Modalities Governing the Loss of Protection of the Civilian
Status in Non-International Armed Conflicts under
International Humanitarian Law
Jeannine Pigeon
Thesis LL.M. Public International Law, Faculty of Law of the University of Amsterdam Supervisor Professor Dr. T.D. Gill
Once it was believed that when the cannons roar, the laws are silent. Today everybody knows better.
Contents
Contents... I List of abbreviations...II
1. Introduction ... 1
2. Preliminary considerations on the non-international armed conflict ... 4
3. The constitutive elements of direct participation in hostilities ... 5
3.1 Introduction ... 5
3.2 Threshold of harm ... 6
3.2.1 Harm of a specifically military nature... 6
3.2.2 Inflicting death, injury, or destruction on persons or objects protected against direct attack ... 7
3.3 Direct causation... 7
3.3.1 Defining direct causation ... 7
3.3.2 Temporal and geographical proximity ... 9
3.4 Belligerent nexus... 9
3.5 Conclusion... 10
4. Membership in armed forces ... 11
4.1 Introduction ... 11
4.2 The alternative concepts of membership in armed forces... 12
4.3 The Membership in State armed forces... 13
4.4 Determination of the membership in “dissident armed forces” ... 13
4.5 The membership in other organized armed groups ... 14
4.5.1 Qualification of other organized armed group and the notion of organization ... 14
4.5.2 The status of members of other organized armed groups ... 16
4.5.3 The continuous combat function ... 17
4.6 Conclusion... 19
5. The temporal loss of civilian protection... 20
5.1 The beginning of DPH ... 20
5.1.1 Preparatory measures ... 20
5.1.2 The ending of DPH ... 22
5.2 The incidental loss of protection and the concept of the “revolving door”... 23
5.3 The continuous loss of protection ... 24
5.3.1. Members of armed groups and State armed forces ... 24
5.3.2. Civilians repeatedly directly participating in hostilities... 25
5.4 Conclusion... 27
6. Voluntary human shields as modality of loss of the civilian protection? ... 29
6.1 Introduction ... 29
6.2 Prohibition against human shields... 30
6.3 Voluntary shielding: An act of direct participation in hostilities? ... 31
6.4 Consequences of a qualification of DPH for the civilian participating in a voluntary human shield ... 34
6.5 Conclusion... 35
7. Conclusions ... 36
List of abbreviations
AP I Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977
AP II Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977
Art Article
CUP Cambridge University Press
DPH Direct Participation in Hostilities
FARC Revolutionary Armed Forces of Colombia
GC Geneva Convention
IED Improvised explosive device
IHL International Humanitarian Law
IRRC International Review of the Red Cross
HIS Involuntary human shield
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the former Yugoslavia
KLA Kosovo Liberation Army
LOIAC Law of International Armed Conflict LONIAC Law of Non-International Armed Conflict LTTE Liberation Tigers of Tamil Eelam
MJIL Melbourne Journal of International Law NATO North Atlantic Treaty Organization
NYUJILP New York University Journal of International Law and Politics
OUP Oxford University Press
Para Paragraph
PKK Kurdistan Workers' Party
POW Prisoners of War
1. Introduction
It is ‘one of the primary purposes of international humanitarian law […] to protect the victims of armed conflict’.1
Civilians are non-combatants and defined in Article 50 (1) of Additional Protocol I2 to the Geneva Conventions of 12 August 1949 (hereinafter: AP I). Inherent to the civilian status is the general protection of the civilian population and individual civilians against dangers arising from military operations as stated in Article 51 (1) AP I. Furthermore Article 51(2) AP I determine that the civilian population as such, as well as individual civilians, shall not be the object of attacks.
The above mentioned protection is granted unless and for such time as civilians do not take a direct part in hostilities3 and as a result there is ‘a distinction between civilians who never take part in hostilities and civilians who do so on a temporary and individual basis, without being part of an organized armed group’.4
In non-international armed conflicts the rules are vague. Common Article 3 to the Geneva Conventions is the only provision dedicated to it. It does refer to persons taking active part in hostilities and to such which are not. The latter enjoy protection and the distinction indicates that on the persons’ role in hostilities and not its status the focus lays.5 Neither the terms combatant or civilian nor the term armed forces are clarified or defined.
Furthermore the Additional Protocol II to the Geneva Conventions of 12 August 1949 (hereafter: AP II) states in its Article 1 (1), referring to its field of application, that it ‘shall apply to all armed conflicts which are not covered by [Additional Protocol I] and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups’.6 Beyond the mere concern of the field of application no reference is made regarding the terms ‘state armed forces’, ‘dissident armed forces’ or ‘other organized armed groups’7
Even though ‘civilians’ and ‘civilian population’ is not defined, Article 13 (3) AP II uses the exact same wording as Article 51 (3) of AP I and ‘similarly implies the distinction is premised on whether or not a person participates in hostilities’.8
In a six-year process the International Committee of the Red Cross (ICRC) elaborated the ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’. It is a result of ‘informal research and expert consultation’9 which seeks to clarify three key legal questions: Firstly it reviews who is considered a civilian for the purposes of the principle of distinction, secondly it reconsiders what conduct amounts to
1
Melzer N ‘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’ (2010) 42 NYUJILP
[hereinafter: Melzer ‘Keeping the Balance’] 833.
2 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I) of 8 June 1977 [hereinafter: Additional Protocol I].
3 AP I (n2).Article 51(3).
4 Moneta F ‘Direct Attacks on Civilians and Indiscriminate attack as War Crimes’ in F Pocar M Pedrazzi and
Frulli M (eds) War Crimes and the Conduct of Hostilities (Edward Elgar Publishing Cheltenham 2013) 61.
5
Ibid.
6 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts (Protocol II) of 8 June 1977 [hereinafter: Additional Protocol II] Art 1 (1).
7 Moneta ‘Direct Attacks on Civilians and Indiscriminate attack as War Crimes’ (n4) 62. 8
Ibid.
direct participation in hostilities and lastly it researches what modalities govern the loss of protection against direct attack.10
The Interpretive Guidance is not a legally binding text and serves as an interpretation within legal parameters. It is not the ICRC’s’ intention to adjust or change the existing law.11
Even though it evolved through discussions and meetings with a group of legal experts with consensus achieved on many legal questions, the concluded interpretations and provided responses are expressions in the views of the ICRC and it is not an implicit reflection of the participating experts’ majority opinion or of a unanimous view.12 Consequentially, some issues remained controversial and after the publication of the Interpretive Guidance, a number of experts disclosed their critiques on it.
