses and methodology ... 7
1.2.1 Legal suppositions ... 8
1.2.2 Practical determinations ... 12
1.3 Research question and sub-questions ... 13
1.3.1 Sub-questions ... 13
1.4 Research goal ... 13
1.5 Research delimitation and assumptions ... 14
Chapter 2: The principle of distinction in NIAC ……… 16
2.1 Introduction ... 15
2.2 Armed conflict ... 15
2.2.1 What’s in a name? ... 15
2.2.2 Apples and oranges? ... 17
2.3 NIAC ... 18
2.3.1 Sources ... 19
2.3.2 Terms and clarifications ... 20
2.3.2.1 Civilians ... 20
2.3.2.2 Fighters ... 22
2.3.2.3 Dissident armed forces ... 22
2.3.2.4 Organized armed groups ... 22
2.3.3 Direct participation in hostilities ... 24
2.3.4 Organised armed groups and DPH ... 25
2.3.4.1 Debate ... 25
2.4 Distinction... 26
2.4.1 Combatants ... 26
2.4.2 The absence of combatant-status in NIAC ... 27
2.4.2.1 Duty to distinguish? ... 28
2.5 Sub-conclusion ... 30
Chapter 3: Status-based targeting in NIAC………. 32
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3.2 The law of targeting in NIAC ... 31
3.2.1 Targeting cycle ... 31
3.2.2 Targeting and type of armed conflict ... 34
3.2.3 Targeting of persons ... 35
3.2.3.1 Conduct-based targeting ... 36
3.2.3.2 Status-based targeting ... 37
3.2.4 Membership in an organized armed group ... 38
3.2.5 Legality of status-based targeting ... 39
3.4 Operationalizing the principle of distinction ... 40
3.4.1 Target identification ... 40
3.4.2 Intelligence ... 41
3.4.3 Determining membership in an organized armed group ... 42
3.4.4 Unequivocal difficulties ... 44
3.5 Sub-conclusion ... 45
Chapter 4: Conclusion ...48
Recommendations ...50
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Chapter 1
Introduction
1.1 Introduction
General Sir Rupert Smith made an excellent observation in his 2005 published book The Utility of Force: The Art of War in the Modern World by stating that “war no longer exists”, clearly referring to industrial interstate armed conflict. The modern battlefield is “amongst the people” and military engagements on that battlefield take place “in the presence of civilians (..) and in defence of these civilians” but also “against civilians, as much as an opposing force” 1. A result of this outlook on
today’s battlefield is obviously the fact that the legal status of the various participants to the conflict has become blurred. This is particularly the case where fighting takes place in urban areas where participants to a conflict can easily make use of their surroundings and find shelter amongst the civilian population. Distinguishing between those who are legally protected from direct attack in armed conflict and those who participate in these hostilities becomes, in a scenario as Smith describes, increasingly difficult.
In Smith’s scenario of fighting amongst the people, these persons who directly participate in hostilities become the adversary of the regular state armed forces, thereby losing the protection that civilians2 in armed conflict so clearly have. In contrast to those person who are protected from direct
attack the former category of persons can, in certain circumstances, be legally targeted under
1 Smith, R. (2005). The Utility of Force: the Art of War in de Modern World. Oxford: Oxford University Press, p.
21.
2 The term ‘civilian’ will be used here as to refer to that person “who is not a member of state armed forces,
dissident armed forces or other organized armed groups”, whereby “organized armed groups constitute the armed forces of a non-state party to the conflict”. Note that this definition is focussed on the legal regime governing NIAC and is not captured in treaty-based law. Civilians who lose their protection from direct attack do so because of their direct participation in hostilities. The loss of protection lasts for the duration of their participation: art. 51(3) Additional Protocol I to the 1949 Geneva Conventions relating to the protection of Victims of Armed Conflicts (AP I), art. 13(3) Additional Protocol II to the Geneva Conventions of 1949 relating to the Protection of Victims of Non-International Armed Conflicts (AP II), rule 6 of the Customary IHL study: Henckaerts, J. & Doswald-Beck, L. (2009). Customary International Humanitarian Law. Vol. (1). Rules. Cambridge: Cambridge University Press, p. 19 – 24. In IAC the term ‘civilian’ refers to a person “who is not a member of the armed forces or of a levee en masse”. This latter definition is captured in art. 50 (1) Additional Protocol I to the Geneva Conventions of 1949 (AP I). Since this thesis shall focus on the legal regime governing NIAC only the former definition of the term ‘civilian’ will be used. Gasser, H-P. & Dörmann, K. (2013).
Protection of the civilian population. In Fleck, D (Ed.). The Handbook of International Humanitarian law. Oxford: Oxford University Press, p. 233. The term ‘civilian’ will be elaborated upon in depth in paragraph 2.3.2.1.
7 International Humanitarian Law (hereinafter: IHL), the body of law that focuses on the preservation of humanitarian values in and the protection of victims of armed conflict by limiting the effects of that armed conflict based on a balance between military necessity and humanity3.
Regarding non-international armed conflicts (hereinafter: NIAC) “between governmental authorities and organized armed groups (..) within a State”4 a clear theoretical separation can be made between
those who, under limited and specific circumstances, can be legally targeted by military force and those who must be protected from direct attack5. This theoretical divide embodies one of the
cornerstone principles of IHL: the principle of distinction6.
Nevertheless, practice demands a more nuanced outlook on this theoretical divide. As the International Committee for the Red Cross (hereinafter: ICRC) rightly puts it: “The unclear distinction between civilian and military functions and the increasing involvement of civilians in military operations have caused confusion as to who is a legitimate military target and who must be protected against direct attack”7. The above made observation that modern day conflict is set
amongst the people makes this theoretical divide in practice a difficult task, though one matter is out of question: the principle of distinction in armed conflict is to be observed under all circumstances.
1.2 Problem analyses and methodology
3O’Connell, M.E. (2014). Historical Development and Legal Basis. In Fleck, D (Ed.). The Handbook of
International Humanitarian law. Oxford: Oxford University Press. p. 14.
4Prosecutor v. Tadic, IT-94-1, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction, 2 October 1995, §70.
5Fleck, D. (2014). The Law of Non-International Armed Conflict. In Fleck, D (Ed.). The Handbook of International
Humanitarian law. Oxford: Oxford University Press. p. 591.
