Abstract
While people are and will remain central to the conduct of warfare, in this chapter looks at their evolving roles. After explaining the notions of combatant and civilian, and the distinctions between them, the circumstances in which civilians lose protected status are clarified as much as contemporary controversies over the direct participation in hostilities notion permit. The legal position of other categories of individual, e.g. contractors’ employees, mercenaries, persons involved in non-international armed conflicts and those who use force outside armed conflict is considered. The classes of person that are protected under the law of armed conflict and under domestic and human rights law are set forth and the legal implications of civilian involvement in modern forms of warfare, including cyber operations, remotely piloted and autonomous attack operations and outer space warfare, are considered. Does the notion of direct participation stand up to the challenges these novel methods seem likely to pose?
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Consider, for example, the customary rule in API, Article 35(1) and the similarly customary rule in Article 35(2) that prohibits weapons of a nature to cause superfluous injury or unnecessary suffering.
- 2.
API, Article 51(1).
- 3.
Roberts 2011, pp. 374–377.
- 4.
Rogers 2012, p. 39.
- 5.
- 6.
API, Article 43(1). So, for example, the Estonian Cyber Defence League is a unit of the Defence League, a voluntary military non-governmental national defence organization; Gelzis 2011, available at www.dw.de/estonian-voluntary-cyber-soldiers-integrated-into-national-guard/a-14968102.
- 7.
API, Article 43(2). For an account of the historical evolution of the notion of ‘combatant’ and for a discussion of the significance of its use in API, see Green 2008, pp. 125–138 and for a general account of the notion of ‘combatant’, see Kolb and Hyde 2008, pp. 197–207 and Kalshoven and Zegveld 2011, pp. 33–35.
- 8.
Hague Regulations, 1907 Article 3 and API, Article 43(2). Knut Ipsen makes the points that members of the armed forces who are non-combatants are the exception rather than the rule; that non-combatants refers to medical and religious personnel and other members of the armed forces not authorized to participate directly in hostilities; and that the status of various groups of service personnel is determined by national decision in accordance with legal principles. He identifies the essential relationship here as being between a state, as a subject of international law, its armed forces as its organ and the members of the armed forces as combatants, and notes that the generic international legal meaning of the term ‘combatants’ is “persons who may take a direct part in the hostilities, that is participate in the operation or control of a weapon or a weapon-system in an indispensable function”; Ipsen 2013, pp. 80–82.
- 9.
API, Article 43(3).
- 10.
Dinstein 2010, pp. 102–103.
- 11.
API, Article 44(3). Mike Schmitt points out that their failure so to distinguish themselves is not a violation of the law of armed conflict; it merely causes them to lose combatant status and its associated benefits; Schmitt 2006, p. 24.
- 12.
Wall 2007, p. 419. Yoram Dinstein identifies seven conditions that must be complied with, namely the four conditions set out in Article 1 of the Hague Regulations (subordination to responsible command, a fixed distinctive emblem, carrying arms openly and conduct in accordance with the law of international armed conflict) together with an additional three, namely a hierarchical framework, embedded in discipline and subject to upper echelon supervision; belonging to a Party to the conflict; and non-allegiance to the Detaining Power; Dinstein 2010, pp. 43–47. Note that the prescriptive criteria are also to be found in Geneva Conventions I and II, Article 13. As to the consequences of failure to comply with the conditions, consider Mohammed Ali et al v. Public Prosecutor (1968), [1969] AC 430 (Privy Council) and Ex Parte Quirin et al. (1942) 317 US Supreme Court Reports 1. Yoram Dinstein concludes that there is a presumption that by their nature members of the armed forces would meet the prescribed conditions but that the presumption can be rebutted; Dinstein 2010, pp. 42–43 and see Corn 2012, p. 138.
- 13.
Rome Statute 1998, Article 33(1)(c).
- 14.
Rome Statute 1998, Article 25.
- 15.
As to the impact on command responsibility of the radical increase in available information that characterizes modern conflict, see Garraway 2013, p. 187.
- 16.
Rome Statute 1998, Article 28, paras (a) and (b) respectively.
- 17.
API, Article 43(1).
- 18.
Indeed, making such civilians the object of attack is a war crime; Rome Statute, 1998, Article 8(2)(b)(i) and 8(2)(e)(i). Consider the point made by Yoram Dinstein: “If the lines separating civilians from combatants blur, there is a palpable risk that (to be on the safe side) the enemy will treat all persons encountered in or near the contact zone of military operations on land as if they were combatants, and then the ‘principle of distinction’ will be swept aside”; Dinstein 2007, p. 150. With evident relevance to notions of a revolving door of protection as reflected in Melzer 2009, he comments: “customary international law does not offer the option of being both a civilian (by day) and a combatant (by night)”; Dinstein 2007, pp. 150–151.
