The problems facing the principle of
distinction in international
humanitarian law due to the changing
nature of armed conflict – the effects of
an increasing ‘civilian’ population on
the battlefield for this principle
Thesis
The problems facing the principle of distinction in international humanitarian law due to the changing nature of armed conflict – the effects of an increasing ‘civilian’ population on the battlefield for this principle
Table of contents
I. Introduction……… 3
II. The principle of distinction……… 6
III. An increase in civilians on the battlefield……….. 12
IV. Private Military Companies and the Principle of Distinction…. 16 A. Combatant status……… 18
B. Civilian status………. 19
C. Possible solutions………... 23
V. Voluntary human shields ……… 27
A. Regulation of human shields under IHL………... 28
B. The problems that voluntary human shields create for the principle of distinction………. 31
C. VHS and Combatant status………. 34
D. Possible solutions……… 34
I. Introduction:
Warfare is an ‘ever-evolving phenomenon’1. Changes in the global geopolitical structure coupled with advances in technology have led to an increase in the involvement of civilians in armed conflicts both as perpetrators and victims2. ‘The end of the Cold War changed the global bipolar and state-centric security system’3. A decline in inter-state wars followed4. The stability created by superpower domination decreased5. A ‘raft of new security threats began to appear after 1989, many involving emerging ethnic or internal conflicts’6. As a result ‘the majority of armed conflicts since the end of the Cold War have been non-international’7. The role that civilians play in warfare is becoming ‘increasingly important and complex’8.
Modern conflicts have seen a change in the nature of fighting forces9. Whilst in international armed conflicts armed forces may be said to ‘continue to predominate, there are an increasing number of armed groups and even individuals who involve themselves in hostilities’10. The number of ‘non-state actors with the ability to challenge and potentially disrupt world society [have] began to increase in number, power, and stature’ for example local warlords, terrorist networks, international criminals11. Such wars against non-state armed groups are often referred to as
‘asymmetric conflicts’ ‘due to the fact that the State often enjoys superior technology, training and manpower’12. This frequently leads to non-state actors attempting to re-balance the scale by blending in with the civilian population in order to force the more powerful force to fight a war of attrition13.
The post-Cold War era also saw many States downsizing their military forces14. As a result of advances in technology the significance of quantitative superiority was greatly reduced15. In the 1990s alone ‘the world’s armies shrank by more than 6 million personnel’16. The complexity of weaponry and the cost of maintaining
1 MN Schmitt, Essays on Law and War at the Fault Lines, (T.M.C. Asser Press, Springer 2012), p132 2 See the discussion in A Wenger and S JA Mason, ‘The civilianization of armed conflicts: trends and implications’, International Review of the Red Cross, Vol. 90 No 872 (December 2008); P.W. Singer, ‘Corporate Warriors: The Rise of the Privatized Military Industry and Its Ramifications for
International Security’, International Security, Vol. 26, No. 3 (Winter, 2001-2002), pp. 186-220 (The MIT Press); MN Schmitt, Essays on Law and War at the Fault Lines, (T.M.C. Asser Press, Springer 2012)
3 A Wenger and S JA Mason (n2) p. 838-841
4 See the discussion in A Wenger and S JA Mason (n2) pp. 837- 5 ibid p. 838
6
P.W. Singer (n2) pp. 186-220 (The MIT Press) p.193 7 A Wenger and S JA Mason (n2) p. 841
8 ibid p. 846
9 C Garraway, ‘The Changing Character of the Participants in War: Civilianization of Warfighting and the Concept of “Direct Participation in Hostilities”’, 87 Int'l L. Stud. Ser. US Naval War Col. 177 2011 p. 179
10 ibid p. 179
11 P.W. Singer (n2) pp. 186-220 (The MIT Press) p. 193 12
TA Keck, ‘Not All Civilians Are Created Equal: The Principle Of Distinction, The Question Of Direct Participation In Hostilities And Evolving Restraints On The Use Of Force In Warfare’, 211 Mil. L. Rev. 115 2012, p. 115
13 ibid p. 123 14
See the discussion in P.W. Singer (n2) pp. 186-220
15 See the discussion in A Wenger and S JA Mason (n2) pp. 838-840 16 P.W. Singer (n2) p. 193
military personnel have led to the contracting out of many support functions17. The increased reliance by the military on civilian support is not however the only effect that advances in technology has had on the civilian population. Advances in
technology have also led to dramatic turns in the effect that warfare has on civilians and their property18 in general, for example at the height of the Cold War the advent of nuclear weaponry saw entire populations ‘held hostage to the threat of counter-value targeting’19.
The increasing presence of civilians in armed conflicts impedes International
Humanitarian Law’s (‘IHL’) ability to limit the effect of armed conflict by protecting ‘people who are not or who are no longer participating in hostilities’20. IHL ‘is a set of rules’21 consisting of several core principles, of which the principle of distinction is one of the most important. The principle of distinction ‘requires states to distinguish between combatants and military objectives on the one hand, and non-combatants and civilian objects on the other, and to direct their attacks only against the former’22. The increased number of actors within the battle space however makes this distinction harder to make. Combatants alone are allowed to directly participate in hostilities under IHL, although civilians have always contributed to the war effort. Civilians have, for example, contributed through the supply of goods and services or through economic, administrative and political support. These activities have usually remained removed from the battlefield. However the changing nature of the battle zone and the increased engagement of civilians, in more closely related military activities, has led to a blurring of the lines between those who are and those who are not participating in hostilities.
As the combat zone becomes more densely populated with civilian actors the ability to clearly delineate between participants and non-participants in hostilities is being hindered, making the principle of distinction harder to apply in the field. As stated in the International Committee of the Red Cross (‘ICRC’) interpretive guidance on the notion of direct participation in hostilities, there is an importance not only in
distinguishing between civilians and the armed forces, but also those who do or do not take a direct part in hostilities within these groups23. The ICRC has made many
attempts to clarify where the line between those directly participating in hostilities and those that are not lies in order to make the principle of distinction easier to apply in the face of the changing nature of armed conflict24. However despite these attempts much debate surrounds the issues facing the principle of distinction. Much of the civilian participation in the war effort may be said to operate in the grey areas of IHL,
17 C Garraway (n9) pp. 178-179
18 MN Schmitt, Essays on Law and War at the Fault Lines (n1) p. 132 19 MN Schmitt, Essays on Law and War at the Fault Lines (n1) p. 132 20
International Committee of the Red Cross, advisory service on international humanitarian law, what
is international humanitarian law
21 International Committee of the Red Cross, advisory service on international humanitarian law, what
is international humanitarian law
22
ME O’Connell, ‘Historical Development And Legal Basis’, in Dieter Fleck (ed), the Handbook on
International Humanitarian Law, (Oxford University Press 2014), p. 36
23 N Melzer, ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’, (International Committee of the Red Cross May 2009), p.12
24
see for example N Melzer, ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’, (n23) and J Pictet et al., ‘Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949’ (Geneva 1987)
they do not neatly fall into the legal category of combatant, yet their efforts raises the question as to whether or not they may be the subject of attack.