6 The principle of distinction in armed conflict underpins all military operations in both international as well as
non-international armed conflict. It is a rule of customary international humanitarian law and is codified in rule 6 and 7 of the ICRC Customary International Humanitarian Law Study of the ICRC. See: Henckaerts, J. & Doswald-Beck, L. (2009). Customary International Humanitarian Law. Vol. (1). Rules. Cambridge: Cambridge University Press, p. 19 – 29. In international armed conflict combatants are obliged to distinguish themselves from the civilian population which is protected against direct attack by wearing a uniform (art. 44(7) API). There also needs to be distinguished between civilian and military objects (arts. 48 and 52(2) AP I). In
non-international armed conflict this principle applies just as much so as to protect civilians and civilian objects from the effects of military operations. What is important however is that the duty to distinguish between
belligerent parties and those who are protected from direct attack in NIAC is not based on treaty law, but finds it origins in customary law. Rule 1 of the ICRC Customary IHL Study clearly provides that “The parties to the conflict must at all times distinguish between civilians and [belligerents: JJS]. Attacks may only be directed against [belligerents: JJS]. Attacks must not be directed against civilians”. This rule is applicable in both IAC as well as NIAC. Henckaerts & Doswald-Beck, 2009, p. 3.
7 ICRC (2009). Direct Participation in Hostilities: Questions & Answers. <https://www.icrc.org/eng/resources
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1.2.1 Legal suppositions
The result of this clash between theory and practice is the fact that those civilians protected from direct attack “are more likely to fall victim to erroneous, unnecessary or arbitrary attacks, while soldiers, unable to properly identify their enemy, face an increased risk of being attacked by persons they cannot distinguish from civilians”8. But again, the principle of distinction has to be upheld under
all circumstances and that basic rule of IHL has its obvious implications for targeting processes. It is these implications for the law of targeting, due to the observance of the fundamental principle of distinction that forms the subject matter of this thesis. More specifically this thesis focuses on status-based targeting of persons in NIAC.
The notion of “direct participation in hostilities” is very much conduct-based9 where civilians lose
their protection from direct attack “for such time as they take a direct part in hostilities”10. From this
perspective a civilian can only be legally targeted “for such time” as they actually take a direct part in hostilities. They become legitimate military targets while performing the specific act. Here the responding armed forces of the State can to a certain extent distinguish those persons engaging in the hostilities and those civilians who are immune from direct attack on a case-by-case basis, thereby upholding the fundamental principle of distinction. Things become more difficult when civilians become legitimate military targets due to their status by virtue of their membership into an organised armed group. In theory that person can take a direct part in hostilities even before he or she first engages in hostile conduct. In that hypothetical situation the armed forces of a State can legally target those persons, but are not directly responding to an actual hostile engagement. They engage in a military targeting process on the basis of the status of members of organised armed groups where they have to observe the principle of distinction to the fullest extent possible.
As a central starting point, this research adheres to the supposition that persons in NIAC become targetable based on their status due to their membership in an organized armed group, which in turn is a non-state party to the armed conflict. It commences from this starting point for the following reasons. Firstly, members of organized armed groups are in a similar way to state armed forces “customarily understood to qualify as belligerents, and are therefore legitimate targets of attack at
8 Ibid.
9Maxwell, M. (2012). Rebutting the Civilian Presumption: Play Whack-A-Mole Without a Mallet? In: Finkelstein,
C., Ohlin, J.D. & Altman, A. (Eds.), Targeted Killings: Law and Morality in an Asymmetrical World. Oxford: Oxford University Press. p. 41.
10 This is a rule of customary IHL and is reflected in rule 6 of the Customary International Humanitarian Law
Study of the ICRC. See: Henckaerts & Doswald-Beck, 2009, p. 19. It is to be noted that the concept of direct participation in hostilities is further elaborated upon in paragraph 2.3.3.
9 all times”11. Secondly, and in a similar vein, from the wording of both Common Article 3 to the four
Geneva Conventions, article 1 AP II and the commentary to art. 13 (3) AP II12 it is implied that the
opposing parties to the conflict can legally target each other, safe within the boundaries of IHL, “even if ones daily function is not necessarily to fight, but rather to cook or maintain equipment”13. The
protection of “persons taking no active part in hostilities”14 necessarily implies hostilities between
opposing parties15 who do take an active part in hostilities and “it is widely accepted that
non-international armed conflicts governed by Common Article 3 are those waged between state armed forces and non-state armed groups or between such groups themselves”16. Finally, it is fair to argue
that “a majority of [IHL: JJS] experts” agrees on the position that “the authority to attack members of the armed forces applies with equal force to attacking members of any organized belligerent group engaged in (..) non-international armed conflict”17.
11Corn, G.S. et al (2013). Belligerent Targeting and the Invalidity of a Least Harmful Means Rule. U.S Naval War
College; International Law Studies. Vol. 89. Pp. 536 – 626, at p. 549. In making this statement Corn et al cites,
among others, the ICTY in the Kordić & Čerkez case. There, the ICTY first questioned itself whether members of organized armed groups “are to be considered as combatants at all times during the conflict or only when they take a direct part in hostilities”. After reviewing the commentary to the Additional Protocols to the Geneva Conventions of 1949 on this matter the Appeals Chamber of the ICTY comes to argue that members of the armed forces resting in their homes in the area of the conflict, as well as members of the [organized armed group: JJS] residing in their homes, remain combatants whether or not they are in combat, or for the time being armed.” Prosecutor v. Kordić & Čerkez, IT-95-14 / 2A, ICTY Appeals Chamber, Judgment, at para. 51. Next to that Gurule and Corn, in discussing the rules governing targeting of persons, argue that “subjecting members of organized belligerent groups to status based targeting pursuing to [IHL: JJS] as opposed to civilians who periodically lose their protection from attack seems both logical and consistent with the practice of states engaged in non-international armed conflicts”. Gurule, J. & Corn, G.S. (2011). Principles of Counter-Terrorism
Law. St. Paul: West Publishers, p. 70 – 76. Cited from: Corn et al, 2013, p. 549.
12 Commentary to the Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, at para. 4789. This paragraph provides that “those who belong to armed forces or armed groups may be attacked at any time”.
13 Vanlandingham, R.E. (2013). Meaningful Membership: Making War a Bit More Criminal. Cardozo Law Review.
Vol. 35. Pp. 79 – 140, p. 119.