This thesis aims to contribute to the discussion on selected controversial issues on the topic of the loss of protection of the civilian population and individual civilians against direct attack. The main subject and points to be discussed in this thesis, will be the loss of the general protection to the civilian population, and individual civilians against direct attack by becoming a member of organized armed groups or via direct participation in hostilities themselves. To do so, the membership approach of organized armed groups, the time dimension in direct participation in hostilities shall be reconsidered. Voluntary human shields shall serve as a prime example, where the membership approach and the time dimension shall be applied on.
The applicable legal framework shall be analysed with due regard to the sources of international law and shall draw upon international treaties, customary international law, general principles of law, judicial decisions, scholarly doctrine and soft law instruments. The main research question is as follows:
Under which circumstances do civilians lose the general protection against direct attack in non-international armed conflicts?
In order to answer the above question, the leading questions which shall be addressed are: • Under which criteria can an act be qualified as direct participation in hostilities? • What is “membership” in an organized armed group and what does the “continuous
combat function” mean?
• What is the temporal scope of loss of protection?
• What does the “revolving door” of civilian protection mean and how is it compared to a continuous loss of protection?
• Does “human shielding” qualify as direct participation and in what way is the membership approach or the time dimension applicable to it?
The structure of the thesis is as follows:
A brief overview shall be given to begin with on the question how a non-international armed conflict is defined. The second chapter is designed as an introduction and shall address the Articles and criteria decisive for the determination of the term non-international armed conflict.
10 See Melzer N ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International
Humanitarian Law’ (ICRC 2009) [hereinafter Interpretive Guidance] 13.
11
Ibid 6.
Information about the constitutive elements of direct participation in hostilities, threshold of harm, direct causation and belligerent nexus, shall be examined in Chapter 3.
The loss of protection by ceasing to be civilian altogether, the alternative concepts of “membership” in armed forces, its general concept, the membership in an organized armed group, the distinction between regular and irregular armed forces and the “continuous combat function” will be discussed in the fourth chapter.
In chapter 5 the temporal loss of civilian protection, the beginning and ending, the incidental loss of protection and the concept of the “revolving door” as well as the continuous loss of protection shall be reviewed and the possible methods of resolution discussed.
Lastly voluntary human shields shall be given attention and the question be answered if they qualify as direct participation or not and in what way the membership approach or the time dimension would be applicable to it.
The end of each chapter shall provide a preliminary conclusion in which the subject matter shall be evaluated. A final conclusion shall furthermore be given in chapter six. In this final, concluding chapter, justification shall be given to the research question, as well as a view to future developments.
2. Preliminary considerations on the non-international armed conflict
Legally speaking, no other types of armed conflict exist, apart from the two types which international humanitarian law (IHL) distinguishes between; international armed conflicts and non-international armed conflicts.13 The former consists of two or more States.14 Non-international armed conflicts must be analysed on the basis of Common Article 3 to the Geneva Conventions and Article 1 of the Additional Protocol II.
Common Article 2 to the Geneva Conventions refers to armed conflicts not of an international character in which hence at least one of the involved parties is not governmental.15 The conflict can occur therefore between governmental forces and non-governmental armed groups or between non-governmental groups only. Common Article 3 to the Geneva Conventions more over distinguishes between conflicts which are building a certain threshold of intensity from other form of violence from internal tensions or disturbances. The threshold is reached if two criteria are met. Both cannot be described in abstract terms. Assessment factors on a case-by-case basis are considered for the qualification of the threshold of intensity. To meet the first criteria the violence has to reach certain intensity, which can be indicated through the duration of conflict, the nature of weapons or the territorial control.16 In order to fulfil the second criterion the parties involved have to feature a minimum level of organization17, which will be discussed in more detail in chapter 3 of this thesis. Lastly the armed conflicts must occur on the territory of one of the States which is Party to the Geneva Conventions.18
The field of application defined by Additional Protocol II is of a more limited nature. Article 1 (1) AP II dictates that the non-governmental armed groups are ‘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.’19 Even though a degree of organization of the armed groups is also presumed by Article 3 common to the Geneva Conventions, controlling a part of a territory is not stipulated. It is hence possible that conflicts are failing within the field of application of common Article 3 to the Geneva Conventions but not of the Additional Protocol II. The criterion of territorial control and its degree can differ widely case by case. In general terms, territory claimed controlled by armed groups is territory which escapes the government armed forces’ control.20 The Commentary to Additional Protocol II states furthermore that ‘there must be some degree of stability in the control of even a modest area of land for them to be capable of effectively applying the rules of the Protocol’.21 It will not be dealt further with the higher thresholds of Additional Protocol II since this thesis focuses on the status of the participants and not, or only marginally, with the law that applies to conflict itself.
To conclude, an armed conflict is of a non-international character, if the conflict arises between governmental forces and governmental armed groups or between non-governmental groups only, on the territory of a State to the Geneva Conventions, which
13 International Committee of the Red Cross Opinion Paper ‘How is the Term "Armed Conflict" Defined in
International Humanitarian Law?’ (2008) 1.
14
International Committee of the Red Cross, Geneva Conventions of 12 August 1949 Common Art 2.
15 Vite S ‘Typology of armed conflicts in International humanitarian law: legal concepts and actual situations’
(2009) 91 IRRC 75.
16 Ibid 76. 17
Ibid 77.
18 International Committee of the Red Cross, Geneva Conventions of 12 August 1949 Common Art 3. 19 AP II (n6) Art 1 (1).
20 Sandoz et al. (eds.) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949 (Geneva ICRC 1987) [hereinafter Commentary to the Additional Protocols] §4467.
reaches a minimum level of intensity and a minimum of organisation is shown by the parties which are involved in the conflict.
3. The constitutive elements of direct participation in hostilities
3.1 Introduction
The notion of direct participation in hostilities originated from common Article 3 to the 1949 Geneva Conventions which provides that persons taking no active part in the hostilities shall in all circumstances be treated humanely.22
Direct participation in hostilities is not defined in international humanitarian law treaties, neither does State practice or international jurisprudence do so.23 Nonetheless the notion can be found in many provisions of international humanitarian law.24
The Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (hereinafter Interpretive Guidance) of the International Committee of the Red Cross (ICRC) seeks the clarification of the notion of direct participation25 and states the following: ‘The notion of direct participation in hostilities refers to specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict.’26 Two components, “hostilities” and “direct participation”, are hereby included.