- 19.
As to the applicability of domestic law to persons who engage in hostilities when not combatants, see Baxter 1952, and Ipsen 2013, pp. 82–83. As to the significance of direct participation as a potential basis for establishing a link between the individual and the relevant group, consider Ohlin 2011, available at www.scholarship.law.cornell.edu/clsops_papers/92, pp. 65–70 and 81–85. See also Stone 1954, p. 549 and Corn et al. 2012, pp. 150–156.
- 20.
Personal knowledge of the author who was a member of the Group of Experts and who attended all of the meetings except the first.
- 21.
Melzer 2009 (Interpretive Guidance).
- 22.
See the New York University Journal of International Law and Politics 42(3) (Spring 2010), which includes an extensive Forum on the topic including critiques of the Interpretive Guidance and a response by Nils Melzer. Consider also Ken Watkin’s argument that making insurgents harder to target lawfully than members of state armed forces does not enhance protection of civilians; Watkin 2012, p. 10. Note Marsh and Glabe 2011; Boothby 2012, pp. 141–164; and Solis 2011, pp. 202–206. For an evaluation of the concept of direct participation in hostilities, of the time periods during which it can properly be regarded as applying and of the concrete activities that can sensibly be interpreted as coming within the notion, see Dinstein 2010, pp. 146–152 and for a discussion of the complex question of whether voluntary human shielding can be regarded as direct participation, see Dinstein 2010, p. 154. Only where the shielding activity is genuinely and unambiguously voluntary can it be regarded as direct participation. This will not be the case with human shields who are children. Where there is doubt as to their voluntary nature, they should be regarded as involuntary human shields and should therefore be considered when the proportionality of the proposed attack is being evaluated but “the enemy’s unlawful activity may be taken into account in considering whether the incidental loss or damage was proportionate to the military advantage expected”; UK Manual 2004, para 5.22.1.
- 23.
API, Article 50(1). Yoram Dinstein concludes, evidently in relation to states not party to API, that combatants include non-members of the armed forces who take a direct part in the hostilities; see Dinstein 2010, p. 33. Combatants as defined in API consist exclusively of combatant members of the armed forces and of members of a levee en masse. It follows that the notion of unlawful combatancy, as to which see Dinstein 2010, pp. 33–39, is irreconcilable with the terms in which API, Article 43(2) is expressed, and Dinstein acknowledges that the general distinction between lawful and unlawful combatants is completely subverted; Dinstein 2010, p. 51. Gary Solis also comes to the conclusion that ‘unlawful combatancy’ does not describe a third category of person, and that unlawful combatants are a subset of civilians; Solis 2011, p. 208.
- 24.
Boothby 2012, pp. 162–163.
- 25.
See UK statement (c) on ratification of API on 28 January 1998.
- 26.
See however the comments as to the practical ability to exercise jurisdiction in Boothby 2012, p. 163 and at n. 118 thereto.
- 27.
Melzer 2009, p. 47. The associated clarification in the Interpretive Guidance makes the point that the requisite harm does not have to materialize; it is the likelihood that it will arise i.e. that it may reasonably be expected to result from the act that matters. Tony Rogers produces a list of twenty activities by civilians in the course of hostilities, and takes the view that taking a direct part in hostilities should be narrowly construed, both in terms of the activity and its duration as in his view otherwise civilian protection is placed severely at risk; Rogers 2012, pp. 14–15.
- 28.
The Interpretive Guidance also cites transmitting tactical targeting information for an attack as a possible example; Melzer 2009, p. 48.
- 29.
Melzer 2009, p. 51.
- 30.
Melzer 2009, p. 58.
- 31.
Melzer 2009, p. 64. As the Interpretive Guidance goes on to note, “all feasible precautions must be taken to avoid erroneous or arbitrary targeting”; Melzer 2009. The Interpretive Guidance then asserts that in situations of doubt, the person concerned must be presumed to be protected from direct attack, a proposition for which there is no legal basis; there is at law no basis for a suggested presumption that a civilian is not directly participating in hostilities; Boothby 2012, p. 149.
- 32.
Consider the example of the setting of an IED, which may involve a multiplicity of actors, including those who acquire and collect the ingredients, those who assemble them, those who prepare the device for actual use, those who decide where the device is to be placed, those who keep watch while the operation to deploy the device is undertaken and those who actually deploy the IED. Schmitt comments that “few states would hesitate, on the basis that the action is not ‘direct enough’, to attack those in the process of assembling IEDs”; Schmitt 2010a, p. 731. Contrast the civilian munitions factory worker who is broadly accepted as not directly participating in hostilities and thus as retaining protected civilian status. The basis of the suggested distinction is that those involved in the assembly of an IED are integral to the operation to use it, an operation likely to take place soon after, and either in the relative vicinity of its assembly or at least at a known location. The munitions factory, on the other hand, is usually remotely located from the scene of operations producing munitions for generic use in connection with the armed conflict on unspecified future occasions. On this basis it would be difficult to describe the manufacturing process as integral to any particular operation; Schmitt 2010a, p. 731 and Meyrowitz 1981, pp. 22–23.