14 Common Article 3 to the four Geneva Conventions of 1949.
15On this point Kleffner argues that Common Article 3 “is addressed to ‘each Party to the conflict’, thereby
recognizing the existence of collective entities that face each other, at least one of which is a non-state actor”. Kleffner, J.K. (2007). From ‘Belligerents’ to ‘Fighters’ and Civilians Directly Participating in Hostilities – On the Principle of Distinction in Non-International Armed Conflict One Hundred Years after the Second Hague Peace Conference. Netherlands International Law Review. Vol. 54 (2). Pp. 315 – 336. At p. 324.
16 Pejic, J. (2011). The protective scope of Common Article 3: more than meets the eye. International Review of
the Red Cross. Vol. 93 (881), pp. 189 – 225, at p. 191. In addition, NIAC’s governed by AP II have an equal
application between state armed forces and non-state armed groups or between such groups within a state, albeit with a higher threshold of applicability than Common Article 3 since AP II requires territorial control over part of the state’s territory in question in order to enable the armed group to carry out sustained and
concerted military operations.
17Corn et al, 2013, p. 549. Corn et al make a reference, among others, to the San Remo Manual on the Law of
Non-International Armed Conflict. The manual employs the term “fighter” as further elaborated upon in paragraph 2.3.2.2, meaning “members of armed forces and dissident armed forces or other organized armed groups” or those persons “taking an active (direct) part in hostilities”. The Manual explicitly states that for targeting purposes “attacks must only be directed against fighters or military objectives”. Schmitt, M. N., Garraway, C. H. B. & Dinstein, Y. (2006). The Manual on the Law of Non-International Armed Conflict, with
10 A perspective on the question who would then qualify as a member of an organized armed group was eventually put forward by the ICRC in 2009. Both the Geneva Conventions as well as their Additional Protocols do not give a clear guidance on the interpretation of the notion of ‘direct participation in hostilities’. The ICRC together with academics and military experts therefore developed an Interpretative Guidance on the notion of Direct Participation in Hostilities (hereinafter: IG DPH). It is important to note that these experts “did not manage to reach agreement on all aspects dealt within the guidance”18. The vast majority did for example reach an overall agreement on the
three cumulative criteria which constitutes an act as ‘direct participation in hostilities’19. Where the
opinions of the experts visibly diverged was the introduction of the so-called ‘continuous combat function’ (hereinafter: CCF).
In the light of status-based targeting of persons in NIAC, what the CCF basically establishes is that membership in an organised armed group is restricted solely to those cases where individuals assume a continuous function for the armed group which “corresponds to that collectively exercised by the group as a whole, namely the conduct of hostilities on behalf of a non-state party to the conflict”20. The CCF thus establishes that only those persons that assume a combat function on a
continuous basis for the organized armed group can be considered a member of that armed group and thereby become targetable based on their status.
This thesis rejects the ICRC approach concerning the CCF as the only way to trigger targeting authority based on the status of members of organized armed groups for the following reasons. First, in the reality of fighting ‘amongst the people’ it seems practically impossible to determine, beyond reasonable doubt, whether an individual assumes a CCF for an organized armed group. Key leader engagement might, however, be feasible since these leaders are generally known, but determining a CCF on a tactical level of individual belligerents might seem to be an improbable task. In that sense,
Commentary. San Remo: International Institute of Humanitarian Law, p. 4 & 18. Next to that, Maxwell, in
discussing whether DPH in light of hostile conduct of an organized armed group can be considered as multiple elements of individual DPH or whether those individual contributions can be considered as a single DPH for the whole armed group, argues that one must refrain from focussing on individual conduct and that “like the armed forces of a state, an organized armed group fights like a group; that is, it has command structure. The individual civilian on the other hand does not”. Maxwell, M. (2012). Rebutting the Civilian Presumption: Playing Whack-A-Mole Without in Mallet. In: Finkelstein, C., Ohlin, J.D. & Altman, A. (eds). Targeted Killings: Law and
Morality in an Asymmetrical World. Oxford: Oxford University Press, pp. 31 – 59, at p. 54.
18 Gasser & Dörmann, 2013, p. 256.
19For a civilian to lose his protection against direct attack in armed conflict that person must “directly
participate in hostilities”. To meet the threshold of actually losing that protection the civilian in question must firstly cause “harm of a specifically military nature or by inflicting death, injury, or destruction on persons or objects protected against direct attack”, secondly there must be “a causal link between a specific act and the harm likely to result either from that act, or from a military coordinated operation of which that act constitutes an integral part” and third “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”. See: Melzer, 2009, p. 47, 51 & 58.
11 the CCF narrows down those instances of status-based targeting to exceptional cases where a CCF is established beyond reasonable doubt and it is therefore quite obvious that the restrictive ICRC approach “would present significant practical problems of application in the field”21. Secondly,
requiring a CCF might trigger an adverse reaction of belligerent forces. These persons will try even harder not to distinguish from the civilian population, knowing that they only will be eligible for direct attack if a CCF is established by the regular armed forces. Finally, requiring a CCF will inevitably create an unbalance since regular armed forces are all eligible for direct attack, safe for medical and religious personnel, on a continuous basis, but only those belligerents who assume a CCF in an organized armed group can be targeted on the same par. ‘Other’ organized armed group members who cannot be labelled with a CCF because of a multiple of reasons, are likely to enjoy an unjustified status of protection which runs counter to reciprocity in the armed hostilities between both parties to the conflict.
In contrast to members of an organised armed group, individual civilians who engage in overt acts of direct participation in hostilities lose their civilian protection and become legitimate targets for the duration of their participation. That act, disregarding inevitable exceptions for the sake of the argument, could be directly linked with the intentional harm caused to for example the armed forces of the State and direct reactionary force can be applied against this individual22. Targeting authority
is then triggered on the basis of conduct. When a member of an organised armed group engages in such an act, targeting that member in a later moment in time does not occur on a direct reactionary basis as is the case with sporadic acts of civilians directly participating in hostilities. The member as such, having ceased his overt hostile acts, remains nevertheless a legitimate target by virtue of his status. Thus, conduct-based targeting can be seen as a reactionary use of force against a civilian for such time as he is directly participating in hostilities. That person cannot be legally targeted any longer when he blends back into the civilian population. Status-based targeting can be said to work the other way around and does not revolve around the reactionary counter-use of force. As Dinstein argues: “In practical terms, the individual in question may be targeted, even when not personally linked to any specific hostile act-simply due to his membership in such a group as long as that membership continues”23.
21 Henderson I, & Cavanagh, B. (2014). Unmanned Arial Vehicles. In: Nasu, H. & McLaughlin, R. (eds.). New
Technologies and the Law of Armed Conflict. The Hague: T.M.C. Asser Press. p. 207.