Even though the word “hostilities” is used repeatedly by the Geneva Conventions and their Additional Protocols they do not contain a particular definition.27 The term is primarily used in a more restrictive way than just as a synonym for armed conflict28, characterizing ‘acts of violence by a belligerent against an enemy in order to put an end to his resistance and impose obedience’29.
The second element, “direct participation” evolved from the negative formulation of common Article 3 of the Geneva conventions30 and “participation” ‘refers to the (individual) involvement of a person in hostilities’31.
Defining direct participation in hostilities developed trough discussions and expert meetings.32 The Commentary on the Additional Protocols, which states that ‘direct participation in hostilities implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place’,33 proved to be useful since the proposals of factors, presented by the members of the expert group, defining direct participation in hostilities, varied widely. 34
22
Quéguiner J F ‘Direct participation in hostilities under IHL’ (Working Paper, Program on Humanitarian Policy and Conflict Research at Harvard University November 2003) 1.
23 Interpretive Guidance (n10) 41. 24 Ibid 12.
25
Ibid 12.
26 Ibid 43.
27 Quéguiner ‘Direct participation in hostilities under IHL’ (n22) 1. 28 Ibid 2.
29
Verri P ‘Dictionary of the International Law of Armed Conflict’ (ICRC 1992) 57.
30 Common Article 3 (1) of the Geneva Conventions states: ‘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 by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.’
31 Interpretive Guidance (n10) 43.
32 See Schmitt M N ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (2010) 42
NYUJILP 709 - 712.
33
Sandoz ‘Commentary to the Additional Protocols’ (n20) §1679.
One result of these discussions was that the ICRC proposed in the Interpretive Guidance the “constitutive elements”, three cumulative criteria which must meet to qualify a specific act as direct participation in hostilities: threshold of harm, direct causation and a belligerent nexus. These criteria will be separately discussed in the following subchapters.
3.2 Threshold of harm
The threshold of harm is one of the three constitutive elements which have to be fulfilled for an act being qualified as direct participation. The element of threshold of harm is one example of the balance international humanitarian law has to find between military necessity and humanitarian considerations.35
A materialization of harm is not required though. The mere likelihood that an act will result in harm in means that it reasonably can be expected with respect to the prevailing circumstances and attains a certain threshold is sufficient for the qualification of an act as direct participation.36 It makes clear that there is no need to anticipate the harm materializing.37 In order to reach the required constitutive element, the Interpretive Guidance states that the harm either constitutes harm of a specifically military nature or constitutes harm to protected persons or objects.38 Both will be briefly separately discussed.
3.2.1 Harm of a specifically military nature
It is one of the fundamental ideas of international humanitarian law that those engaging in acts which are harmful to the enemy will lose the entitlement to protection from attack.39
The threshold of harm requirement is generally satisfied if harm is caused or can be reasonably expected if it is of military nature albeit of a certain quantitative gravity.40 Schmitt calls the choice of the term “threshold” in this context unfortunate since it actually refers to a quantitative concept.41
The Interpretive Guidance recommends further that military harm should not only include ‘infliction of death, injury, or destruction on military personnel and objects, but essentially any consequence adversely affecting the military capacity of a party to the conflict’42 and further provides examples for harm beyond the killing and wounding as sabotage or restriction or disturbance of deployments, logistics and communications. 43
On the other hand, positively affecting a military operation or capacity through a conduct of a civilian cannot be interpreted as harm of a specifically military nature. Examples the Interpretive Guidance gives are the refusal to collaboration as informant, scout or lookout by a civilian. 44
35
Ibid 713.
36 Interpretive Guidance (n10) 47.
37 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n32) 724. 38 Interpretive Guidance (n10) 47.
39
Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n32) 714.
40 Ibid. 41 Ibid 716. 42 Interpretive Guidance (n10) 47. 43 Ibid 48. 44 Ibid 49.
3.2.2 Inflicting death, injury, or destruction on persons or objects protected against
direct attack
If specific acts do not constitute military harm it can meet the requirement if it is inflicting death, injury, or destruction. Attacks directed against civilians and civilian objects are hereby the most uncontroversial examples.45
Article 49 (1) of AP I defines attacks as ‘acts of violence against the adversary, whether in offence or in defence’. The inclusion of harm to protected persons and objects by the Interpretive Guidance can be justified by referring to the before mentioned definition since these acts have to be “against the adversary” and the definition thus specify the belligerent nexus of the attack and not the target itself.46
The Interpretive Guidance furthermore provides examples of acts which are not qualifying as direct participation in hostilities because the threshold of harm would not be met the kind and degree which would be required for such a qualification if the act does not constitute military harm. Examples given are the interruption of necessities of life or fence or roadblock building.47
3.3 Direct causation
The second constitutive element which has to be fulfilled is the ‘direct causal link between a specific act and the harm likely to result’.48 The fact that participation in hostilities has to be “direct” involves that “indirect” participation is possible as well, implicating that a loss of protection against direct attacks would not be its consequence.49
3.3.1 Defining direct causation
According to the Interpretive Guidance a ‘sufficiently close causal relation between the act and the resulting harm’ has to exist so that an act can actually qualify as “direct” participation in hostilities.50 The particular terms “direct” or “indirect”, to clarify the distinction, have to be brought in connection with “causation of harm”. If in “one causal step” an individual conduct can be brought to the harm in question, the causation would be direct, so the Interpretive Guidance. “One causal step” is unfortunately not further defined or legally justified. The Interpretive Guidance solely provides examples of conducts which are indirect causing harm and hence not fulfil in one causal step requirement.51 The meaning of “one causal step” is confusing since it cannot be interpreted as interaction in a single step between act and impact.52 According to Melzer the “one causal step” component has to be understood to distinguish direct and indirect causation, not only for individual acts, but also for collective operations.53 Schmitt names in this context the example of the gathering tactical intelligence on the battlefield, which is on the one hand undeniable direct participation but is, on the other, not affecting the hostilities in one single causal step and would therefore, in his interpretation of the Interpretive Guidance, not constitute a direct participation in hostilities.54 Schmitts’ suggestion is insofar correct as that the activity does not harm the enemy in one causal step,
45
Interpretive Guidance (n10) 49.