- 33.
NWP 1–14 M, para 8.2.2.
- 34.
UK Manual 2004, para 5.3.3.
- 35.
Prosecutor v. Strugar, Case No. IT-01-42-A, Appeals Chamber judgment (17 July 2008) at paras 176–179; see also HCJ 769/02 Pub Comm against Torture in Israel v. Gov’t of Israel (Targeted Killings) (2005) at para 35.
- 36.
The loading of ammunition on an aircraft in preparation for a particular sortie is cited in the Interpretive Guidance as an example of direct participation; Interpretive Guidance at p. 66.
- 37.
Walzer 2004, pp. 139–140.
- 38.
It should be noted that if the civilian political leadership involves itself in tactical military decision making, for example in relation to decisions as to which targets should be attacked in an air campaign, this may well constitute direct participation in the hostilities thus rendering those persons liable to be attacked while engaged in those activities. Consider the involvement during the 1999 Kosovo campaign of “the President of the United States, the prime minister of Great Britain, the President of France and the president of Germany” in targeting decisions; Short 2002, p. 23. Consider also Prosecutor v. Aleksovski Case No IT-95-14/1-A, Judgment dated 24 March 2000 at para 76 and Prosecutor v. Delalic et al, Case No IT-96-21-A, Judgment dated 20 February 2001, para 197. For the capacity of modern instant communications media to short-circuit the command chain, consider Garraway 2013, pp. 201–202 where Barack Obama’s observation of the attack on Osama bin Laden’s hideout in Pakistan and Margaret Thatcher’s order to sink the General Belgrano during the Falklands War are discussed.
- 39.
See Queguiner 2003 International Humanitarian Law Research Initiative, November 2003, available at www.ihlresearch.org/ihl/pdfs/briefing3297.pdf as to the extent to which logistic support can amount to direct participation.
- 40.
Consider Eric Jensen’s point that advancing technology will increase the risk of civilians becoming unwitting direct participants; Jensen 2013, p. 18.
- 41.
- 42.
Consider API, Article 44(3) and Sandoz et al. 1987, para 1692 and note Interpretive Guidance at pp. 65–67. Such preparatory acts would include instructing, equipping and transporting personnel, gathering intelligence, preparing, transporting and positioning weapons and equipment all in preparation for undertaking a specific hostile act; Interpretive Guidance at p. 66.
- 43.
- 44.
Interpretive Guidance, at p. 65 and see Boothby 2010, pp. 750–752.
- 45.
Interpretive Guidance, at p. 70.
- 46.
- 47.
Interpretive Guidance, p. 72.
- 48.
As to the notion of ‘belonging to’ a party to the conflict, Prosecutor v. Tadic, Appeals Judgment, Case Number IT-94-1-A, 15 July 1999 at para 94 identifies control of the irregulars by a party to an international armed conflict and a relationship of dependence and allegiance between the irregulars and that party as the ingredients of the term; see also the discussion in Dinniss 2013, pp. 261–263.
- 49.
See Schmitt 2010b, p. 38 citing the case of Al Ginco v. Obama, 626 F. Supp. 2d 123 (D.D.C. 2009).
- 50.
Yoram Dinstein comments that politicians directly involved in guiding the armed forces, members of a ‘war cabinet’ and of higher councils sketching or approving military policy or strategy can be targeted, even individually; Dinstein 2010, p. 107.
- 51.
Quénivet and Shah-Davis 2010, pp. 17–18.
- 52.
For a comprehensive and balanced account of the role of private military companies, and for proposals for their regulation, see Chesterman and Lehnardt 2007 and for an authoritative assessment of the development, organization, operation and implications of such companies, see Singer 2003. See also Sassoli et al. 2011, pp. 172–175. It has, for example, been estimated that 20,000 private individuals were involved in contingency contracts for Coalition Forces during Operation Iraqi Freedom; see Security Companies: Shadow Soldiers in Iraq, New York Times, 19 April 2004, available at www.nytimes.com/2004/04/19/world/security-companies-shadow-soldiers-in-iraq.html?pagewanted=all&src=pm.
- 53.