This paper will examine the effects that the increase in civilian participation in armed conflicts has on the principle of distinction and explore how it may continue to be applied in light of the challenges modern warfare poses. In order to do so it will first explain the principle of distinction and review how the changes in armed conflict have led to an increase in civilians on the battlefield. To illustrate the challenges that this increase in civilians on the battlefield causes for the principle of distinction the paper will then focus on two specific examples of civilian actors in modern armed conflict, Private Military Companies (‘PMCs’) and Voluntary Human Shields (‘VHS’). It will examine the specific issues PMCs and VHS respectively cause for the principle of distinction and possible ways to resolve them.
The presence of PMCs and VHS in armed conflicts is a source of both great controversy and difficulty for IHL. They highlight how civilian participation is changing the nature of armed conflict. The increasing use of PMCs in armed conflicts has led to an intermingling of civilians and armed forces. PMCs provide a wide range of services to a number of actors, from States to humanitarian aid groups25. Civilians are used as intelligence personnel, to maintain weapons, provide security and
sometimes even to train the armed forces26. The participation of civilians in such roles creates confusion and uncertainty as to the nature of those contracted by PMCs. VHS further highlight how the civilian population is taking part in the conflict without necessarily engaging in combat. They underline the idea that the civilian population is often more than passive voyeurs of the conflict. VHS method of participation raises questions regarding their protection as civilians. The use of human shields is
prohibited under IHL27, however where such action is undertaken voluntarily
(particularly in order to protect an object of importance to the civilian population), the prohibition has met with some resistance28. As a result of the uncertainty of the nature of such actors it is becoming more difficult to distinguish between legitimate military targets and persons protected against direct attacks thus inhibiting the application of the principle of distinction.
II. The principle of distinction:
The principle of distinction is one of the most fundamental components of IHL. It requires the Parties to a conflict to at all times distinguish between civilians and combatants, an obligation that has been recognised by various cultures and nations throughout history29. It allows for attacks to only be directed against combatants. Furthermore it explicitly states that attacks must not be directed against civilians30. The principle of distinction does not however operate in isolation. It may be said to
25
P.W. Singer (n2) p. 186
26 See the discussion in L Cameron, ‘Private Military Companies and their status under international humanitarian law’, International Review of the Red Cross, vol 88 no 863 (September 2006), pp. 575-577 for further elaboration
27 This point will be discussed further below
28 See for example the arguments in MN Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees’, 5 Chi. J. Int'l L. 511 2004-2005, p. 541 29
For further elaboration see the discussion in T A Keck (n12) pp. 117-127
30 International Committee of the Red Cross, ‘Rule 1’, The principle of distinction between Civilians and Combatants, in Customary IHL
stand as the ‘gatekeeper’ of target selection, acting to aid the process along with the principle of necessity and the principle of proportionality31. The International Court of Justice (‘ICJ’) regards the principle of distinction as one of the ‘cardinal
principles’32 of IHL, thus highlighting its importance and the need for its universal applicability.
The principle of distinction has been codified in several IHL documents33. The St. Petersburg Declaration34 first set forward the principle in relation to situations of international armed conflict35. It states that ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’36, therefore implying that the civilian population should be left unharmed. As it relates to modern international armed conflict The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1), 8 June 197737 (‘API’), sets out the principle in Articles 48, 51(2) and 52(2). Article 48 API sets out the principle of distinction as the basic rule of the general protection of civilians against the effects of hostilities. It requires Parties to a conflict to ‘distinguish between the civilian
population and combatants and between civilian objects and military objectives’38. Military objectives are considered ‘those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’39. The principle of distinction in
non-international armed conflicts is given effect by Article 13 (2) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 197740 (‘AP II’). Article 13(2) AP II states that ‘the civilian population as such, as well as individual civilians, shall not be the object of attack’. The principle of
31 G Swiney, ‘Saving Lives: The principle of distinction and the Realities of Modern War’, 39 Int'l Law. 733 2005, p. 734, see also Arts 51(5) (b) and 57 (2) (a) (iii) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978), (‘API’) regarding proportionality; as well as International Committee of the Red Cross, ‘Rule 14’, Proportionality in Attack, in Customary IHL
32 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, 8 July 1996 International Court of Justice (ICJ), 8 July 1996, Para 78, p. 35
33 see the ICRC customary IHL study, Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants, in the Customary IHL Database, for further examples 34 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, 29 November / 11 December 1868, (entered into force 11 December 1868), (‘St Petersburg Declaration’)
35
International Committee of the Red Cross, ‘Rule 1’, The principle of distinction between Civilians and Combatants, in the Customary IHL Database
36 St Petersburg Declaration, Preamble
37 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978), (‘API’)
38 Art. 52(2) API 39 Art. 48 API 40
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- International Armed Conflicts (Protocol II) (8 June 1977) 1125 UNTS 609, entered into force 7 December 1979 (‘APII’)
distinction is further codified by a number of military manuals41, for example those of the United Kingdom42 and France43. The codification of the principle by States in their military manuals is important as it reinforces the importance of its application. Furthermore it allows for states that are not a Party to the relevant conventions to explicitly set down the requirement to distinguish between combatants and civilians and to only direct attacks against combatants. The United States and Israel for example are not Parties to API but set forward the provision in their military manuals44.
State practice has established the principle as a norm of customary international law applicable in both international and non-international armed conflicts45. The status of the principle of distinction as a principle of customary IHL is further evidenced by the jurisprudence of international courts, tribunals and bodies46. The ICRC sets out the requirement to be able to make such a distinction as ‘Rule 1’ of its acknowledged customary IHL rules47. The ICJ has stated that it constitutes one of the
‘intransgressible principles of international customary law’48. As such the principle of distinction could be said to represent a jus cogens obligation under international law49. It is therefore paramount that it is capable of being applied with clarity in all
41 See the ICRC customary IHL study, Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants, in the Customary IHL Database for further examples 42 United Kingdom military manual: ‘The principle of distinction separates those who may be legitimately the subject of direct attack, namely combatants and those who take a direct part in hostilities, from those who may not be so subject. It also separates legitimate targets, namely military objectives, from civilian objects.’