22For the three cumulative criteria which must be met for an act to qualify as direct participation in hostilities
see: Melzer, 2009, p. 47, 51 & 58.
23 Dinstein, Y. Distinction and Loss of Civilian Protection in International Armed Conflicts. In: Carsten, M.D.
12 Thus, this research, after having rejected the CCF approach of the ICRC, tackles the clash between theory and practice as elaborated upon above from the starting-point that status-based targeting authority can be triggered by membership into an organized armed group24. In that way, the
restrictive scope of the IG DPH as far as it concerns the CCF approach can make way for a more practically workable approach to status-based targeting.
1.2.2 Practical determinations
Above it was considered that the law, though not expressed in such broad terms, implicitly allows status-based targeting of members of organized armed groups. A subsequent question which logically follows is: how to determine membership in an organized armed group? It is this determination, with its obvious practical implications, that touches upon the operationalization of the principle of distinction. In upholding this fundamental principle an operational field commander has to determine on a case-by-case basis whether potential targets, in scenarios where these persons have not (yet) engaged in overt hostilities, are eligible for direct attack based on their status. How to distinguish between members of organized armed groups and civilians when their physical appearances closely resemble? For example, how does one distinguish between a group of civilians firing guns in the open sky because of wedding celebrations and a group of members of an organized armed group firing similar weapons in the same open sky for training purposes? The operationalization of the principle of distinction thus has its obvious practical implications on the battlefield.
Nevertheless, the difficulties surrounding the determination of membership in an organized armed group does not necessarily mean that status-based targeting has to give way to more obvious cases of conduct-based targeting; merely responding to overt cases of hostile conduct. Status-based targeting remains an important component of targeting in military operations because conduct-based targeting is simply too narrow a concept. Members of an organized armed group are “part of a structure whose aim is to inflict violence upon the state. [These members: JJS] might never play a direct part in hostilities (many, in fact, do not) but [they: JJS] hold the status of someone who can be targeted because of his membership in an organization whose function is to perform hostilities”.
24 Sivakumaran argues that “the ICRC Guidance unreasonably narrows the notion of membership in the military
wing of an armed group”. Instead he pleads for a combination of de facto and de jure membership into an organized armed group which in turn would cross the threshold of basing targeting authority on the status of membership in an organized armed group. De jure membership in an organized armed group requires an individual to be incorporated into the group through the ‘law’ of the non-state armed group. De facto members of the armed group are to show an “ongoing direct participation in hostilities, (..) an ongoing chain of
hostilities, with short periods of rest between them, (..) particularly if the periods of rest serve as preparation for the next engagement”. Sivakumaran, S. (2012). The Law of Non-International Armed Conflict. Oxford: Oxford University Press, p. 360. The notion of ‘organized armed groups’ will be further argued upon in paragraph 2.3.2.4 and membership within such groups will be further elaborated upon in paragraph 3.2.4.
13 Limiting the use of force by State armed forces to reactionary use of force only is a narrow way of reasoning and unnecessarily puts State armed forces at risk25.
1.3 Research question and sub-questions
The question that remains is to what extent status-based targeting, in light of the fundamental principle of distinction, is feasible and permissible within the legal limits in NIAC; assuming in this case that they live and operate to a large extent amongst the civilian population whose physical appearance closely resembles that of protected civilians in armed conflict. How does a member of an organised armed group look like? If State armed forces are willing to engage these organised armed groups how do you separate them from the ordinary civilians?
This leads to the primary research question this thesis is addressing.
What implications does the principle of distinction have for status-based targeting of members of organised armed groups in non-international armed conflict?
1.3.1 Sub-questions
The methodological approach in answering the above-mentioned research question is to first elaborate on two sub-questions which both form the body of this work. First, I will investigates the IHL principle of distinction in non-international armed conflict. In that specific context certain focal points will be discussed, such as the applicable legal framework, the status of civilian, what it entails to be a member of an organised armed group and how the principle of distinction approaches both groups of persons. Secondly, targeting in NIAC will be discussed. In that context, I will elaborate on the difference between conduct-based –and status-based targeting and provide an overview of the applicable targeting rules for this matter. Both sub-questions conclude with summarizing remarks.
• How does IHL cope with the principle of distinction in NIAC?
• With regard to engaging persons based on their status; what targeting rules are applicable in NIAC and how do these rules operationalise the principle of distinction?
1.4 Research goal
The goal of this thesis is to contribute to the comprehension of the principle of distinction and the targetability of members of organised armed groups in non-international armed conflict by
25 In discussing the restricted scope of the CCF concept of the IG-DPH, Maxwell argues that in view of the CCF
“in essence, the threshold to trigger the targetable status of membership in an organized armed group is extremely high and exceedingly narrow”. He illustrates his statement with an example considering the maker of Improvised Explosive Devices and a lone gunman. Where it is proven that the bomb maker is a member of an organized armed group, he does not conduct overt hostilities and so cannot be targeted based on his conduct. The lone gunman, who not necessarily has to be a member of an organized armed group, can be targeted because of one ambush in the operational theatre. This mode of reasoning would run counter to military reasoning of opposing belligerent parties.
14 investigating the implications of the principle of distinction for status-based targeting of these persons.
1.5 Research delimitation and assumptions
This thesis investigates the principle of distinction and its implications for the targetability of members of organised armed groups in NIAC. The current state of IHL will be highlighted with regard to that cornerstone principle and the law of targeting with its applicable part for this thesis. Secondly, no attention will be devoted to International Human Rights Law since it is assumed that within the context of an armed conflict, IHL is the primary legal regime governing targeting within the paradigm of hostilities.
The research investigates certain aspects of the applicable parts of IHL in NIAC. When looking at NIAC’s in the international arena one cannot conclude that there is such a thing as a ‘one-size-fits-all’ NIAC, however odd that may sound. Especially with regard to the principle of distinction there are a lot of different modalities to be found around the globe of this type of armed conflict. Members of the Revolutionary Armed Forces of Columbia (FARC) wear uniforms in their fight against State armed forces of Columbia, the same was applicable for the Tamil Tigers of Tamil Eelam in Sri Lanka. They too wore uniforms in their armed struggle against the armed forces of the Sri Lankan State. In both these instances there was, and in the case of Columbia there still is, a de facto NIAC pending. In contrast to these two examples this research focusses on those NIAC’s where members of organised armed groups are living and operating amongst the people. It will focus on those instances of NIAC where these organised armed group members do not wear distinctive uniforms and where the physical appearance of these members closely resembles that of the ordinary civilian population. A second assumption this research makes concerns conduct-based targeting as always providing for direct reactionary use of force by the State armed forces, where that individual who is presumed to be inoffensive is engaged in overt hostile conduct to friendly forces triggering targeting authority. Thus, status-based targeting in this research will entail the direct targeting of members of organised armed groups when they are not engaging in overt hostile conduct where it assumes that conduct-based targeting authority is triggered by overt hostile conduct of a civilian directly participating in hostilities.