As Avril McDonald put it, “[l]est it be assumed that these individuals are safely deployed behind the front lines and that the activities they engage in do not involve their direct participation in hostilities, it should be pointed out that, irrespective of the terms of their contracts, some individual contractors are performing essential front line roles in military operations, operating very close to or at the so-called ‘tip of the spear’”; McDonald 2007, p. 358. As to the list of activities such individuals perform, a number of which are apparently connected with the conduct of hostilities, see McDonald 2007, pp. 357–358 and consider Ipsen 2013, pp. 107–108.
- 54.
McDonald 2007, pp. 360–362.
- 55.
Ipsen 2013, p. 107.
- 56.
- 57.
As to the ICRC’s views on these matters, see ICRC Report to the 31st Conference of the Red Cross and Red Crescent, International Humanitarian Law and the challenges of contemporary armed conflicts, October 2011, pp. 33–35.
- 58.
Montreux Document on pertinent international legal obligations and good practices for states related to operations of private military and security companies during armed conflict, published by the ICRC and available at www.icrc.org/eng/resources/documents/misc/montreux-document-170908.htm viewed on 22 September 2013. For an assessment of the Document, see Cockayne 2008.
- 59.
Further details as to this initiative are available at www.icoc-psp.org viewed on 22 September 2013.
- 60.
The Code includes standards of conduct, management and governance and there is now a Charter setting out an oversight mechanism.
- 61.
For a discussion of the potential liability of contractors, first as to criminal liability at US law under, respectively, the Uniform Code of Military Justice, the Military Extraterritorial Jurisdiction Act 2000 and the War Crimes Act 1996 and second as to civil liability under US jurisdiction, for example by reference to the Alien Tort Claims Act, see McDonald 2007, pp. 386–392.
- 62.
APII, Articles 7(1) and 9(1).
- 63.
APII, Article 13(1) and (2). Provision is made in APII at Article 18 for relief action where the civilian population is suffering undue hardship owing to lack of supplies. As to the general protection of civilians during non-international armed conflicts, see Green 2008, pp. 353–355 and Rogers 2012, pp. 305–309 in which the way in which jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) supports this rule is discussed.
- 64.
See Rogers 2012, pp. 309–310 where Article 17 of APII and Article 8(2)(e)(viii) of the Rome Statute of the ICC, 1998 are discussed.
- 65.
The Manual on the Law of Non-International Armed Conflict, International Institute of Humanitarian Law, San Remo, March 2006 (NIAC Manual).
- 66.
In the Commentary to that paragraph, it is made clear that ‘fighters’ for the purposes of the Manual refers to armed forces fighting for the Government and to members of organized armed groups fighting against the government; para 1 of Commentary accompanying para 1.1.2.
- 67.
NIAC Manual, para 1.1.2(a). Note that medical or religious personnel are not regarded as ‘fighters’.
- 68.
NIAC Manual, Para 1.1.3. The result of this is that civilians who directly participate in the hostilities cease to be civilians for the purposes of the Manual and become fighters.
- 69.
NIAC Manual, Para 1.2.2.
- 70.
Consider for example, Rome Statute 1998, Article 8(2)(e), sub-paragraphs (ii) personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) personnel involved in humanitarian assistance or peacekeeping missions subject to certain conditions; (iv) places where the sick and wounded are collected; (viii) ordering the displacement of the civilian population; (xi) mutilation and medical or scientific experiments on persons in the power of another party to the conflict.
- 71.
Rogers 2012, p. 303.
- 72.
API, Article 47(2).
- 73.
An exception would be employees of a contracting company who are sponsored reserves as that term is used in the Reserve Forces Act 1996.
- 74.
- 75.
Sandoz et al. 1987, para 1805 excludes “volunteers who enter service on a permanent or long-lasting basis in a foreign army”; it is not clear whether, by analogy, a longer-term employment contract with a military company would similarly be regarded as excluding contractors’ employees from the mercenary classification. However, Yoram Dinstein interprets this first requirement as meaning that the mercenary must have been “specially recruited for a particular armed conflict”, noting that in reality they are often in the pay of well-organized private military companies, providing security services for hire; Dinstein 2010, p. 58.
- 76.
Dinniss 2013, pp. 266–267 and see Thürer 2011, pp. 252–256. Quite what action would be appropriate for these purposes will depend on the circumstances. See also the discussion at McDonald 2007, pp. 381–382 and Dewi Williams’ contention that regulation is a possible answer to the evident difficulty in achieving redress against corporate organisations for wrongdoings by their employees; Williams 2010, pp. 229–236. Consider, however, the Montreux Document, see n. 58 above, discussed at Thürer 2011, pp. 261–263.
- 77.
Thürer 2011, pp. 256–260.
- 78.
Ipsen 2013, p. 84.
- 79.
Green 2008, p. 141.
- 80.
Williams 2010, p. 227.
- 81.