United Kingdom, The Joint Service Manual of the Law of Armed Conflict, 1 July 2004 as amended by Amendment 3 2010, Ministry of Defence 03 September 2010, p.6, ss 2.5.1
43 French military manual: ‘to distinguish between military objectives, which may be attacked, and civilian objects and persons which must not be made the object of deliberate attack’.
France, Manuel de droit des conflits armés, Ministere de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 13.
Translation found in ‘The principle of distinction between Civilians and Combatants’ of the International Committee of the Red Cross, in the Customary IHL Database
44 The United States Airforce and Naval handbooks both contain provisions relating to the principle of distinction. Israel’s Law of War Booklet (1986) states ‘In principle, the IDF (Israel Defense Forces) accepts and applies the principle of distinction’ and Israel’s Manual on the Rules of Warfare (2006) states ‘a distinction has to be made between combatants and non-combatants’
found in ‘The principle of distinction between Civilians and Combatants’ of the International Committee of the Red Cross, in the Customary IHL Database
45
International Committee of the Red Cross, ‘Rule 1’, The principle of distinction between Civilians and Combatants, in the Customary IHL Database
46 The International Court of Justice, The International Criminal Tribunal for the Former Yugoslavia and the Inter-American Commission and the Inter-American Commission on Human Rights all affirm this position. See International Committee of the Red Cross, ‘Rule 1’, The principle of distinction between Civilians and Combatants, in the Customary IHL Database
47 International Committee of the Red Cross, ‘Rule 1’, The principle of distinction between Civilians and Combatants, in the Customary IHL Database
48
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, 8 July
1996, International Court of Justice (ICJ), 8 July 1996 Para 79 p. 35
49 In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s
Constitutional Court stated ‘Among the essential principles of international humanitarian law with ius cogens status applicable in internal armed conflicts….[is]…..the principle of distinction….It forms part of customary international humanitarian law and has attained ius cogens status’ found in the ICRC database relating to Customary IHL, ‘Colombia; Practice Relating to Rule 7. The Principle of
circumstances. The status of the principle of distinction as a rule of customary law in light of the declarations regarding its significance is therefore of particular importance as it allows Parties to a conflict that have not ratified the relevant treaty provisions relating to the principle of distinction to still be bound by the obligations it entails. As previously stated The United States, one of the largest military powers, is not a Party to API50.
The ICRC sets forward the principle of distinction in three component parts51. Firstly, the parties to the conflict must at all times distinguish between civilians and
combatants. Secondly, attacks may only be directed against combatants. Finally, attacks must not be directed against civilians. The components ‘are interrelated and the practice pertaining to each of them reinforces the validity of the others’52. The term ‘combatant’ as it applies in this context is used in the generic sense to denote those who do not enjoy the protection against attack afforded to civilians. It is not indicative of a right to combatant status or prisoner-of-war status 53 and must
therefore be read in conjunction with the rules relating to persons hors de combat54.
The latter two components set forward in Rule 1, that attacks may only be directed against combatants and must not be directed against civilians55, relate to the methods and means of warfare that may be lawfully used during an armed conflict. The Parties to the conflict must ensure that the methods and means of warfare employed during armed conflicts are only directed against a specific and separable military objective. Furthermore Parties to the conflict are required to ensure that the specific methods and means of warfare used are limitable in their results56. The principle of distinction thus seeks to limit the use of weapons that are by their nature indiscriminate. The prohibition of indiscriminate warfare57 means that the civilian population as a whole and individual civilians are to be spared as far as possible from attack58. The use of cluster bombs, anti-personnel landmines, environmental modification techniques and nuclear weapons, for example, are limited by various treaties as they have been cited in practice as being indiscriminate in ‘certain or all contexts’59. The prohibition of indiscriminate attacks also precludes the indiscriminate use of weapons regardless of Distinction between Civilian Objects and Military Objectives’, Section A, The principle of distinction,
in the Customary IHL Database.
50 For a list of States party to Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977) 1125 UNTS 3, entered into force 7 December 1979 (‘API’) see the International Committee of the Red Cross database
51 International Committee of the Red Cross, ‘Rule 1’, The principle of distinction between Civilians and Combatants, in the Customary IHL Database
52 International Committee of the Red Cross, ‘Rule 1’, The principle of distinction between Civilians and Combatants, in the Customary IHL Database
53 See the discussion relating to prisoners of war in the in the International Committee of the Red Cross, ‘Rule 106’, Conditions for Prisoner-of-War Status, in the Customary IHL Database 54
See the discussion relating to persons hors de combat in the International Committee of the Red Cross, ‘Rule 47’, Attacks against Persons Hors de Combat, in the Customary IHL Database
55 International Committee of the Red Cross, ‘Rule 1’, The principle of distinction between Civilians and Combatants, in the Customary IHL Database
56 S Oeter, ‘Methods And Means of Combat’, in Dieter Fleck (ed) the Handbook on International
Humanitarian Law, (Oxford University Press 2014), p. 129
57 Art. 51(4) API 58
S Oeter (n56) p. 129
59 International Committee of the Red Cross, ‘Rule 71’, Weapons That Are by Nature Indiscriminate, in the Customary IHL Database
their innate ability to discriminate. The difference between the two situations is highlighted by the use of SCUD missiles by the Iraqis in the 1990-91 Persian Gulf War60. SCUDS are not inherently indiscriminate; however their employment against Israeli and Saudi cities constituted an indiscriminate use, as the likelihood of hitting lawful targets was outweighed by the probability of causing harm to protected persons and objects61.
The principle of distinction whilst seemingly straightforward in theory is not always so easy to apply in practice. The fluidity of the boundary between military objectives and civilian objects remains a problem. The requirements set forward by Article 52 (2) API allows for a broad and abstract interpretation of what qualifies as military objectives. Under Article 52(2)62 all ‘installations, buildings or ground sectors which are directly involved in the military endeavour of the enemy’63 and therefore make an effective contribution to military operations may be said to meet the necessary
requirements of a military objective64. It is not sufficient however that the objective merely contributes to the military arrangements of the opposing force. Its partial or total destruction must offer a definite military advantage in light of the specific circumstances existing at the time of the attack. The latter requirement allows for a certain amount of subjectivity when assessing whether or not an object may be judged as a military objective. The nature of an object will therefore be dependent upon its specific use and the interests of the Parties at the time of the attack. It follows that uncertainty surrounds the legitimacy of classifying certain installations as military objectives. The doubt that surrounds the classification of the ‘supply industry of armaments production and subcontractors of the defence industry’65 as legitimate military objectives illustrates this point. The precarious status of such potential objectives creates further difficulties for the principle of distinction as it blurs the lines between permissible military objectives and civilian objects.