15
The principle of distinction in NIAC
2.1 Introduction
This chapter will provide an answer to the first sub-question of this research: how does IHL cope with the principle of distinction in NIAC? In order to address this question §2 will first look at IHL in general and the type of armed conflict, not being of an international character, within which not only this sub-question but also the main research question is accommodated. Secondly, in the light of NIAC, §3 deals with and provides an overview of relevant actors, the applicable sources of international law in that type of armed conflict, introduces the notion of direct participation in hostilities and focusses on the concept of organized armed groups. The fourth paragraph elaborates upon the principle of distinction in NIAC and draws a comparison with international armed conflict. Finally §5 concludes with summarizing remarks and an answer to the first sub-question this thesis is addressing.
2.2 Armed conflict
2.2.1 What’s in a name
?
IHL de jure applies in times of armed conflict. As was stated in chapter 1, it is that body of public international law that regulates armed conflict. Interchangeable terms are used to denote this body of law: IHL, the Laws of Armed Conflict or jus in bello: the law in waging war26. Although this body of
law is noted by different names27 the aim of it remains clear and harmonious: it preserves
humanitarian values in armed conflict by on the one hand “protecting those who do not or no longer directly participate in hostilities” and on the other hand “limiting the right of the parties to the conflict to use armed force only to the amount necessary (..) to weaken the military potential of the enemy”28. This latter notion reflects the fact that the parties to the conflict cannot conduct their
hostilities in an unlimited manner without any boundaries. IHL is there to regulate these hostilities.
26 Kleffner, J.K. (2014). Scope of Application. In Fleck, D (Ed.). The Handbook of International Humanitarian law.
Oxford: Oxford University Press. p. 43.
27 Garry Sollis made a detailed observation when looking at the constituent documents of the International
Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The Rome Statute of the ICC clearly uses the term ‘international law of armed conflict’ in its art. 8(2)(e)(iii). The Statutes of the ICTY and the ICTR use the term ‘international humanitarian law’ in its art. 1. See: Sollis, G.D. (2010). The Law of Armed Conflict. International Humanitarian
Law in War. New York: Cambridge University Press, p. 22.
16 The material applicability, ratione materiae, of IHL rests upon the existence of an armed conflict. In the classical sense of the word this meant that there was a state of war between one or more states, but the term war is no longer in use and can thus be said to be outdated. The General Treaty for Renunciation of War as an Instrument of National Policy of 1928, also known as the Kellog-Briand Pact, was the last significant source of international law that made explicit references to the term war29. It received much criticism as the term war proved to be too ambiguous30. After the Second
World War the drafters of the Charter of the United Nations (hereinafter: UN Charter) made an explicit effort to address the shortcomings of the Kellog-Briand Pact. The now well know article 2(4) of the UN Charter, a central element of the jus ad bellum, prohibits states from “the threat or use of force in their international relations (..) against any state”. This prohibition “includes war, but the language transcends war and also covers forcible measures short of war”31. The main body of IHL
also does not mention the term war either. The four Geneva Conventions of 1949 and their Additional Protocols all use the term armed conflict. What is meant by the term armed conflict follows from case-law of the International Criminal Tribunal for the Former Yugoslavia (hereinafter: ICTY). In the Tadic-case32 the term was succinctly defined as meaning:
“a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”33.
This definition clearly contains two different types of armed conflict. The first part of the definition, “a resort to armed force between States”, refers to international armed conflicts (hereinafter: IAC)34. The second part, “protracted armed violence between governmental authorities and
29 In article 1 of the Pact the Contracting Parties agreed to “condemn recourse to war for the solution of
international controversies, and renounce it as an instrument of national policy in their relations with one another”. Cited from: Dinstein, Y. (2005). War, Aggression and Self-Defence. Cambridge: Cambridge University Press, p. 83.
30 The Commentary to Article 2 (1) of the Fourth Geneva Convention explains that the substitution of the term
war by the notion of armed conflict was deliberate, whereas “it is possible to argue almost endlessly about the legal definition of ‘war’, (..) the expression of ‘armed conflict’ makes such arguments less easy.” A state of armed conflict can exist “even when one of the Parties denies a state of war.” See: Pictet, J. (1952).
Commentary to the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Geneva: ICRC, p. 20.
31 Dinstein (2005), p. 85.
32 Prosecutor v. Tadic, IT-94-1, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction, 2 October 1995.
33 ICTY, Tadic, Appeals Chamber, para. 70. Sivakumaran notes the importance of this definition and “in the
years since it was adumbrated, it has been widely recited”. See: Sivakumaran, S. (2012). The Law of
Non-International Armed Conflict. Oxford: Oxford University Press, p. 166.
34 A broader perspective on the notion of IAC is provided for in Common arts. 2(1) and 2(2) to the 1949 Geneva
Conventions which describes IAC’s as ““(..) all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of
17 organised armed groups or such groups within a state”, refers to a central element of this research: non-international armed conflict: NIAC35.
The determination whether there is an actual armed conflict pending between states or within a state depends on the facts on the ground. The Commentary to article 2 of the Fourth Geneva Convention provides that “the occurrence of de facto hostilities is sufficient”36 to trigger the
applicability of the Convention in IAC. The commentary to article 2 of the First Geneva Convention adds that: “the Convention becomes applicable as from the actual opening of hostilities, (..) it makes no difference how long the conflict lasts, or how much slaughter takes place”37.
2.2.2 Apples and oranges?
The same line of facts-based reasoning cannot be said to apply one on one in NIAC. The creation of legal rules governing NIAC proved to be controversial from the start. At the Diplomatic Conference of 1949 under the auspices of the Swiss Federal Council, when reconsidering legal rules on the protection of civilians in times of armed conflict, several states took the stand that NIAC should not be governed by international law in the first place. There was a general fear of “giving insurgents a legal status, and consequently increased authority [which would: JJS] hamper and handicap the Government in its measures of legitimate repression”38. States were reluctant to allow an
infringement of their sovereignty39. Nevertheless, “a vast majority of states were in favour of
extending regulation to non-international armed conflict”40.