46 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n32) 723. 47 Interpretive Guidance (n10) 50. 48 Ibid 51. 49 Ibid. 50 Ibid 52. 51 Ibid 53.
52 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n32) 728. 53
Melzer ‘Keeping the Balance’ (n1) 866.
but gathering tactical intelligence would constitute a preparatory measure55, which would be integral to the operation which would follow to it and which would than again designed to harm the enemy in one causal step and therefore would again qualify as direct participation in hostilities.56
Moreover a second criterion for the determination of the directness of an act is introduced by the Interpretive Guidance; the “integral part” component.57 In collective operations, as for example in attacks carried out by unmanned aerial vehicles, a number of persons are involved whose activities, in isolation, not directly cause harm in one causal step. The requirement of direct causation would however still be fulfilled if the activity of those person would constitute an ‘integral part of a concrete and coordinated tactical operation that directly causes [the required threshold of] harm’.58 Unfortunately the Interpretive Guidance is limiting the criterion “integral part” to situations of collective operations, even though it is a much more useful standard according to critics.59 It is argued that the “integral part” test alone should have been employed for the determination of the directness of an act. Not only because the fighters and combatants involved in armed conflicts may be able to distinguish better if an act constitutes an integral part of a military operation or not, that they can apply the one causal step juridical test in practice on the battlefield. But also because of the very reason, that a second criterion had to be introduced to expand the “one causal step” component and therefore the notion of direct causation, reveals the weakness of the former, since in collective operation the harm may not be caused in one causal step by all individuals participating, even though they are deeply involved in the operation. 60 It follows the conclusion to replace the “one causal step” component entirely and replace it with the “integral part” criterion alone, the concept ‘satisfactorily and sufficiently encompasses the essence of direct causation on the battlefield regardless of whether the act occurs as part of an operation mounted by a group or by an individual’.61 Melzer does not agree and states that it is by no means satisfying and sufficient to use the “integral part” test without the “one causal step” criterion, which defines direct participation, but ‘rather leaves operational forces without any reliable guidance as to the distinction between “direct” and “indirect” participation in hostilities’.62 It is not further illustrated on which precise grounds the dissenting opinion is base on but only referred that the critique on the Interpretive Guidance seems to be based on a misunderstanding on the interaction of the two components.63
The author agrees with Schmitt, that the constitutive element of direct causation on first sight seems too restrictive. The introduction of the “integral part” component seems to widen up the notion of direct causation, but its limitation to collective operations seems somehow misplaced. Schmitt defends this position with the example of the purchase, smuggling of components for the composition of an improvised explosive device (IED) or the storage of such. The planting or detonation of an IED would inevitably cause direct harm, the purchase or smuggling of its components of the storage of an IED in contrast are connected with the harm through an uninterrupted causal chain of events, but would not cause direct harm. If actionable intelligence is received that an assembly of an IED is underway, it would be, absurd to delay the attack only because the storage does not cause harm directly. The very nature of IEDs is the concealed use and only an immediate attack may offer the opportunity to
55 Preparatory measures will be discussed more in detail in chapter 5. 56 Melzer ‘Keeping the Balance’ (n1) 867.
57 Interpretive Guidance (n10) 51. 58
Ibid 54-55.
59 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n32) 729. 60 Ibid 729-730.
61 Ibid 729. 62
Melzer ‘Keeping the Balance’ (n1) 867.
defeat the following use and therewith the operation itself. Since the assembly or storage can be classified as integral part of the ensuing use of IEDs an attack would be justified.64 Since the storage, purchase and smuggling of IEDs by an individual neither constitutes a collective operation nor fulfils the “one causal step” requirement, an attack would not be justified and seems, in the authors’ opinion as a too restrictive approach of the direct causation element of direct participation in hostilities.
However it is not desirable to approach the problem with an “uninterrupted causal chain” component, which would constitute the far other end of an extremely permissive approach. According to the Interpretive Guidance such an uninterrupted causal chain of events would not be sufficient to connect the act and its consequences.65 The example which follows is precisely the IED case elaborated above. As construed the storage of IEDs would be justified as an integral part of the operation and, in the authors’ view, would not tolerate ‘essentially any act connected with the resulting harm though a causal link’66 as summed up by Melzer. I however do agree with Melzer that, if the element of direct causation would be subject to an extreme relaxation, the abuse and arbitrariness could be a subsequent consequence, which in any case should be avoided. The Interpretive Guidances’ recommendations are presented by the ICRC to ensure that those entitled of humanitarian protection under international humanitarian law receive it.67 In the light of this purpose and the complex circumstances of warfare, the “one causal step” requirement may seem too restrictive in first place but it surely provides a reliable criteria to distinct between direct and indirect participation and therewith ensures a wider going protection of civilians only indirectly participating.
Referring to the IED case, it has to bear in mind, that direct participation in this case is not excluded by the very fact of the direct causation element, since it may still be qualified as preparatory measure of an act, which will be discussed in more detail in chapter 5 of this thesis.
3.3.2 Temporal and geographical proximity
Although the phrases ‘sufficient causal relationship between the act of participation and its immediate consequences’68 and ‘direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place’69 in the Commentary of the Additional Protocols seem to implicate that the consequences of an act have to occur instantaneously after the act, the Interpretive Guidance points out that no requirement of coincidence between the causal proximity and the temporal or geographical is needed.70 Examples are amongst others delayed weapons-systems, as mines, or remote-controlled missiles and unmanned aircraft attacks. Regardless of the temporal or geographical proximity the employment and the harm remain direct concerning its causal relationship.71
3.4 Belligerent nexus
The last constitutive element of the three requires that the specific act must specifically be ‘designed to [inflict harm] in support of a party to an armed conflict and to the detriment of another’72 and is the least controversial.73 If consequently an act does not harm a party to the
64 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n32) 731. 65 Interpretive Guidance (n10) 54.
66 Melzer ‘Keeping the Balance’ (n1) 868. 67
Interpretive Guidance (n10) 7.