The first component set forward by Rule 1 requires that States must be able to distinguish between combatants and non-combatants by obliging combatants to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack66. International customary law states that such members should wear the uniform of the Party to the conflict when they are directly involved in hostilities67. However it is not always possible for combatants to distinguish themselves from the civilian population in this manner, for example in wars of national liberation68. Article 44 API, although not a provision of customary law, expressly recognizes such situations69. It requires combatants to carry their arms openly in order to retain their status as such70. Furthermore Article 44 API
60 MN Schmitt, Essays on Law and War at the Fault Lines, (n1), p. 136 61 MN Schmitt, Essays on Law and War at the Fault Lines, (n1), p. 136 62 Art. 52(2) API 63 S Oeter (n56), p. 169 64 ibid p. 169 65 ibid p.174 66
International Committee of the Red Cross, ‘Rule 1’, The principle of distinction between Civilians and Combatants, in the Customary IHL Database
67 K Ipsen, ‘Combatants And Non-Combatants’, in Dieter Fleck (ed) the Handbook on International
Humanitarian Law, (Oxford University Press 2014), p. 89
68
ibid p.90
69 Art 44(3) API sentence 2 API 70 Art. 44(3) sentence 2 API
requires combatants ‘to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack’71. Nevertheless Article 44 API states that it is ‘not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict’72.
Combatants who are not members of uniformed armed forces are required to wear a permanent distinctive sign visible from a distance73 and carry their arms openly74 in order to distinguish themselves from the civilian population.
The protection afforded to civilians under the principle of distinction is not absolute; it may be lost in a limited set of circumstances. The civilian population can under exceptional circumstances obtain combatant status, for example by becoming part of a levée en masse75. Although members of a levée en masse are considered combatants they do not belong to the armed forces. State practice has established the principle as a part of customary international law76. It is also codified through several IHL instruments including Article 2 of theHague Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land77 (‘Hague Regulations’) and Article 4(A)(6) of the Geneva Convention relative to the Treatment of Prisoners of War 78 (‘Third Geneva
Convention’). Their classification as combatants allows for them to become a legitimate target of attack.
Secondly civilians are entitled to protection against direct attack unless and for such time as they directly participate in hostilities79. The notion of direct participation is itself vague and unclear making its application problematic. It ‘refers to specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict’80. Two essential elements therefore comprise the notion of direct participation, that of ‘hostilities’ and that of ‘direct participation’81. ‘Hostilities’ ‘refers to the (collective) resort by the parties to the conflict to means and methods of injuring the enemy’82 whilst ‘participation’ ‘refers to the (individual) involvement of a person in these hostilities’83. The interpretative guidelines on direct participation state that the treaty provisions relating to direct participation in hostilities under IHL show that the principle ‘does not refer to a person’s status, function, or affiliation, but
71
Art. 44 (3) API 72 Article 44 (7) API 73 K Ipsen (n66) p. 89 74 Art. 44 (3) (a) and (b) API 75
K Ipsen (n66) p. 80
76 International Committee of the Red Cross, ‘Rule 5’, Definition of Civilians, in the Customary IHL
Database
77 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land (18 October 1907) 36 Stat 2277; 1 Bevans 631; 205 Consol TS 2773; Martens Nouveau Recueil (3d) 461, entered into force 26 January 1910, (‘Hague Regulations’)
78 Geneva Convention relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135, entered into force 21 October 1950, (‘Third Geneva Convention’)
79 Article 51(3) API
80 N Melzer, , ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’ (n23), p.43
81
ibid p.43 82 ibid p. 43 83ibid p. 43
to his or her engagement in specific hostile acts’84. Direct participation in hostilities instead ‘refers to specific hostile acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict’85.
In order for the individual’s conduct to qualify as direct participation a specific act must meet the following cumulative criteria86:
1. the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and
2. there must be a direct causal link between the act and the harm likely to result either from the act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and
3. 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 (belligerent nexus).
In order to fulfil the first criteria, the threshold of harm, ‘a specific act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury or destruction on persons or objects protected against direct attack’87. This threshold is not based upon the realization of the harm but rather the objective possibility that the act will result in such harm. However even where such harm is inflicted it will not amount to direct participation unless the requirements of direct causation and belligerent nexus are met. In order for there to be a direct causal link ‘there must 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’88. Finally ‘in order to meet the requirement of belligerent nexus, an 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’89.
The concept of direct participation is not definitively defined and as such its
application depends on the somewhat subjective interpretation of the circumstance as observed by the Party seeking to define it. This subjective attitude can be seen in the different approaches to the concept. The ICRC defines the concepts contained within
84 ibid p. 44
85 N Melzer, ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’, (n23), p. 45
86
N Melzer, ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’, (n23), p. 46 It should however be noted that the position on direct participation taken in the Interpretive Guidance has received some criticism, see for example the discussion in TA Keck, ‘Not All Civilians Are Created Equal: The Principle Of Distinction, The Question of Direct Participation In Hostilities And Evolving Restraints On The Use of Force In Warfare’, 211 Mil. L. Rev. 115 2012; the arguments put forward by MN Schmitt, ‘Deconstructing Direct Participation in
Hostilities: The Constitutive Elements’, 42 N.Y.U. J. Int'l L. & Pol. 697 2009-2010 also highlight the lack of consensus surrounding the interpretive guidance; for counter-points to MN Schmitt’s arguments see N Melzer, ‘Keeping The Balance Between Military Necessity and Humanity: Response to Four Critiques Of the ICRC’s Interpretive Guidance On The Notion Of Direct Participation In Hostilites’, 42 N.Y.U. J. Int'l L. & Pol. 831 2009-2010, pp. 856-877
87 N Melzer, ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’, (n23), p. 47
88 ibid p. 51 89 ibid p. 58
the principle of distinction narrowly90. Others however have taken a less protective approach to the limitaions the principle imposes. For example the United States includes ‘economic facilitities that indirectly but effectively support and sustain the enemy’s war-fighting cabability’91 within the confines of appropriate targets. The ambiguous nature of the scope that the concept of direct participation entails allows for states to read the prohibition against engaging in combat in a manner which enables them to widen the scope for civilian participation in military activities92. Doubt as to the character of an object or individual does however result in the finding of civilian status93.