International Convention against the Recruitment, Use, Financing and Training of Mercenaries, UN General Assembly, 4 December 1989; the Convention has 32 states party. The United Kingdom and United States are not party to the Convention; www.icrc.org viewed on 22 September 2013.
- 82.
Percy 2011, pp. 273–275.
- 83.
Section 3, Criminal Law Act 1967 c. 58.
- 84.
See Section 76 of the Criminal Justice and Immigration Act 2008 under which the reasonableness of the degree of force used must be decided by reference to the circumstances as the accused person believed them to be, even if that belief was mistaken, but the force used must be proportionate. If the person using force only does what he honestly and instinctively thinks necessary for a legitimate purpose, that suggests that the force used is reasonable.
- 85.
Incorporated into English domestic law by virtue of the Human Rights Act 1998.
- 86.
See McCann v. UK (1995); 21 EHRR 97 at para 212; Isayeva, Yusupova and Bazayeva v. Russia, 41 EHRR 847 (2005) at paras 190, 191 and 200.
- 87.
API, Article 50(1) and Corn et al. 2012, p. 283.
- 88.
Article 48 of API obliges Parties to the conflict at all times to distinguish between the civilian population and combatants and between civilian objects and military objectives. Article 57(1) requires that in the conduct of military operations constant care be taken to spare the civilian population, civilians and civilian objects. There are then specific protections of civilians in Article 51.
- 89.
Article 51(4) of API prohibits indiscriminate attacks which it describes as “(a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol, and, consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.” In Article 51(5) the treaty gives two examples of types of attack that are to be considered indiscriminate, namely “(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.
- 90.
Civilian objects are all objects that are not military objectives; API, Article 52(1). Military objectives are defined at API, Article 52(2) as “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”.
- 91.
API, Article 57(2)(a)(i).
- 92.
API, Article 57(2)(a)(ii).
- 93.
API, Article 57(2)(a)(iii) and 57(2)(b).
- 94.
API, Article 57(2)(c).
- 95.
API, Article 57(3).
- 96.
API, Article 58(a).
- 97.
API, Article 58(b).
- 98.
API, Article 58(c).
- 99.
Geneva Convention I, Article 12(1). The other individuals referred to here comprise those referred to in Article 13. Article 12 requires that all such wounded and sick must be treated humanely and cared for on a non-discriminatory basis by the party in whose power they are. The article spells out specific protections for the wounded and sick.
- 100.
Geneva Convention II, Articles 12 and 13. Article 12 provides similar safeguards to those in Article 12 of Geneva Convention I.
- 101.
Geneva Convention I, Article 24. Staff of National Red Cross and of voluntary aid societies that are duly recognized and authorized by their governments and that are employed on the same duties are placed in the same position if they are subject to military laws and regulations; Article 26(1). On capture, persons covered by Article 24 or 26(1) have the status of retained personnel under Article 28.
- 102.
Geneva Convention I, Article 25. On capture, such persons are prisoners of war to whom Article 29 applies.
- 103.
Geneva Convention II, Article 36. They may not be captured while in the service of the hospital ship irrespective whether there are wounded and sick on board.
- 104.
In case of doubt as to his status, he retains the status of prisoner of war until the doubt is resolved by a competent tribunal; API Article 45(1) and Geneva Convention III, Article 5(2).
- 105.
Geneva Convention IV, Article 4(1). This does not apply to nationals of neutral or co-belligerent states that retain diplomatic relations with the state in whose hands the person is; Geneva Convention IV, Article 4(2). Consider the finding of the ICTY Appeals Chamber that the nationality criterion now rests on allegiance and effective protection; ICTY, Prosecutor v. Tadić, Case No. IT-94-1-A, Appeal Judgement, 15 July 1999, paras 164–166; see also ICC, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para 266. For a discussion of the protection of civilians under Geneva Convention IV, see Corn et al. 2012, pp. 294–301.
- 106.
Geneva Convention IV, Article 13.
- 107.
Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, Article 15.
- 108.
API, Article 8(a) and (b). ‘Wounded and sick’ include maternity cases and newborn babies. The ‘shipwrecked’ include military and civilian persons provided they refrain from acts of hostility.
- 109.
Medical personnel are persons assigned whether permanently or temporarily by a Party to the conflict exclusively to the search for, collection, transportation, diagnosis or treatment including first aid treatment of the wounded, sick and shipwrecked, for the prevention of disease, the administration of medical units, or the operation or administration of medical transports; API, Article 8(c) and (e). They may be military or civilian and may include medical personnel of national Red Cross or Red Crescent or voluntary aid Societies recognized and authorized by a party to the conflict.
- 110.
Religious personnel may be military or civilian, must be exclusively engaged in the work of their ministry and attached to the armed forces of a Party to the conflict, to the medical units, transports or civil defence organisations of such a Party or certain other medical units or civil defence organisations; API, Article 8(d).