However, the mere occurrence of de facto hostilities within the confinements of a state’s boundaries would not be legally sufficient to determine the existence of a NIAC. Whereas the applicability of IHL
them, (..) all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.
35 Additional Protocol II provides for rules pertaining to NIAC’s where organised armed groups have acquired
significant control over parts of the territory of the state on which the armed conflict is pending. For Additional Protocol II to be applicable, next to ratification of the document by the state in question, a threshold has thus to be passed. The relevant part of the article reads as follows: A NIAC takes “place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. Sivakumaran makes a distinction between so-called Common Article 3 NIAC’s simpliciter and the more developed type of NIAC within the confinements of Additional Protocol II. See: Sivakumaran, 2012, p. 164.
36 Pictet, Commentary GC IV, 1952, p. 20,
37 Pictet, J. (1952). Commentary to the First Geneva Convention for the Amelioration of the Conditions of the
Wounded and the Sick in Armed Forces in the Field, Geneva: ICRC, p. 32.
38 Pictet, Commentary GC IV, 1952, p. 31.
39 As art. 3(1) of Additional Protocol II to the 1949 Geneva Conventions relating to the Protection of Victims of
Non-International Armed Conflict shows is that these legal rules shall not be invoked if that would harm “the sovereignty of a State, or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State”. Although this 1977 protocol was adopted some 26 years after the Geneva Conventions were adopted, the idea of state sovereignty was still of concern.
18 to an IAC can be triggered by a single event involving the armed forces of two or more states, for IHL to be applicable in NIAC two broad conditions have to be fulfilled. The above-mentioned Tadic-definition of both types of armed conflict, which was formulated in the Appeals Chamber of the ICTY, was applied in the Trial Chamber to the facts of that case41. To determine the existence of a NIAC
within the meaning of Common Article 3 to the Four Geneva Conventions of 1949 one has to look at the “intensity of the conflict and the organization of the parties to the conflict [in order to distinguish NIAC: JJS] from banditry, unorganised and short-lived insurrections, or terrorist activities”42.
The ICTY in the Tadic-case assessed the condition of intensity by referring to the fact that “there has been protracted, large scale violence”43 between the belligerent parties to the conflict44. Other
indicative factors for assessing this condition are “the type of weapons and other military equipment used; the number of persons and type of forces partaking in the fighting; the number of casualties [and: JJS] the extent of material destruction”45. In assessing the organizational criteria of the parties
to the conflict the ICTY looked at their command structure, the ability of the group to carry out operations in an organised manner, their level of logistical ability, the level in which they can implement rules of IHL and the ability to speak with a unified voice46.
2.3 NIAC
I made clear in the preceding paragraph that for a conflict to be typified a non-international armed conflict some conditions had to be met and although the applicable legal regime in NIAC is more limited than that applicable in IAC “the evolution of conventional and customary international humanitarian law has brought about a tangible approximation between the law of international and non-international armed conflicts”47. Still, some important questions cannot be set aside lightly.
Who for example are bound by the international humanitarian legal rules pertaining to NIAC? What status do the different parties to the conflict actually have? Specifically who are protected by IHL from the harms and dangers of the armed conflict? Who can legally be targeted and under what
41 Prosecutor v. Tadic, IT-94-1-T, Opinion and Judgment, 7 may 1997: para. 562. 42 ICTY, Tadic, Trial Chamber, para. 562.
43 ICTY, Tadic, Appeals Chamber, para. 70.
44 The ICTY in the Haradinaj-case confirmed the fact that the ICTY in the Tadic-case “interpreted the term
‘protracted armed violence’ to refer to the ‘intensity of the conflict’“. See: ICTY Prosecutor v. Haradinaj, (IT-04-84-T), Judgement, 3 April 2008: para. 40. For an extensive overview of criteria in helping to determine the existence of a NIAC see Pictet’s commentary to Common Article 3 of the Four Geneva Conventions. Pictet, Commentary GC I, 1952, p. 49 – 50.
45 ICTY, Haradinaj, Judgement, para. 49.
46 ICTY Prosecutor v. Ljube Boskosi and Johan Tarculovski, Judgment, 10 juy 2008, Case No. IT-04-82-T,
paras. 199 – 203.
47 Kleffner, 2014 , p. 51. Although this statement is largely true for the conduct hostilities, there is still a gap
between the applicable legal regimes in both forms of armed conflict when it comes to the absence of the combatant status in NIAC and the law of occupation as applicable only in IAC.
19 circumstances? This paragraph tends to provide an overview of possible answers and perspectives on some of these stringent questions that crave for clarification.
2.3.1 Sources
It is fair to say that the applicable legal regime governing NIAC is somewhat more limited than that which is applicable in IAC. Common Article 3 to the Four Geneva Conventions of 1949, as the first source of treaty-based law, mirrors this limited scope of legal rules48. As Fleck argues: “The article
was deliberately confined to a few minimum rules which would receive the widest scope of application. This limitation in substance enabled states to avoid a more specific definition of the scope of application which otherwise would have been controversial”49.
Some similar thoughts can be shared about the applicability of Additional Protocol II to the Geneva Conventions of 1949 and relating to the protection of victims of non-international armed conflict (hereinafter: AP II). Its applicability is limited to those situations of NIAC where organised armed groups, in their hostilities against the State’s armed forces, operate under responsible command and “exercise such control over a part of [the State’s: JJS] territory as to enable them to carry sustained and concerted military operations and to implement this protocol”50. The standards of this protocol
are thus limited to those situations where organized armed groups exercise everyday control over parts of the territory of a State51.
A third source52 of legal rules governing NIAC is customary International Humanitarian Law. As was
made clear by the ICTY in the Tadic-case: “What is inhumane and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife”53. This does not mean
that those treaties governing IAC are equally part of the law governing NIAC by way of customary IHL. There are significant gaps in overlap between the laws applicable in IAC and NIAC. A prime example being the non-existent status of combatant and the combatant’s privilege in NIAC. On the other hand
48 Art. 3 (1) GC I-IV for example basically provides that those persons who are not taking or no longer taking an
active part in hostilities shall be treated humanely under all circumstances and the second paragraph of that article repeats the ‘humane treatment’ position of its first paragraph: that the wounded and sick shall be collected and cared for.
49 Fleck, D. (2014). The Law of Non-International Armed Conflict. In Fleck, D (Ed.). The Handbook of
International Humanitarian law. Oxford: Oxford University Press. p. 587.