III. An increase in civilians on the battlefield
Civilians for the purposes of IHL are those who are not considered combatants under Article 4(A) of the Third Geneva Convention of 194994. During the Twentieth Century the distinction between combatants and civilians became less and less obvious. Battlefields rarely exist in a defined geographical area anymore. The
increase in weaponry and air power saw the battlefield turn into a battle space95. As a result civilians became more involved in the conflict, first as victims of the new weaponry and later as participants96. IHL attempts to create a balance between
humanity and military necessity97. The humanitarian aspect attempts to limit the harm caused to civilians and civilian objects, whilst military necessity allows for the Parties to use such force as is necessary to subdue the enemy. A certain amount of give and take exists between the two competing interests, as exemplified by the relative nature of the term ‘excessive’ in Article 51 API98. The protection afforded to civilians has in the past been predicated on the notion that they are unarmed and harmless. For
example the Lieber Code required the ‘sparing of the unarmed citizen…. as much as the exigencies of war [would] admit’99. The parameters of IHL allow for ‘no more death, injury, or destruction [to] be caused than is actually necessary for the
accomplishment of a legitimate military purpose in the prevailing circumstances’100. Civilians are protected from attack ‘unless and for such time as they take a direct part in hostilities’101. The protection afforded by IHL to civilians in armed conflicts has therefore always been tempered by the demands of warfare.
90 MN Schmitt, Essays on Law and War at the Fault Lines, (n1), p. 137 91
MN Schmitt, Essays on Law and War at the Fault Lines, (n1), p. 138
92 JR Heaton,‘Civilians at war: reexamining the status of civilians accompanying the armed forces’, (2005), 57 A.F.L. Rev. 155 p 192
93 ‘In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.’ Art. 50(1) API
94 Geneva Convention relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135, entered into force 21 October 1950 (‘Third Geneva Convention’)
95 C Garraway (n9) p. 178 96
See the discussion in C Garraway (n9) pp.177-186 97
for further elaboration see the discussion in MN Schmitt, Essays on Law and War at the Fault Lines, (n1), pp 89-131
98 MN Schmitt, Essays on Law and War at the Fault Lines, (n1), p.97 99
Art. 22 Instructions for the Government of Armies of the United States in the Field (Lieber Code). 24 April 1863(emphasis added) (’Lieber Code’); found in E Camins, ‘the past as prologue: the
development of the ‘direct participation’ exception to civilian immuninty’; International Review of the Red Cross, vol 90 no. 872 December 2008, p879
100
N Melzer, , ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’, (n23), p.80
An increase in the civilian population in battle zones creates difficulties for those conducting military operations, particularly where the lines between those directly participating in hostilities and those that are not have become hazy. The prohibition against indiscriminate warfare and the principle of distinction may be said to be inter-dependent. The prohibition of indiscriminate warfare requires that both the totality of the civilian population and individual civilians must be spared as far as possible from attack. The general prohibition against indiscriminate warfare does however apply independently of the principle of distinction, and thus of articles 48 and 51 of API, although it cannot be denied that the ability to distinguish combatants from civilians is an important factor in ensuring that they are spared from attack. However in densely populated areas it becomes more and more difficult to spare civilians from the effects of warfare due to the inter-mingling of combatants with civilians and military
objectives with civilian objects. In certain instances steps have been taken in an attempt to limit the amount of collateral damage caused by the presence of civilians. The Israeli Defence Forces, for example, have reportedly used telephone calls, leaflets and a technique known as ‘the knock on the roof’ in order to provide advanced
warnings to civilians in an attempt to minimize the harm caused to them during attacks102. The use of such tactics is however not without controversy103. The protection of the civilian population includes the requirement not to mount attacks on objects that are considered indispensible to the survival of the civilian population104. On the other hand IHL allows attacks to be directed against legitimate military objectives. However with armed conflicts being conducted in increasingly populated areas the lines between indispensible civilian objects and military
objectives are becoming less distinct. Article 52 (3) API states that in case of doubt as to whether or not ‘an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so be used’. There is therefore a negative presumption with regards to the aforementioned objects as their primary purpose is purely civilian in nature. Civilian objects are however only protected from attack for so long as they cannot be said to have made ‘an effective contribution to military action’ 105 and their destruction does not offer a ‘definite military advantage’106. Consequently the protection of civilian objects is not absolute. They may be said to lose their protection ‘unless and for such time as they are
military objectives’107. That is to say for such time that it can be shown, in light of the external circumstances and information available, they are being used to contribute to the military capacity of a Party to the conflict. By way of illustration a school that is also used to house soldiers or launch attacks may lose its protection as it contributes to military action. Civilian objects cannot be said therefore to be immune from attack. Nevertheless such destruction remains contrary to on one of the key aims of IHL, to
102
See S Erlanger and F Akram’s ‘Israel Warns Gaza Targets by Phone and Leaflet’ in the New York Times, July 8, 2014
103 See S Erlanger and F Akram’s ‘Israel Warns Gaza Targets by Phone and Leaflet’ in the New York Times, July 8, 2014 and Human Rights Watch, Israel: Ensure Improved ‘Attack Warnings' to Civilians
Are Effective, 3 August 2009
104 Art. 54 (2) API 105 Art. 52 (3) API 106
Article 52 (3) API
107 International Committee of the Red Cross, ‘Rule 10’, Civilians Objects’ Loss of Protection from Attack, in the Customary IHL Database
limit the harm caused to those not participating or no longer participating in the conflict. It follows therefore that in cases of doubt those launching attacks against such installations should err on the side of caution.
The extension of the battlefield to urban areas is however not the only reason for the increased presence of civilians. The number of civilian entities contributing to the war effort has also augmented. Civilians that work for such entities risk becoming
collateral damage or even legitimate military targets as a result of the part they play. This was seen during World War Two were the argument of military necessity was used to justify the bombing of civilian and industrial targets108. The protection afforded to civilians predicated on the idea that they were unarmed and harmless, as provided for under the Lieber Code109, was no longer sufficient in the face of total war110. In 1977 API was adopted, Article 50111 of which offers a more stringent approach to the protection of civilians. It affords protection to all non-combatants regardless of whether or not they are harmless. It allows for those who do not fit the traditional mould of a civilian to enjoy continued immunity from attack. However since the introduction of Article 50 API there has been an increase in the ways for civilians to harm the enemy and they often play an integral part in military operations. This increase in the military value of civilians has created doubt as to whether the ‘direct participation’ requirements under article 51(3) API continue to strike an appropriate balance between the conflicting ideas of military necessity and
humanity112. Developments in weapons technology, the asymmetric nature of many conflicts and increased outsourcing of military functions to civilian contractors has seen growing classes of civilians become potentially harmful to enemy forces113. As stated civilians are not only victims of the conflict, they are often perpetrators of the violence114. It is difficult to distinguish ordinary crime from direct participation in hostilities115. In civil wars the ‘highly complex and dynamic’ relationship between civilians and combatants makes it difficult to draw a line between the two116.