68 Sandoz ‘Commentary to the Additional Protocols’ (n20) §4787. 69 Ibid 516 (§1679).
70 Interpretive Guidance (n10) 55. 71
Ibid.
armed conflict or does not support another party it does not constitute “participation” in hostilities. Examples are an ordinary bank robbery during an armed conflict. Even though the threshold of harm would be fulfilled in such a bank robbery, the act would not be designed to harm a party of the conflict or support another and therefore would lack the belligerent nexus. Schmitt argues that the presumed zero-sum game, the harm to one party and the benefit of another, is not entirely satisfying in light of the possibility that an individual may as well be opposed to both sides. Preferably, in his opinion, the Interpretive Guidance would formulate the phrase as ‘in support of a party to the conflict or to the detriment of another’74 so as to the two elements would not be cumulative. The problem evolves from such an alternative formulation would be, that those conducts which would be unrelated to the conduct of hostilities could be amounted as direct participation and military attacks against those persons carrying out the specific conduct would be permitted. Persons participating in civil unrest, for example political demonstration or riots, which can attain a high level of violence and meet the required threshold of harm, are mostly not designed to support a party against another of the armed conflict, but anyway could be attacked, if the element of belligerent nexus would be rephrased as suggested by Schmitt. Hostilities are ‘acts of violence by a belligerent against an enemy in order to put an end to his resistance and impose obedience’75 and in order to directly participate in hostilities, an individual has inevitably to be part of on the armed conflict between belligerents parties and therefore, an act has to be both ‘in support of one belligerent party and to the detriment of another’.76 If it would be not a “zero-sum game”, as Schmitt refers to it, the act would not be a participation in hostilities, unless it would be sufficiently intense and further organized to meet the requirement for a separate, independent armed conflict.77
Above all, international humanitarian law does not ‘permit categorizing persons as legitimate military targets without positively identifying them as members of a belligerent’s fighting forces or as otherwise directly participating in hostilities occurring between parties to a pre-existing or newly arising conflict’78 and the attack on the persons participating in a civil unrest as in the case mentioned before, would not permitted as long as it was not designed to support a party to an armed conflict against another.79
Belligerent nexus is further an objective criterion and therefore not influenced by subjective intent. Consequentially the nature of the act itself is fundamental and not the intention of the individual performing the act. In that account the general civilian protection against direct attack even can be lost if civilians are forced to participate directly in hostilities or children which have not yet reached the lawful recruitment age?80
3.5 Conclusion
Through the assessment of the three above specified constitutive elements, it is possible to distinguish between acts which do not cause a loss of protection against direct attack and such constituting a direct participation in hostilities and consequently entail the loss of protection. According to the before said, in order to consider a civilian directly participating in hostilities, the civilians’ act
73 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n32) 735. 74 Ibid 736.
75
Verri ‘Dictionary of the International Law of Armed Conflict’ (n29) 57.
76 Melzer ‘Keeping the Balance’ (n1) 873. 77 Ibid.
78 Melzer ‘Keeping the Balance’ (n1) 874. 79
Interpretive Guidance (n10) 63.
(1) ‘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 destruction on persons or objects protected against direct attack’81, hence met the threshold of harm requirement,
(2) must there be ‘a direct causal link between a specific act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part’82, hence met the direct causation requirement, and
(3) ‘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’83, hence met the belligerent nexus requirement.
Schmitt notes that the three constitutive elements prove ‘the most satisfactory’, that ‘the Interpretive Guidance is superior to the various ad hoc lists’84 and that the deficiencies of the guidelines lie at the margins only.85 Even though several phrases and formulations were criticized as elaborated above, the notion of the three cumulative constitutive elements is broadly accepted and constitutes a reasonably broad description of direct participation.86
4. Membership in armed forces
4.1 Introduction
The first attempt to codify instructions on the laws of war are made by Francis Lieber, a professor of Columbia College in New York, who prepared the Instructions for the Government of Armies of the United States in the Field87 in 1863, during the American Civil war. In its Article 155 he states that “All enemies in regular war are divided into two general classes - that is to say, into combatants and non-combatants, or unarmed citizens of the hostile government”. It is not as simple anymore concerning the modern warfare but essentially it remains true that the battlefield consists of combatants and others.88
The term “combatant” however is neither used by common Article 3 to the Geneva Conventions nor by the Additional Protocol II referring to non-international armed conflicts. A reasonable explanation thereof can be the fact that with the combatant status combatant privileges arise, such as that they become prisoners of war if they fall in the adverse party’s hands or that for the taking part in hostilities they are not punishable.89 Bothe chose the term “fighters” instead to avoid the notion of “combatant” which is, according to him ‘a terminology which correctly reflects the remaining difference between international and non – international conflicts’.90 To the term “fighters” will be adhered to in this thesis as well. The terms “civilian”, “armed forces” and “organized armed group” are used in the context of non-international armed conflicts without further defining them. The category “civilians” is not mentioned in Common Article 3 of the Geneva Convention but it is adopted in Article 13
81 Interpretive Guidance (n10) 47. 82 Ibid 51.
83
Ibid 58.
84 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (n32) 738. 85 Ibid 739.
86 Solis G D The Law of Armed Conflict (CUP 2010) 205. 87
Lieber F ‘Instructions for the Government of Armies of the United States in the Field’ 24 April 1863 [hereinafter Lieber Code] art 155.
88 Solis G D The Law of Armed Conflict (CUP 2010) 187.
89 Bothe M ‘Direct Participation in Hostilities in Non-International Armed Conflict’ (Expert Paper ICRC 2004) 3
ff.
Additional Protocol II which addressed the protection of the civilian population. Unfortunately no definition is offered.
The participants to a non-international armed conflict, concluded from the Additional Protocol II and the Common Article 3, are civilians and organized armed groups. While the civilians consist of two groups, those who are participating directly in hostilities and those who are not, the organized armed groups are subdivided in State armed forces, dissident armed forces and “other” armed groups.91
While it is the function of these armed forces, dissident armed forces and “other” armed groups ‘to carry out sustained and concerted military operations’92, general protection against effects and dangers arising from such operations shall be enjoyed by the civilian population and the individual civilians, unless self participating directly in hostilities.93
The armed force of a State party is subsequently described as “State armed forces” meanwhile the term “organized armed group” is referring to the armed forces of a non-State party to the conflict, which includes dissident armed forces and other armed groups, corresponding to the Interpretive Guidance.94
The classification of the status of the participants is crucial for the determination if an attack on an individual during a conflict with non-international character is prohibited or not under the law of armed conflict. If it is not prohibited, ‘the harm to an individual within [a particular classified] group plays no role in proportionality calculations (except as military advantage) and need not be considered when determining the precautions that attackers are required to take during attacks to avoid harming civilians.’95
In the following subchapters the concept of membership of armed forces shall be considered. Firstly the alternative concepts of membership in armed forces shall be clarified, furthermore the membership in State armed forces shall be elaborated and finally the question answered what “membership” in an organized armed group exactly means, through which criteria such membership can be defined and which problems are related to it.