50 Art. 1(1) AP II.
51 Notwithstanding the question whether or not that state in question has ratified AP II. Next to that, Murphy
argues that, because of the high threshold for AP II to be applicable, it is “a good example of the unwillingness of states to be governed by international law in their internal conflicts with rebel groups”. See: Murphy, 2012, p.17.
52 There are other perhaps less well-known sources of law which are (partly) applicable in NIAC such as: the
1980 Convention on Certain Conventional Weapons, the 1998 Statute of the International Criminal Court (see for example art. 8(2)(e) ICC Statute); the 1997 Ottawa Convention banning anti-personnel land mines; the 1993 Chemical Weapons Convention; and the 1954 Hague Convention for the Protection of Cultural Property and its 1999 Second Protocol. This list was partly taken from: Schmitt, Garraway & Dinstein, 2006, p. 2, 3.
20 fundamental rules such as the prohibition of attack on civilians, the obligation to respect the fundamental guarantees of civilians and persons hors de combat and the obligation to respect and protect medical and religious personnel are both applicable in IAC as well as in NIAC54.
2.3.2 Terms and clarifications
The main focus of this research runs through the field of applicable IHL in NIAC. In order not to lose sight of that focus, some clarifications of terms and notions that are of explicit relevance in NIAC need to be made. A pressing question is: who qualifies as a party to the conflict within the meaning of Common Article 3 as referred to above and who qualifies as a protected person in NIAC? Each party to the conflict is bound to apply the provisions of that article in order to protect those “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat '”55 from the harms and dangers of armed conflict. Who are
these persons and based on what status are they protected in armed conflict?
2.3.2.1
Civilians
Common Article 3 does not mention the term ‘civilian’. Instead it provides for “persons taking no active part in hostilities”56 as the group of persons in armed conflict who shall be treated humanely
under all circumstances. That group also contains “members of armed forces who have laid down their arms and those placed hors de combat”57. It is therefore not sufficient to look at Common Article 3 in unravelling the meaning of the term ‘civilian’ in NIAC.
AP II does refer to the concept of ‘civilian’, although no definition of the term is provided in it. Art. 13 AP II clearly provides general protection to “the civilian population and individual civilians (..) against the dangers arising from military operations”58. They cannot be made “the object of attack [and: JJS]
acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”59. The customary status of this basic principle of IHL mirrors the
importance of these protections and prohibitions as IHL in general revolves for a significant part around the protection of the civilian population60. Article 13 AP II does for that reason not only apply
54 Henckaert, J. (2005). Study on Customary International Humanitarian Law: A contribution to the
understanding and respect for the rule of law in armed conflict. International Review of the Red Cross, vol. 87 nr. 857. Pp. 173 – 213, p. 188.
55 Art. 3 Common to the Four Geneva Conventions of 12 August 1949. 56 Art. 3 (1) GC I-IV.
57 Ibid.
58 Art. 13(1) AP II. Although this article only applies when the high threshold as explained above in §2.3.1 is
passed and the state in question has ratified the protocol, the protection of civilians as described in this article reflects a customary status. See rule 6 of the Customary IHL Study by the ICRC which reads: “Civilians are protected against attack unless and for such time as they take a direct part in hostilities”.
59 Art. 13(2) AP II.
60 Rule 1 of the Customary IHL Study reads as follows: “The parties to the conflict must at all times distinguish
21 in high spectrum NIAC’s, but also to those conflicts to which only Common Article 3 would apply. But, for a clear meaning of the term ‘civilian’ AP II seems to be insufficient as well and one therefore has to consult customary international humanitarian law.
Rule 1 of the Customary IHL Study, applicable in both types of armed conflict, conceptualizes “the principle of distinction in non-international armed conflict in analogy to the law in international armed conflict”61. It distinguishes between combatants, giving this term a generic meaning, and
civilians, where the former group of persons “do not enjoy the protection against attack accorded to civilians”. In that sense a line can be drawn “between those members of organised armed groups who assume fighting functions on an ongoing basis (‘fighters’) and all others (‘civilians’)”62.
So, in NIAC a civilian can ultimately be described as a person who is not a member of “the armed forces, dissident armed forces or other organized armed groups”63.
Furthermore, the concept of civilian can be separated into two broad categories of persons: those civilians who on a sporadic basis do take a direct part in hostilities and thereby lose the general protection afforded to civilians and those who do not, thereby retaining their protection afforded by IHL. Both these two categories of persons have the status of civilian, where the former group only loses its protection accorded to civilians in times of armed conflict for such time as the act of DPH lasts64.
directed against civilians”. The term combatant is used in this rule as a generic term, aiming at the fact that the term ‘combatant’ does not exist in the law of NIAC, meaning those persons “who do not enjoy the protection against attack accorded to civilians”. This rule is applicable in both IAC and NIAC. Henckaerts & Doswald-Beck, 2009, p. 3.
61 Kleffner, J.K. (2007). From ‘Belligerents’ to ‘Fighters’ and Civilians Directly Participating in Hostilities – On the
Principle of Distinction in Non-International Armed Conflict One Hundred Years after the Second Hague Peace Conference. Netherlands International Law Review. Vol. 54 (2). Pp. 315 – 336 at p. 336.
62 Kleffner, 2007, p. 336.
63 In this determination the author of this thesis follows the approach taken by Schmitt, Garraway & Dinstein in
their manual on the law of NIAC. See: Schmitt, Garraway, & Dinstein, 2006, p. 5. It is important to note here that medical and religious personnel of the armed forces or other organized armed groups are not regarded as fighters by the Manual, being persons who are not civilians, and are subjected by special protections unless for such time as they DPH. This rule is provided for in articles 12 and 15 AP I and is established as a rule of
customary IHL. See rules 25 and 27 of the Customary IHL Study. Henckaerts & Doswald-Beck, 2009, p. 79 – 86 and 88 – 91.
64This is also being argued upon by way of referring to the concept of the ‘revolving door’. The IG DPH provides
that “civilians lose and regain protection against direct attack in parallel with the intervals of their engagement in direct participation in hostilities”; Melzer, 2009, p. 70. The concept of DPH thus refers to specific hostile acts and IHL restores civilian protection each time the engagement of such a specific act ends.