Maintaining the protection afforded to civilians by the principle of distinction may be seen to unnecessarily impede the ability to subdue the enemy.
The expansive use of civilians by the military also makes the practical application of the principle of distinction difficult. As civilian activities are becoming further militarized and military activities are being civilianized, it is becoming harder to decisively conclude when one constitutes a legitimate military objective. This is particularly true of more technologically advanced States. In order to minimize costs the military increasingly makes use of a wide range of civilian facilities, from sharing office space, runways or pursuing partnerships with commercial space entities and consortiums117. As the parties have become increasingly unequal, the asymmetry between forces has created incentives for the weaker party to resort to more covert or
108
E Camins (n99) pp.870-871 109
Instructions for the Government of Armies of the United States in the Field (Lieber Code). 24 April 1863
110 For further elaboration see the discussion in T A Keck (n12) p. 120 111
API
112 E Camins (n99) p881 113 ibid p854
114 A Wenger and S JA Mason (n2) p. 843 115
ibid p. 843 116 ibid p. 843
perfidious methods of war that often involve civilian participants118, for example the use of human shields to protect militarily significant objects or allowing civilian objects to also be used for military purposes119. This increased reliance on the civilian population together with an often-divergent view of both ‘their ideological and
structural make-up and motivations blurs [the] conventional understanding of who is and who is not a civilian'120.
The military also makes use of the civilian population by contracting out activities traditionally carried out by members of the armed forces. If one takes for example the United States military, it has previously contracted out ‘aircraft maintenance, security, transportation of troops and supplies, housing and even training in basic combat functions’121. The use of civilians in such roles has raised the question as to whether or not they reach the threshold of direct participation rendering them capable of being considered legitimate military targets. The difficulty in making such a distinction is perhaps best highlighted by the use of an example. If one takes as a case study a civilian driver of an ammunition truck122. One could say that the driver is directly participating if he is transporting ammunition to an active firing position on the front line. He would be in such an instance an integral part of on going combat operations. On the contrary if the driver was transporting ammunition to be shipped to a
warehouse for storage in a combat zone, it becomes less clear how such activity could amount to direct participation. The classification of the driver would depend
somewhat on the subjective element inherent in the principle of distinction. The subjective element requires the Party seeking to launch the attack to decide whether or not, in light of the specific circumstances existing at the time, the contribution made by driver offers a definite military advantage to the enemy. The truck itself however remains a legitimate military target regardless of whether or not the driver can also be classed as such. Any direct attack against would have to take the probable death of the civilian driver into account in the proportionality assessment to remain lawful123. Therefore even if one answers in the negative, as is the current stance for most cases where civilians provide support to military operations, one cannot argue against the fact that regardless of their status, civilians that contribute in any capacity to the war effort are more vulnerable to attack. Furthermore it leaves another category for forces to distinguish between beyond that of combatant and civilian, it requires them to distinguish between civilian participants and civilian non-participants124.
IV. Private Military Companies and the Principle of Distinction
International law does not provide a definition of a private military company (‘PMC’). However they are traditionally understood as companies that ‘provide
118
E Camins (n99) p880 119
See the examples regarding Iraq in MN Schmitt, War, Technology, And International Humanitarian
Law, Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper
Series, No. 4, Summer 2005, pp. 35-41 120
E Camins (n99) p.880
121 MN Schmitt, Essays on Law and War at the Fault Lines, (n1), p. 148
122 N Melzer, ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’, (n23), p. 56
123
N Melzer, ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’, (n23), p. 56
services to replace or back-up an army or armed group or to enhance effectiveness’125. The PMC industry is a multi-billion dollar sector126, offering a wide range of services from the provision of security to the training of troops. Some companies such as Executive Outcomes and Sandline have even carried out combat operations127. The services of PMCs are increasingly being employed by numerous entities from states to private companies in situations of both international and non-international armed conflicts at a rate that is ‘outpacing efforts to assess the consequences of increased reliance on [them] for IHL’128.
The reliance of States on such companies is well established. For example, in 2003 the Coalition forces used 20,000 PMC employees in the invasion of Iraq129. A report to the United States Congress in 2008 estimated that 50 PMCs had approximately 30,000 security contractors operating in Iraq130. By late 2009, security contractors outnumbered all foreign armed forces, both support and combat in Iraq except those of the United States, and in Afghanistan only the United Kingdom and United States fielded more troops131. The nature of the services that PMCs offer has led to much debate regarding their role, regulation and accountability. The focus of this chapter will however be the problems that the participation of PMC contractors in armed conflict raises for the principle of distinction and possible solutions to such issues. The principle of distinction is dependent on the ability to distinguish combatants from non-combatants. The clarification of the place of PMC contractors within IHL is an important factor in making this distinction as different rights and obligations are owed, depending upon when one is considered a combatant or a civilian. Most States consider those employed by PMCs as “civilian contractors” and as such they retain their civilian status under IHL. Nonetheless discussion regarding their regulation has been sparked following the involvement of employees of the PMC CACI in the torture of internees at the Ghraib detention facility and the killing and mutilation of four employees of the Blackwater Company and the assault on Fallujah that followed in April 2004132. Nevertheless contractors employed by PMCs do not comfortably meet the necessary criteria to reach combatant status as established by the relevant treaty provisions133. There have also been some suggestions that contractors employed by PMCs are best regulated as mercenaries, yet such a classification is considered for the most part unhelpful for the regulation of the industry in general134.
125 A Faite, ‘Involvement of private contractors in armed conflict: implications under international humanitarian law’, Defence Studies, 4:2, p. 168
126 L Cameron, ‘Private Military Companies and their status under international humanitarian law’, International Review of the Red Cross, vol. 88 no. 863 (September 2006), p. 575
127 A Faite (n126) p. 166
128 R de Nevers, ‘Private Security Companies and the Laws of War’, Security Dialogue, vol. 40, no. 2, April 2009, p. 169
129
L Cameron (n127) p. 574 130
MN Schmitt, Essays on Law and War at the Fault Lines, (n1), p. 516 131 MN Schmitt, Essays on Law and War at the Fault Lines, (n1), p. 516 132 L Cameron (n127) p. 574
133
Such provisions are contained in Art. 43 Third Geneva Convention and Article 4(A) API 134 L Cameron (n127) p. 573; Mercenaries are regulated by Art. 47 API, Convention for the Elimination of Mercenarism in Africa, Organization of African Unity, Libreville, (3 July 1977), CM/817 (XXXIX), Annex II, Rev. 3 entered into force 22 April 1985 and the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, (4 December 1989) G.A. Resolution 44/34, U.N. GAOR, 44th Sess., Supp. No. 43, U.N. Doc. A/RES/44/34 entered into force 20 October 2001. While PMC contractors often fail to meet the necessary criteria under article
This chapter will therefore explore the ability to regulate PMC contractors under IHL as combatants. It will also examine the problems for the principle of distinction created by finding in favour of civilian status. It will also look at possible solutions to the problems created for the principle of distinction.