4.2 The alternative concepts of membership in armed forces
Armed forces can be constituted regularly or irregularly. If regularly established, the membership is based on formal criteria namely according the applicable regulations of the respective State, hence on domestic law. The formal concept of membership cannot be devolved to armed groups which are irregularly constituted, even if fighting for the State party, since they generally do not presuppose a formal enrolment according to the national legislation. If armed forces in contrast are constituted irregularly, the membership is not based on a formal but rather on a functional criterion which is relating to the ‘de facto exercise of continuous combat function’.96
91
Schmitt M N ‘The Status of Opposition Fighters in a Non - International Armed Conflict’ in Watkin K and Norris A J (eds) Non-International Armed Conflict in the Twenty-first Century (2012) 88 Naval War College Naval War College International Law Studies [hereinafter N ‘The Status of Opposition Fighters in a Non - International Armed Conflict’] 120.
92
AP II (n6) Art 1 (1).
93 See AP II (n6) Art. 13.
94 Watkin K ‘Opportunity Lost: Organized Armed Groups and the ICRC Direct Participation in the. Hostilities
Interpretive Guidance’ (2010) 42 NYUJILP [hereinafter Opportunity Lost] 654.
95
Schmitt ‘The Status of Opposition Fighters in a Non - International Armed Conflict’ (n91) 121.
4.3 The Membership in State armed forces
The term “State armed forces” was intended to be understood in a broad sense and should not only include armed forces which are qualified as an army in the national legislation but rather as well armed actors which are not covered by the specific domestic definition, such as ‘national guard, customs, police forces or any other similar force’.97 Both, regular armed forces and other armed forces or units are hence included by the term “State armed forces” under Additional Protocol II, while the latter must be ‘organized under a command
responsible to the State’.98
Domestic law is generally defining the membership in State armed forces, concerning regular armed forces. Members are hence; generally integrated in permanent units and wear uniforms, insignia and equipment by which they can be distinguished from non-members.99 The
membership in a regular State armed force de facto excludes the general civilian protection for the purposes of the principle of distinction and in regard to the mutual exclusiveness of the concepts of civilian, State armed groups and organized armed groups, as for long as the individual does not cease the membership. With a cessation, disengagement from active duty and the reintegration into civilian life, the civilian protection is restored.100
4.4 Determination of the membership in “dissident armed forces”
Members of dissident armed forces were once employed in State armed forces but turned against their government. Solely on this reason its members’ status is not becoming one of a civilian. As long as the dissident armed forces ‘remain organized under the structures of State armed forces to which they formerly belonged’ their membership is governed in the same way and structure. 101 Based on which reasoning such a “same structure” is no longer selfsame, is not further discussed by the Interpretive Guidance. However, the mere fact, that individuals once have been member of State armed forces is not sufficient for the qualification as members of dissident armed forces. Deserters, former members of State armed forces, are not becoming civilians who are directly participating in hostilities or member of another organized armed group just because they do not remain with their unit.102 Dissident armed forces, moreover, are at all times targetable, like State armed forces. This is based on a ‘near-universal consensus’103, as Schmitt is calling it, under the law of armed conflict (LOAC). In other words, the attack on dissident armed forces does not constitute a violation under international humanitarian law. Common Article 3 is confirming this statement, since members of dissident armed forces are not qualified as ‘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’104. Members of regular armed forces and members of regular armed forces in rebellion against the State qualify as “armed forces” in armed conflicts with non-international character.105 Militia and volunteer corps are included in the concept of armed forces in international armed conflict106 and the inclusion of such into non-international armed
97 Sandoz ‘Commentary to the Additional Protocols’ (n20) §4462. 98 Interpretive Guidance (n10) 31. 99 Ibid. 100 Ibid. 101 Interpretive Guidance (n10) 32. 102
Schmitt ‘The Status of Opposition Fighters in a Non - International Armed Conflict’ (n91)124.
103 Ibid 125.
104 Common Art 3 Geneva Conventions.
105 Sandoz et al. (eds.) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949 (Geneva ICRC 1987) [hereinafter Commentary to the Additional Protocols] §4460.
conflict is reasonable if they are qualifying as part of the State’s or of the dissident armed forces.107
If State armed forces lose their formal status as State agents due to a replacement of the government which they served by another, they may either become dissident armed forces or an organized armed group.
Quaddafi’s forces were an example for State armed forces which lost their power and transform into opposition, at least if the Transitional National Council of Libya was recognized as legitimate government for the period it was governing.108
4.5 The membership in other organized armed groups
The opposing party to the State armed force, if existent, is the non-State party, also referred to as organized armed group. As mentioned above, dissident armed forces and other armed groups are included by the term “organized armed groups”. To protect the civilian population accurately it is, according to the Interpretive Guidance, from upmost importance to ‘distinguish a non-State party to a conflict and its armed forces’109 since not only fighting forces but as well supportive segments are part of non-State parties of the conflict. However, “organized armed groups” are to be understood in a functional sense, that means, solely as the non-States’ party armed or military wing.110
4.5.1 Qualification of other organized armed group and the notion of organization
Since in non-international armed conflict, an armed conflict and situations of internal tensions, like sporadic acts of violence or riots, have to be distinguished, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) introduced in the Tadić case a differentiation and stated that ‘armed conflict exists whenever there is 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.’111 As mentioned before, the threshold of intensity, which distinguishes for example riots from armed conflicts, is reached if two criteria are met; a certain intensity of the violence and a minimum level of organization.112To qualify as an organized armed group, two criteria have to be fulfilled, as the term itself implies; groups namely have to be organized and armed.
First, concerning the organized criterion, an existence of a responsible command is required.113 It is not required that a similar hierarchical system to that of regular armed forces is existing but rather that it is of the organizations’ capability ‘of planning and carrying out sustained and concerted military operations and […] of imposing discipline in the name of a de facto authority’.114 While assessing the requirement of responsible command, a careful evaluation on the planning of an actual completion of attacks would be essential and not solely the fact of frequent occurrences of violations of international humanitarian law.115
107 Schmitt ‘The Status of Opposition Fighters in a Non - International Armed Conflict’ 125. 108
Ibid 126.