- 111.
Personnel of civil defence organisations and civilians who, though not members of such organisations, nevertheless respond to an appeal by the relevant authorities and perform civil defence tasks, as defined in Article 61(a), are to be respected and protected in accordance with Articles 61(c) and 62. See also Article 67 as to members of the armed forces assigned to civil defence organisations.
- 112.
API, Article 10.
- 113.
API, Article 15.
- 114.
API, Article 16.
- 115.
API, Article 41(1). A person is hors de combat if he is in the power of an adverse party, clearly expresses his intention to surrender or has been rendered unconscious or is otherwise incapacitated by wounds or sickness and is therefore incapable of defending himself, provided, in any of these cases, that he abstains from any hostile act and does not attempt to escape; API, Article 41(2).
- 116.
Consider for example the provisions as to the protection of women and children in API Articles 76–78. These are important provisions because of the increasing dangers that women and children face in modern armed conflicts. For a discussion of these and related issues, see Quénivet and Shah-Davis 2010, pp. 20–22.
- 117.
For a discussion of the factors that are driving outsourcing by the armed forces, see McDonald 2007, pp. 370–372.
- 118.
Reserve Forces Act 1996, 1996 c. 14, Part V.
- 119.
Sassoli et al. 2011, pp. 163–164. Those authors note this issue, the targeting of civilians in ‘ethnic cleansing’ operations, the tendency to attack defenceless civilians if the fighter’s aim is to earn a living by looting etc. and the accomplishment of regime change by pressurizing the civilian population rather than by securing battlefield victory as all challenging the principle of distinction; Sassoli et al. 2011, p. 164.
- 120.
For the definition of ‘military objective’, see n. 90 above. In the modern digital age, the supply of computing capacity to military units and headquarters clearly contributes to military action, both conventional military action and military cyber operations, with the result that destroying the relevant factories, the associated storage warehouses, the supply depots and/or the servicing and repair facilities will offer a definite military advantage.
- 121.
See n. 32 above.
- 122.
See n. 32 above.
- 123.
The discrimination rule in Article 51(4) of API, the proportionality rule in Article 51(5) of API and the precautions in attack prescribed by Article 57 of API would all have to be complied with.
- 124.
See Tallinn Manual, Rule 78: “It is prohibited to conscript or enlist children into the armed forces or to allow them to take part in cyber hostilities.” See also Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000, Articles 1 and 2; API, Article 77(2); APII, Article 4(3); and Dinniss 2013, pp. 267–268.
- 125.
Jensen 2013, p. 18–19.
- 126.
The combatant requirement of responsible command seeks to limit participation in war by rogue actors and enables unlawful activity to be traced to responsible leaders, thus providing a potential basis for claims to reparations; Watts 2009, p. 391 at p. 437. As Heather Dinniss observes, “there is no reason in principle that armed groups who are structured as a network should be excluded from legitimate combatant status if they are able to maintain discipline, carry out concerted military operations, and meet the other requirements of combatant status”; “if the group does not have sufficient organization, whether in network or hierarchical form, to maintain discipline and supervision, its members cannot be lawful combatants”; Dinniss 2013, p. 260.
- 127.
APII, Article 13(3).
- 128.
See the discussion in Ipsen 2013, pp. 89–90 and for a critical assessment of the meaning and effect of Article 44(3) of API see Dinstein 2010, pp. 51–55 and Solis 2011, pp. 125–129 where the irony is noted that Article 44(3) allows the feigning of civilian non-combatant status, while Article 37 of API prohibits perfidy of which feigning civilian, non-combatant status is cited as a specific example. This incompatibility, Gary Solis believes, “illustrates the compromises that the drafters felt necessary to incorporate, hoping to induce liberation movements to recognize and conform to LOAC”; Solis 2011, p. 129. Frits Kalshoven and Liesbeth Zegveld also see the rules and exceptions in Article 44 as a compromise which in their view goes a long way to meeting the interests of competing interests although they comment that in the time since adoption of API “implementation of the new rules in situations of actual hostilities has not made any progress”; Kalshoven and Zegveld 2011, p. 90. Hays Parks also regards Article 44(3) as an unrealistic interpretation of the law of war as it applies to personnel, contending that a civilian should be targetable if his immunity from military service is because his continued service in his civilian position is of greater value to his nation’s war effort than his service in the military would be; Hays Parks 1990, pp. 134–135. Note the US objection that Articles 43(1) and 44(3) enable members of irregular armed groups to hide themselves among the civilian population; Corn et al. 2012, p. 142. Tony Rogers argues that the idea that civilians should have a quasi-combatant status depending on what job they do takes little account of the confusion that would be caused; Rogers 2012, p. 13.
- 129.