A. Combatant status
The key rule for determining a person’s status as a combatant in an international armed conflict is contained in Article 43 API135. Article 43 API defines armed forces and provides that members of the armed forces, excluding medical and religious personnel, are combatants. This rule goes back to the Hague Regulations, according to which the ‘armed forces of the belligerent parties may consist of combatants and non-combatants’136.Under Article 43(1) API the armed forces of a Party to the conflict includes ‘groups and units which are under a command responsible to that Party or the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party’. Combatant status is therefore linked to membership of the armed forces of a Party to the conflict, or to membership of a militia or volunteer force that belongs to a Party to the conflict137. Consequently when assessing the status of PMC employees it is necessary to review the idea of their integration in the armed forces under Article 43 API or Article 4(A) of the Third Geneva Convention. Under Article 43(2) API members of the armed forces, insofar as they are considered combatants ‘have the right to participate directly in hostilities’. In non-international armed conflicts the distinction between combatant and civilian is more ‘generic’138. The distinction between combatants and civilians in
non-international armed conflicts is dependent upon who is directly participating in hostilities and the domestic laws of the state.
PMC employees must be considered combatants if they are to participate directly in hostilities without fear of being prosecuted for such participation139. It would however seem to ‘be at variance with the philosophy of outsourcing to contend that [PMCs] are nonetheless members of a state’s armed forces’140. Nevertheless the necessary steps to be taken in order to be registered in a state’s armed forces are a matter of internal law; IHL does not prescribe specific steps to be fulfilled141. Incorporation of PMCs would therefore depend on the will of a state to do so and the domestic law of the State in question. Article 43(3) API requires that states inform the opposing side when they incorporate their police force or other paramilitary forces into their armed forces. Thus whilst IHL does not impose specific criteria regarding membership of the armed
47(2) API to be considered a mercenary for the purposes of IHL it is interesting to note that none of the States that are a party to the OAU Convention have significant numbers of PMCs operating from or on their territories (L Cameron (n127) p. 581). This may be due in no small part to the threat that
mercenaries have posed to African states since the beginning of decolonization (see the International Committee of the Red Cross, ‘treaties and states parties to such treaties’, introduction to the OAU Convention for the Elimination of Mercenarism in Africa. Libreville, 3rd July 1977) and the analogies that may be drawn with PMC contractors.
135 See K Ipsen (n67) p. 85 136
Art. 3 Hague Regulations; see International Committee of the Red Cross, ‘Rule 3’, Definition of Combatants, in the Customary IHL Database
137 L Cameron (n127) p. 582 138 R De Nevers (n125) p. 172 139 L Cameron (n127) p. 582 140 ibid p. 583 141 ibid p. 583
forces it does require that opposing forces are able to determine who constitutes a member. It follows therefore that it would not pose a problem from the point of view of the principle of distinction if PMCs were to be incorporated into a State’s armed forces as long as the opposing force is notified.
On the other hand individual contractors work for third parties, they do not work directly for the government whose operations they are supporting, as it is the company that has the government contract. This link is even more tenuous where a government contracted PMC subcontracts to the PMC in question142. Such practice was particularly extensive in Iraq143. The government and military do not have
command over such contractors144. It would be difficult under such circumstances for opposing forces to discern with sufficient certainty which PMC employees had obtained combatant status and as such could be considered legitimate military objectives, and which PMC employees were considered civilians and were thus protected from such attacks under Article 48 API. The lack of clarity in such situations could discourage any attempt to comply with IHL145.
Article 4(A)(2) of the Third Geneva Convention stipulates that in order to qualify for prisoner-of-war status ‘members of other militias and members of other volunteer corps…must meet the following conditions’:
(a) that of being commanded by a person responsible for his subordinates; (b) that of having fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly
(d) that of conducting their operations in accordance with the laws and customs of war.
The conditions are cumulative and such a group must belong to a Party to the conflict. Furthermore in assessing the conditions of Article 4(A)(2)146, one must keep in mind that they apply to groups and not to individuals147. For the most part PMCs do not meet all the criteria required for non-state armed groups or militias. They are unlikely to meet Article 4(A)(2)(a)148 as it is not always clear if there is a ‘stable fixed
hierarchy within the relevant companies’149. Many PMCs that wear a uniform and for all intents and purposes appear to meet Article 4(A)(2)150 may nevertheless be
considered civilians. It is unlikely therefore that PMC contractors, as a group could be classified as combatants.
B. Civilian status:
The principle of distinction requires all those present in armed conflicts to be
identifiable as either combatants or civilians. Article 50 API defines civilians as ‘any
142 MN Schmitt, ‘Humanitatrian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees’ (n28) p.528
143
MN Schmitt, ‘Humanitatrian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees’ (n142) p.528
144 R De Nevers (n138) p. 175 145
L Cameron (n 127) p. 585 146 Third Geneva Convention
147 MN Schmitt, ‘Humanitatrian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees’ (n28) sp.527
148
Third Geneva Convention 149 R De Nevers (n125) p. 175 150 Third Geneva Convention
person who does not belong to one of the categories referred to in Article 4(A)…of the Third Convention151 and in Article 43 of this Protocol’152. It follows therefore that if the employees of PMCs are not considered combatants, then for the purpose of IHL they are civilians. Civilians are protected from attack unless and for such time as they take direct part in hostilities. They may also be punished through the criminal justice system for their participation in hostilities. The nature of some of the services offered by PMC contractors, means that under certain circumstances there is a strong
possibility of them being found to meet the threshold of direct participation. The direct participation of PMC contractors could compromise the ability of IHL to protect the rest of the civilian population153.