109 Interpretive Guidance (n10) 32. 110 Ibid.
111 Prosecutor v. Tadić, (Appeal Chamber Decision) IT-94-1-AR72 (2 October 1995) [hereinafter Tadić case]
para 70.
112 Vite S ‘Typology of armed conflicts in International humanitarian law: legal concepts and actual situations’
(2009) 91 IRRC 76.
113 Art 1 Additional Protocol I. 114
Sandoz ‘Commentary to the Additional Protocols’ (n20) §4463.
Evaluating the level of organization of the Kosovo Liberation Army (KLA), the Trial Chamber of the ICTY held in the Limaj case that the degree of organisation by the parties which is sufficient to establish an armed conflict needs to be the same as the ‘responsibility of superiors for the acts of their subordinates within the organisation.’116 While assessing factors ‘including the existence of headquarters, designated zones of operation, and the ability to procure, transport, and distribute arms’117 the ICTY concluded, that the KLA ‘sufficiently possessed the characteristics of an organised armed group, able to engage in an internal armed conflict’118. Amongst others the Trial Chamber indentified that an organisational structure and hierarchy was supported by the “Provisional Regulations for the Organisation of the Army’s Internal Life” of the KLA (KLA Regulations)119, which established ranks and defined duties.120 Further the Chamber accepted the evidence of the division of the territory of Kosovo in seven zones, which were commanded by the KLA and featured fluid level of organisation and development.121 Moreover the Trial Chamber found, that the KLA units had the capacity to coordinate their actions,122 that a military police within the KLA was established,123 and that they recruited new members, which were provided with military training and weapons124. The KLA made use of uniforms; most of them were foreseen with badges upon which the allegiance could be identified. The use of them was of varying nature; some had self-made, some had no uniform at all. Even though uniforms are a factor which can indicate a well-organized entity, it is not a determinative factor, so the ICTY argues.125
No single factor therefore is for itself determinative to determine whether a group in question is qualifying as an organized armed group or not. The ICTY came to a similar conclusion in the case of Ramush Haradinaj, a former officer and leader of the Kosovo Liberation Army, and stated, that ‘Trial Chambers have relied on several indicative factors, none of which are, in themselves, essential to establish whether the “organization” criterion is fulfilled’126 and lists factors which can be indicative for the fulfilment of the organization criterion.127
The Tadić case and Limaj case are suggesting two elements which are indispensable in context of the notion of organization. Firstly, the organization of organized armed groups has to indicate a structure which features organs and must have a system which allows an allocation of authority and responsibility and, moreover, its members should be subject to internal rules of discipline.128 It follows, that a strict hierarchy or a formalistic implemented structure is just as unnecessary as the need to ‘have explicit ranks, wear distinctive emblems, operate from established bases or recruit in a particular fashion.’129 A group of individuals which is directly participating in hostilities against a State can, however, not be a qualified as
116 Prosecutor v. Limaj (Judgment) IT-03-66-T (30 November 2005) [hereinafter Limaj case] §89. 117 Ibid para 90. 118 Ibid para 134. 119 Ibid para 98 - 110. 120 Ibid para 111. 121 Ibid para 95. 122 Ibid para 108 - 110. 123 Ibid para 113 - 117. 124 Ibid para 118 - 122. 125 Ibid para 123.
126 Prosecutor v. Haradinaj (Judgement) IT-04-84-T (3 April 2008) [hereinafter Haradinaj case] para 60. 127 ‘Such indicative factors include the existence of a command structure and disciplinary rules and mechanisms
within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords.’ Haradinaj case (n126) para 60.
128
Bothe ‘Direct Participation in Hostilities in Non-International Armed Conflict’ (n89) 14.
an organized armed group. The entity “organized armed group” should have a certain degree of control over its members’ activities, must be able to enforce compliance with the law of armed conflict under international humanitarian law and opposite belligerent parties should be able to label the entity as “enemy” in the light of war strategies and tactics.130 Furthermore the actions of the organized armed group must be coordinated and the group should be able to act as a collective; ‘plan and execute group activities, collect and share intelligence, communicate among members, deconflict operations and provide logistic support to combat operations’131. If for example several individuals have the same target but operate irrespectively of each other, they do not act as an organized armed group because they lack the minimal requirement of organization and further do not operate as a collective.
Secondly, to qualify as an organized armed group, the group has not only to fulfil a certain degree of organization, but in fact, as the term already implies, has to be armed as well. When a group is carrying out attacks, ergo ‘violence against the adversary’132, it is a logical consequence that they have to be armed. It is though not necessary that all members of an organized armed group are armed, since in practice numerous members will not have a violent function. It is hence important that the basis of the act of violence is the group intention.133 Concerning groups which are participating in hostilities without carrying out attacks, the acts, as far actually constituting DPH, can be qualified as armed as long it is the purpose of direct participating in hostilities. As example serves a specific group with the purpose of collecting tactical intelligence, which than again is used for specific attacks by other groups.134
Moreover, if groups are divided in subgroups, not the whole group is qualifying as organized armed groups but only those engaging in hostilities. As for example Hamas consist of armed and non-armed parties, so does Hezbollah. Only the armed party would qualify as an organized armed group as stated above.135
Through these minimal requirements of organization, a sort of “permanence” can be attributed to the status of a “fighter” of an organized armed group, whose membership in the entity is than again a precondition to actually be qualified as a fighter.136
4.5.2 The status of members of other organized armed groups
It was for long unclear, whether members of other organized armed groups ‘compromise groups directly participating in hostilities or constitute a separate category of "non-civilians."’137
The Interpretive Guidance disapproves the approach that membership in organized armed groups would simply constitute a continuous form of civilian participation in hostilities. Namely the principle of distinction would thereby be undermined because it would create a situation where the entire armed force would actually remain part of the civilian population and would extend the direct participation in hostilities beyond just specific acts as discussed in chapter 1 of this thesis.138 Further, according to Common Article 3 of the Geneva Convention and Additional Protocol II, the Interpretive Guidance states that ‘civilians, armed forces, and organized armed groups of the parties to the conflict are mutually exclusive
130 Ibid 129 - 130. 131 Ibid 130.
132 AP I (n2) Article 49 (1). 133
Schmitt ‘The Status of Opposition Fighters in a Non - International Armed Conflict’ (n91) 131.