Article 44(3) goes on to refer to “situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself”. The circumstances discussed in this section are not such a situation.
- 130.
See the discussion of CIA remotely piloted operations in Pakistan, Yemen, Somalia, Afghanistan and Iraq in Targeting Operations with Drone Technology: Humanitarian Law Implications, Background Note for the American Society of International Law Annual Meeting, 25 March 2011, pp. 25–37.
- 131.
Sandoz et al. 1987, para 1692.
- 132.
API, Article 44(3) and see the discussion in the previous section.
- 133.
This is also likely to be a considerable challenge where cyber activities that in peacetime are undertaken by, e.g. civilian employees of national communications security agencies, need to be continued in periods of armed conflict.
- 134.
There will continue to be occasions when the state’s armed forces are deployed to assist the civil authorities without the resulting situation being regarded as a non-international armed conflict.
- 135.
I.e. members of the armed forces who are not medical or religious personnel as defined in API.
- 136.
The Interpretive Guidance describes the general war effort as including “all activities objectively contributing to the military defeat of the adversary” and examples cited are design, production and shipment of weapons and military equipment and construction or repair of infrastructure outside the context of concrete military operations. War-sustaining activities would also, according to the Interpretive Guidance, not amount to direct participation, and these would include political, economic or media activities supporting the general war effort such as propaganda, financial transactions and production of agricultural or other non-military industrial goods; Interpretive Guidance, p. 51.
References
API—Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, adopted in Geneva on 8 June 1977
APII—Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, also adopted in Geneva on 8 June 1977
Baxter RR (1952) So-called ‘unprivileged belligerency’: spies, guerillas and saboteurs. Br Yearbook Int Law 28:323 et seq
Boothby WH (2010) And for such time as: the time dimension to direct participation in hostilities. NYUJILP 42(3):741–768
Boothby WH (2012) The law of targeting. Oxford University Press, Oxford
Chesterman S, Lehnardt C (eds) (2007) From mercenaries to market, the rise and regulation of private military companies. Oxford University Press, Oxford
Cockayne J (2008) Regulating private military and security companies: the content, negotiation, weaknesses and promise of the Montreux document. J Conflict Securi Law 13(3):401–428
Corn GS, Hansen V, Jackson RB, Jenks C, Jensen ET, Schoettler JA (2012) The law of armed conflict: an operational approach. Wolters Kluwer Law & Business, New York
Dinniss HH (2013) Participants in conflict—cyber warriors, patriotic hackers and the laws of war. In: Saxon D (ed) International humanitarian law and the changing technology of war. Brill Academic Publishers, Leiden, pp 251–278
Dinstein Y (2007) The system of status groups in international humanitarian law. In: Heintschel von Heinegg W, Epping V (eds) International humanitarian law facing new challenges. Springer, Berlin, pp 145–156
Dinstein Y (2010) The conduct of hostilities under the law of international armed conflict, 2nd edn. Cambridge University Press, Cambridge
Garraway CHB (2007) ‘Combatants’—substance or semantics? In: Schmitt M, Pejic J (eds), International law and armed conflict: exploring the faultlines. Brill Academic Publishers, Leiden, pp 317–334
Garraway CHB (2013) The application of superior responsibility in an era of unlimited information. In: Saxon D (ed) International humanitarian law and the changing technology of war. Brill Academic Publishers, Leiden, pp 187–206
Gelzis G (2011) Estonian voluntary cyber soldiers integrated into national guard. Deutsche Welle, 5 April 2011. www.dw.de/estonian-voluntary-cyber-soldiers-integrated-into-national-guard/a-14968102
Green LC (2008) The contemporary law of armed conflict, 3rd edn. Juris Publishing, Huntington
Hays Parks W (1990) Air war and the law of war. Air Force Law Rev 32(1):1–226
Ipsen K (2013) Combatants and non-combatants. In: Fleck D (ed) The handbook of international humanitarian law, 3rd edn. Oxford University Press, Oxford, pp 79 et seq
Jensen ET (2013) Future war, future law. Minnesota J Int Law 22:282–323
Kalshoven F, Zegveld L (2011) Constraints on the waging of war, 4th edn. Cambridge University Press, Cambridge
Kolb R, Hyde R (2008) An introduction to the international law of armed conflicts. Hart Publishing, Oxford
Krawka E (1990) The current status of mercenaries in the law of armed conflict. HICLR 14:67 et seq
Marsh JJ, Glabe SL (2011) Time for the United States to directly participate. Virginia J Int Law 1:13–25