22
2.3.2.2
Fighters
In light of the definition of NIAC provided by the ICTY in the Tadic-case and article 1 (1) of AP II65
three categories of possible participants to a NIAC are of relevance for this research: State armed forces, dissident armed forces and (other) organised armed groups. Although the term is nowhere to be found in treaties, contemporary literature has come to depict these categories as ‘fighters’66.
Civilians taking a direct part in hostilities on a mere sporadic and spontaneous basis lose their protection afforded by IHL for such time as the individual engages in that act. For the sake of coherency of argumentation that individual is also termed a fighter, knowing that he remains a civilian, but has lost his protection afforded to civilians who do not DPH.
2.3.2.3
Dissident armed forces
Dissident armed forces are those possible participants in NIAC that have broken away from the regular State armed forces. “Although members of dissident armed forces are no longer members of State armed forces, they do not become civilians merely because they have turned against their government”67. The fact that these forces do not become civilians means that they are, like the
ordinary State’s armed forces, targetable at all times and do not have the general protection afforded to civilians68.
2.3.2.4
Organized armed groups
Not as straightforward as the description of dissident armed forces and the “near universal consensus”69 surrounding this category of persons are (other) organised armed groups70. The exact
65 The ICTY described a NIAC in the Tadic-case as “a resort to armed force between States or protracted armed
violence between governmental authorities and organized armed groups or between such groups within a State”. Art. 1(1) AP II provided that a NIAC takes place “in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups.”
66 See for example: Schmitt, 2012, p. 120 and Fleck, 2014, p. 591. Schmitt describes State armed forces,
dissident armed forces and members of organized armed groups equally as “opposition fighters”. See: Schmitt, 2012, p. 120.
67 Melzer, 2009, p. 32. Cited from: Schmitt, M.N. (2012). The Status of Opposition Fighters in Non-International
Armed Conflicts. In: Watkin, K. & Norris, A.J. (eds.). Non-International Armed Conflict in the Twenty First
Century. International Law Studies Volume 88. Naval War College: Newport, p. 124.
68 Schmitt, 2012, p. 125. 69 Schmitt, 2012, p. 125.
70 Nowadays it is “generally accepted” that IHL binds (members of) organized armed groups. See: Kleffner, J.K.
(2011). The applicability of International Humanitarian Law to Organized Armed Groups. In: Bernard, V. et al. (eds.). Understanding Armed Groups and the Applicable Law. International Review of the Red Cross. Vol. 93 (882). Pp. 258 – 578, at p. 443. Nevertheless, it remains an entirely different question why these groups are bound by IHL. Sivakumaran explains the bindingness of IHL in NIAC to organized armed groups in terms of the “legislative jurisdiction” theory. Because of the fact that a government legislates within the confinements of its territory it does so “not just on behalf of the state, but also on behalf of all individuals” within that state. Therefore, when a state ratifies a treaty, Additional Protocol II or the Geneva Conventions for example, it does not only bind the state but also all its nationals. See: Sivakumaran, S. (2006). Binding Armed Opposition Groups.
International and Comparative Law Quarterly. Vol. 55 (2). Pp. 369 – 394, at p. 382. Zegveld confirms this
perspective by arguing that armed groups can be bound by IHL “as de facto authorities in a particular territory” or, when these groups lack authority over state territory, they are bound by IHL because they are “inhabitants
23 legal status of this group, membership within such groups71 and the directly related (permanent)
notion of direct participation in hostilities is the object of intense scholarly debate72, especially the
CCF as elaborated upon in the introductory chapter73. The Customary IHL Study makes equally clear
that “practice is ambiguous as to whether members of armed opposition groups are considered members of armed forces or civilians”74.
Nevertheless, scholarly literature has brought forward some valuable perspectives on the notion of ‘organized armed group’. The difficulties in formulating a definition of ‘organized armed group’ finds its origins in “the wide diversity of such groups and the complexity of contemporary warfare”75. This
can be illustrated by the organizational criterion flowing from the Tadic-definition of NIAC which “specifically [refers to: JJS] the organization of the armed group”76. Sivakumaran observes that
“armed groups tend to be organized along two lines”77. They are either organized via a pyramidal
structure equal to State armed forces and have clearly defined chains of command or they are
of the state that has ratified the relevant conventions”. Either way, Common Article 3 binds the groups as that article is bound to be applied by each party to the conflict. See: Zegveld, L. (2002). The Accountability of Armed
Opposition Groups in International Law. Cambridge: Cambridge University Press, p. 15, 16.
71Membership within organized armed groups, as was touched upon shortly in paragraph 1.2.1, will be
discussed in more detail in paragraph 3.2.4.
72For some critical evaluations of the IG DPH see: Watkin, K. (2010). Opportunity Lost: Organized Armed
Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guidance. New York University Journal of
International Law and Politics. Vol. 42. Pp. 641 – 695; Schmitt, M.N. (2010).Deconstructing Direct Participation
in Hostilities: The Constitutive Elements. New York University Journal of International Law and Politics. Vol. 42. Pp. 697 – 739; Boothby, B. (2010). “And for such time as”: The Time Dimension to Direct Participation in Hostilities. New York University Journal of International Law and Politics. Vol. 42. Pp. 741 – 768; Hays Park, W. (2010). Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise and Legally Incorrect. New York University Journal of International Law and Politics. Vol. 42. Pp. 769 – 830.
Melzer has commented on all four of these critiques in: Melzer, N. (2010). Keeping the Balance between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities. New York University Journal of International Law and Politics. Vol. 42. Pp. 831 – 916. Schmitt wrote a second critical analysis of the IG DPH in: Schmitt, M.N. (2010). The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis. Harvard National
Security Journal. Vol. 1. Pp. 5 – 44;
73 Regarding the CCF, the critical evaluations of the IG-DPH generally focus on the restrictive scope of the CCF. It
would for example limit loss of civilian protection solely to members of organized armed who perform a CCF for that group, thereby excluding other members of that group which in turn would create an unbalance since the equivalent of these ‘other’ members of organized armed groups in State armed forces do not have civilian protection. The debate on this topic will be more elaborated upon in paragraph 3.3.1.
74 Henckaerts & Doswald-Beck, 2009, p. 17.
75 Bernard, V. (2011). Editorial: Understanding Armed Groups and the Law. In: Bernard, V. et al. (eds.).
Understanding Armed Groups and the Applicable Law. International Review of the Red Cross. Vol. 93 (882). Pp.
258 – 578, at p. 262.
76 Sivakumaran, 2012, p. 170. In making this statement Sivakumaran observes that generally “the state’s armed
forces are presumed to meet the requisite level of organization”.