134 Interpretive Guidance (n10) 33.
135 Schmitt ‘The Status of Opposition Fighters in a Non - International Armed Conflict’ (n91) 132. 136 Bothe ‘Direct Participation in Hostilities in Non-International Armed Conflict’ (n89) 14. 137
Schmitt ‘The Status of Opposition Fighters in a Non - International Armed Conflict’ (n91) 127.
categories also in non-international armed conflict.’139 Members of organized armed groups are thus not civilians and the extending civilian protection is not applicable to them.140
Membership in organized armed groups is not regulated by domestic law. Differences to regular armed forces may be that they do not invariably express their membership with uniforms or cards for identifications, do not operate from fixed bases and classic military tactics are seldom employed.141 In addition the situation gets even more complex since members of organized armed groups have to be distinguished from civilians, which may carry weapons in context of self-defence and thus look alike.142
The distinction between an organized armed group and civilians is hence rather difficult due to its informal structures and the various factors of incorporation. Because domestic law provisions are missing and the fact of uniform wearing can not solve the question who among the members of organized armed groups may be attacked, when not directly participating in hostilities, the organized armed group must have an explicit and defining criterion for its individuals whose function are, to take part in hostilities on their behalf.143 Therefore another and quite restrictive criterion was adopted by the Interpretive Guidance called the “continuous combat function”,144 which is defined as ‘continuous function for the group involving [the individuals] direct participation in hostilities.’145
The accedence to such groups can further be based on different reasons as, according to the Interpretive Guidance, ‘individual choice […], involuntary recruitment, [… or] traditional notions of clan or family’.146
4.5.3 The continuous combat function
In IHL treaty law the term and concept of continuous combat function can not be found147 but it was ‘necessitated by the twentieth century reinvigoration of terrorism, combined with twenty-first century weaponry’148 to introduce the concept.
Since, as mentioned before, the concept of “organized armed groups” is to be understood in a strictly functional sense; its membership is depended on the individuals’ performance and function which correlates to the conduct of hostilities on behalf of the organized armed group as a whole, and thereby on behalf of a belligerent party.149 The individual has further a lasting connection with the organized armed group in question. Only those who have such a continuous combat function are attackable at any time150 as long as their membership in the organized armed group they are engaging in lasts.151 However, an entitlement to the combatant privilege de jure is not a consequence of the continuous combat function.152 The prisoner of war status, if captured or the immunity from domestic prosecution for lawful acts of war are hence not afforded to members of organized armed groups.
139
Ibid.
140 Schmitt ‘The Status of Opposition Fighters in a Non - International Armed Conflict’ (n91) 128. 141 Ibid 132.
142 Ibid 132. 143
Solis The Law of Armed Conflict (n86) 205.
144 Watkin ‘Opportunity Lost’ (n89) 655. 145 Interpretive Guidance (n10) 33. 146 Ibid.
147
Watkin ‘Opportunity Lost’ (n94) 655.
148 Solis The Law of Armed Conflict (n86) 205. 149 Melzer ‘Keeping the Balance’ (n1) 846.
150 Sandoz ‘Commentary to the Additional Protocols’ (n20) §4789. 151
Schmitt ‘The Status of Opposition Fighters in a Non - International Armed Conflict’ (n91) 132.
Functions which can be assumed to be “continuous combat functions” are, according to the Interpretive Guidance, ‘the preparation, execution or command of acts or operations amounting to direct participation in hostilities’.153 Recruited, trained and equipped by an organized armed group, continuous combat function can even be assumed before the first hostile act is carried out, if the result is to continuously and directly participating in hostilities on behalf of that group. The function thus coercively involves the direct participation in hostilities and individuals with an accompanying or supportive function are not members of the organized armed group within the meaning of international humanitarian law and thus remain civilians, even if they are affiliated with the group and their contribution provide substantial support in prospect of the conflict. 154
The previous discussion raises the question how, in practice, members of organized armed groups can be identified. The Interpretive Guidance notes, that ‘in practice, the principle of distinction must be applied based on information which is practically available and can reasonably be regarded as reliable in the prevailing circumstances.’155 The open demonstration of a continuous combat function in wearing uniforms or certain weapons potentially form an indication but likewise conclusive behaviour may suggest a possibility that a ‘continuous function rather than a spontaneous, sporadic, or temporary role’156 can be assumed. If wearing a uniform is reflective of integration in an organized armed group, as it is for member of State armed forces, is however not answered.157 Uniforms or specifiable insignias are, however, frequently worn in practice. Most of the KLA soldiers had uniforms with badges through which their incorporation could be identified, albeit they were of varying nature.158 The Revolutionary Armed Forces of Colombia (FARC) also began in the 1960s with the accoutrements of an army and its members wear uniforms and insignia.159 As are members of the Liberation Tigers of Tamil Eelam (LTTE) and the Kurdistan Workers' Party (PKK) wearing uniforms, although they wear civilian clothes when engaging in occasional acts of urban terrorism. On the contrary the FARC guerrillas are wearing the uniforms more likely in such occasions.160 They can be said to be distinguishable from civilians and the concerns, concerning the distinction between members of organized armed groups and civilians, may, in the light of the before said, overstated. Practically it can even be said that it is in many cases ‘a relatively simple matter to discriminate between civilians and members of armed groups.’161 In case of any doubt Article 50 (1) AP I provides the general customary rule, not only for international but as well for non-international armed conflicts, that persons should be considered as civilians if it is not clear which status he or she has.162
Through the criterion of the continuous combat functions members of State armed forces and organized armed forces are treated unequally. While performing logistic functions, a member of an organized armed group cannot be the target of an attack, whereas a member of State armed forces would be a lawful target.163 In fact the attack would constitute a war crime if conducted on a member of an organized armed group who does not qualify for continuous 153 Ibid. 154 Ibid 34 ff. 155 Ibid 35. 156 Ibid.
157 Watkin ‘Opportunity Lost’ (n94) 656. 158 Limaj case (n116) para 123
159 Rabasa A/ Chalk P Colombian Labyrinth: The Synergy of Drugs and Insurgency and Its Implications for
Regional Stability (RAND 2001) 24.
160 Hudson R A ‘The Sociology and Psychology of Terrorism: Who becomes a Terrorist and why?’ (Federal
Research Division Library of Congress 1999) 62.
161 Schmitt ‘The Status of Opposition Fighters in a Non - International Armed Conflict’ (n91) 133. 162
AP I (n2) Art 50 (1).