The concept of direct participation is ‘fluid and relatively undefined’154. The Geneva Conventions and their Protocols of 1977 do not offer a precise definition of what it means to directly participate in hostilities155. IHL does not attempt to restrict it to situations where individuals are involved in military deployment or are armed with a view to taking active part in combat operations156. The ICRC through both the Commentary on API157 and the ‘Interpretive Guidance on the Notion of Direct
Participation in Hostilities under International Humanitarian Law’158 has attempted to clarify the concept. The Commentary states that hostile acts ‘should be understood to be acts which by their nature and purpose are intended to cause actual harm to personnel and equipment of the armed forces’159. The interpretive guidance sets out the criteria, as previously discussed, for establishing when the threshold of direct participation has been reached160. Direct participation cannot however be understood so broadly as to include any acts that could be construed as helping one side or the other161. ‘There should be a clear distinction between direct participation in hostilities and participation in the war effort’162. It would therefore depend on the specific circumstances which side of the proverbial coin the participation of the PMC contractor falls. According to the Commentary without such a distinction between those directly participating and those not, the efforts made to reaffirm and develop IHL could become meaningless163.
It is arguable that some of the services that PMCs offer may be considered to amount to direct participation in hostilities. Those involved in the transportation of weapons and other military commodities, intelligence, strategic planning or the procurement of
151 Third Geneva Convention 152 API
153
L Cameron (n127) p. 587 154 ibid p. 588
155 N Melzer, ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’, (n23), p.12
156
A Faite (n126) p. 173 157
J Pictet et al (n24)
158 N Melzer, ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’, (n23)
159
J Pictet et al (n24) ss 1942, p. 618
160 See p. 7 of this document for the discussion of the arguments presented in N Melzer, ‘Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law’, (n23) p. 46
161
L Cameron (n127) p. 588
162 J Pictet et al(n24) ss 1945, p. 619 163 J Pictet et al (n24) ss 1945, p. 619
arms may reach the threshold set forward in the ICRC interpretive guidance164. It would therefore need to be evaluated on a case-by-case basis. The widespread use of PMCs would however make such an evaluation inefficient. The lack of consensus as to what constitutes direct participation in hostilities could also lead to a disparity in findings, therefore offering little assistance to the general ability to apply the principle of distinction to PMCs as a group165. Many services that PMC contractors provide fall somewhere in the grey areas of direct participation. It can be argued that the best approach is to interpret such services liberally, in other words, finding in favour of direct participation166. An interpretation of direct participation that allows civilians to retain their immunity from attack even though they are inextricably involved in the conduct of on-going hostilities engenders disrespect for the law by those combatants endangered by their activities167. However some disagreement is found with such an interpretation. There are those who would argue that to consider all the support activities of PMC contractors as amounting to direct participation is ‘inappropriate and risks removing the protection of non-combatant status from many other civilians working in war-related industries’168.
IHL accommodates civilians assisting the armed forces in a limited set of
circumstances. The Third Geneva Convention provides for civilians to perform tasks such as supplying the armed forces with food and water whilst retaining their civilian status169. Under Article 4(A)(4) of the Third Geneva Convention they may be classed as civilians accompanying the armed forces. However this category only exists in international armed conflicts. Moreover to qualify, civilians must have a real link, i.e. provide a service, to the armed forces, not merely the State170. They must have received authorization from the armed forces which they accompany, who in turn provide them with an identity card171. Civilians hired and supervised by the armed forces have an employment relationship with them172. The relationship between civilians hired by the armed forces and contractors employed by PMCs is different. Contractors that work for PMCs have an employment relationship with the company and have a contractual relationship with the armed forces173. Furthermore PMC contractors employed by civilian State authorities or private entities do not meet the relevant criteria. Nevertheless it would follow that PMC contractors providing
services such as, food and water, to the armed forces could not be regarded as directly participating in hostilities. If however the support provided to the armed forces goes beyond that allowed for under the Third Geneva Convention they may be said to be directly participating in hostilities. Logistics personnel, that are members of the armed
164 See p. 11 of this document. 165 See p.12 of this document
166 MN Schmitt, ‘Humanitatrian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees’ (n28) p.534
167
MN Schmitt, ‘Humanitatrian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees’ (n28) p.534
168 L Cameron (n127) p. 588 169
ibid p. 589
170 The International Committee of the Red Cross, ‘The Montreux Document On pertinent international legal obligations and good practices for States related to operation of private military and security companies during armed conflict’, Montreux 17 September 2008, p.34
171
Art. 4(A)(4) Third Geneva Convention 172 JR Heaton (n92) p.174
forces, are sometimes called in to support troops when extra assistance is required174. Officers in Iraq have reported leaving their kitchen staff in charge of guarding the base175. If the support staff were not members of the armed forces but rather civilian employees of PMCs they would not be allowed to engage in combat beyond personal self defence176. To go beyond this would most likely amount to direct participation in hostilities. This would allow them to be considered legitimate military objectives so long as they continued to engage in such activity and leave them open to attack. The same may be said where the nature of the object they are guarding changes. The principle of distinction requires not only the ability to distinguish between civilians and combatants but also between civilian objects and military objectives. The ‘nature, location, purpose and use’ of an object determine whether or not it is classed as a military objective or civilian object177. IHL does not provide a set list. A PMC contractor that is engaged to provide security for a civilian object is unlikely to be considered to be directly participating in hostilities. It is less clear when they are employed to guard a military objective or when through the nature, location, purpose or use a civilian object becomes a military objective. A PMC contractor that guards a military objective may be said to be directly participating in hostilities. However where a civilian object that is guarded by a PMC contractor becomes a military objective without their knowledge, for example if the temple being guarded is also used to house soldiers, it is harder to argue that they are directly participating in hostilities178. Further problems are created where the change in the nature of the installation is temporary179. When the installation no longer makes an effective contribution to military action it will revert to a civilian object and can no longer be made the subject of attack. This fluctuation in use will have an affect on the argument for direct participation and will make it difficult for the opposing force to determine if the PMC employee may be considered a legitimate subject of attack or whether they must be taken into account in proportionality assessments. Collateral damage is often unavoidable in combat situations. Incidental loss of civilian life, as long as it is not excessive in relation to the concrete and direct military advantage anticipated, is not illegal under IHL180. PMC contractors that provide security services therefore assume a certain amount of risk, regardless of their status.
It has been argued that where PMC contractors refrain from returning fire, in the event of an attack, they should retain the protection afforded to civilians and may not be intentionally targeted181. However when fire is returned whether or not it amounts to direct participation would depend on a case-by-case analysis of the circumstances. The return of fire in self-defence would not exclude a finding of direct participation,
174 Art. 4(4) Third Geneva Convention’) It allows for ‘persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model’ to be considered prisoners-of-war. See the discussion in L Cameron (n127) p. 590 175
According to the New York Times, April 2005, found in L Cameron (n127) p. 589 176 L Cameron (n127) p. 589 177 Article 52(2) API 178 L Cameron (n127) p. 590 179 ibid p. 590 180 Article 51(5) API 181 A Faite (n126) p. 175