McDonald A (2007) Ghosts in the machine: some legal issues concerning US Military contractors in Iraq. In: Schmitt MN, Pejic J (eds) International law and armed conflict: exploring the faultlines. Brill Academic Publishers, Leiden, pp 357–402
Melzer N (2009) Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law. International Committee of the Red Cross, Geneva
Melzer N (2010) Keeping the balance between military necessity and humanity: a response to four critiques of the ICRC’s interpretive guidance on the notion of direct participation in hostilities. NYUJILP 42(3):831–916
Meyrowitz H (1981) Le bombardement stratégique d’après le protocol additionnel 1 aux Conventions de Genève. ZaÖRV 41:1–68
NIAC Manual (2006) International Institute of Humanitarian Law Manual on the Law of Non-International Armed Conflict, with Commentary. Sanremo, March 2006
Ohlin J D (2011) Targeting co-belligerents. Cornell law faculty working papers paper 92. www.scholarship.law.cornell.edu/clsops_papers/92
Pejic J (2007) ‘Unlawful enemy combatants’, interpretations and consequences. In: Schmitt M, Pejic J (eds) International law and armed conflict: exploring the faultlines. Brill Academic Publishers, Leiden, pp 335–356
Percy S (2011) The changing character of private force. In: Strachan H, Scheipers S (eds) The changing character of war. Oxford University Press, Oxford, pp 259–281
Queguiner J-F (2003) Direct participation in hostilities under international humanitarian law, briefing paper, International humanitarian law research initiative. www.ihlresearch.org/ihl/pdfs/briefing3297.pdf
Quénivet N, Shah-Davis S (2010) Confronting the challenges of international law and armed conflict in the 21st century. In: Quénivet N, Shah-Davis S (eds) International law and armed conflict: challenges in the 21st century. T.M.C. Asser Press, The Hague, pp 3–30
Roberts A (2011) The civilian in modern war. In: Strachan H, Scheipers S (eds) The changing character of war. Oxford University Press, Oxford, pp 357 et seq
Rogers APV (2012) Law on the battlefield, 3rd edn. Manchester University Press, New York
Sandoz Y, Swinarski C, Zimmermann B (eds) (1987) Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I). ICRC/Martinus Nijhoff Publishers, Geneva
Sassoli M, Bouvier A, Quintin A (2011) How does law protect in war?, 3rd edn. International Committee of the Red Cross, Geneva
Schmitt MN (2004) Direct participation in hostilities and 21st century armed conflict. In: Crisis management and humanitarian protection, festschrift for Dieter Fleck. Berliner Wissenschafts-Verlag, Berlin, pp 505–529
Schmitt MN (2006) Asymmetrical warfare and international humanitarian law. In: Heintschel von Heinegg W, Epping V (eds) International humanitarian law facing new challenges. Springer, Berlin, pp 11–48
Schmitt MN (2010a) Deconstructing direct participation in hostilities: the constitutive elements. NYUJILP 42(3):697–739
Schmitt MN (2010b) The interpretive guidance on the notion of direct participation in hostilities: a critical analysis. Harvard Natl Secur J 1:5 et seq
Short M (2002) Operation allied force from the perspective of the NATO commander. Intl Law Stud 78:19 et seq
Singer P W (2003) Corporate warriors, the rise of the privatized military industry. Cornell University Press, Ithaca
Solis GD (2011) The law of armed conflict. Cambridge University Press, Cambridge
Stone J (1954) Legal controls on international conflict. Rinehart, New York
Tallinn Manual—Tallinn manual on the international law applicable to cyber warfare, 2013. Cambridge University Press, Cambridge
UK Manual (2004) Joint Service Manual of the Law of Armed Conflict, 2004 Edition, UK Ministry of Defence
Wall AE (2007) Civilian detentions in Iraq. In: Schmitt MN, Pejic J (eds) International law and armed conflict: exploring the faultlines. Brill Academic Publishers, Leiden, pp 413 et seq
Walzer M (2004) Arguing about war. Yale University Press, London
Watkin K (2010) Opportunity lost: organised armed groups and the ICRC ‘Direct participation in hostilities’ interpretive guidance. NYUJILP 42(3):641 et seq
Watkin K (2012) ‘Small wars’: the legal challenges. USNWC Int Law Stud 88:3–12
Watts S (2009) Combatant status and computer network attack. Virginia J Int Law 50(2):391–447
Williams D (2010) Private regulation of private military companies: a potentially private solution to a commercial problem? In: Quénivet N, Shah-Davis S (eds) International law and armed conflict: challenges in the 21st century. T.M.C. Asser Press, The Hague, pp 227–240
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2014 T.M.C. Asser Press and the author
About this chapter
Cite this chapter
Boothby, W.H. (2014). People and the Legal Spectrum of Conflict. In: Conflict Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-002-2_7
Download citation
DOI: https://doi.org/10.1007/978-94-6265-002-2_7
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-001-5
Online ISBN: 978-94-6265-002-2
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)
