Abstract: From ancient times international humanitarian law has prevailed. This can be defined as the body of international law governing the conduct of armed conflicts. Armed conflicts can be international and non-international. Based on the category of armed conflicts international humanitarian law has guiding principles. This includes combatants, civilians, armies, belligerents, medical personnel, and many other categories. Being a combatant in non-international armed conflict has some controversies. In this paper, the controversies and challenges of this combatant status are discussed as detailed as possible.
Keywords: Armed conflicts, combatant status, significance and challenges of combatant status
Armed conflicts around the globe pose a radical exception to the normal moral paradigm. International humanitarian law sets the rules and boundaries for armed conflicts. Absolute warfare is meant to end for peace. But it ends in a way of total destruction of another party. That is why there is a need for an alternative to absolute warfare where armed conflicts will be conducted in such a way as to leave an open possibility of lasting peace. This is the doctrine of humanitarianism. Humanitarianism brings moral limits back into war by seeking to moderate the effects of warfare. This is the idea of ideal human morals against the exceptional nature of warfare. International humanitarian law has several doctrines, conventions, and protocols for protecting civilians as well as combatants. But when it comes to the protection of combatants, there are several controversies. The core dilemma arises when there is a non-international armed conflict. Will the international humanitarian law be applicable in non-international armed conflicts? To get into a detailed discussion of the controversies and challenges there is a need to understand the concept of combatants, the significance of their status, and then the challenges and controversies of this status in non-international armed conflict.
Who are Combatants?
Article 4 of the Geneva Convention defines combatants in two categories. The first category is the persons who are members of the regular armed forces of a party to the conflicts. The second category comprises of other armed groups, such as militias and volunteer corps who meets certain criteria. They will:
- Be under responsible command
- Bear a fixed, distinctive sign recognizable at a distance,
- Carry arms openly, and
- Respect the requirements of international humanitarian law.
The term combatant is often used in different ways. It can be used to describe the conduct of all those who fight within an armed conflict, whether they have a lawful right to do so or not; or it can be used in a more technical sense, to refer to the status of those who have a lawful right to fight. When it is referred to as combatant that is used in terms of its technical sense, in other words: those who have a lawful right to fight under international humanitarian law (IHL). When it is referred to the combatant status it is being referred to the group of rights which attach to those who have a lawful right to fight under IHL.
Combatant status in non-international armed conflict: It sometimes discussed that there is no such thing as combatant status in non-international armed conflict. The definition of combatant status is found in article 4 of the Geneva Convention III and article 3 of the Additional Protocol I. Neither of these articles applies to the non-international armed conflicts. Also, the significant benefit of a combatant status is to have the benefit of prisoner of war status or the immunity trial. But in non-international armed, there is no applicability of these things. Rather they can be domestically prosecuted for their hostile actions. Common Article 3 of the Geneva Conventions and Additional Protocol II refer to “armed forces” and Additional Protocol II also to “dissident armed forces and other organized armed groups”. These concepts are not further defined in the practice pertaining to non-international armed conflicts. While State armed forces may be considered combatants for purposes of the principle of distinction practice is not clear as to the situation of members of armed opposition groups. Practice does indicate, however, that persons do not enjoy the protection against attack accorded to civilians when they take a direct part in hostilities.
Persons taking a direct part in hostilities in non-international armed conflicts are sometimes labeled “combatants”. For example, in a resolution on respect for human rights in armed conflict adopted in 1970, the UN General Assembly speaks of combatants in all armed conflicts. The term combatant was also used in the Cairo Declaration (sections 68-69) and the Cairo Plan of Action (section 82) for both types of conflicts. However, this designation is only used in its broad meaning and indicates that these persons do not enjoy the protection against attack accorded to civilians, but this does not imply a right to combatant status or prisoner-of-war status, as applicable in international armed conflicts. The lawfulness of direct participation in hostilities in non-international armed conflicts is governed by national law. Treaty provisions use different designations that can apply to combatants in the context of non-international armed conflicts, including persons taking an active part in the hostilities; members of dissident armed forces or other organized armed groups; civilians who take a direct part in hostilities; and combatant adversary.
The ICRC adopts a case-by-case approach, based on the available facts, in determining the legal regime that governs the status and rights of persons detained in connection with what is called the ‘global war on terror’. If a person is detained in relation to international armed conflict, the relevant treaties of IHL fully apply. If a person is detained in connection with a non-international armed conflict, the deprivation of liberty is governed by Article 3 common to the four Geneva Conventions, other applicable treaties, customary international law, and other bodies of law such as human rights law and domestic law. If a person is detained outside an armed conflict, it is only those other bodies of law that apply.
Article 43(2) of the Additional protocol I designates the combatants as the primary agents of warfare under international humanitarian law. However, the provision is open to two different interpretations. One interpretation is that it says that combatants have the right to participate directly in hostilities. That makes it a violation of IHL for a non-combatant to engage directly in armed conflict. The second notion is that it does not certainly imply that non-combatants lack that right but to emphasize that captured combatants cannot be executed or penalized for merely being on the wrong side of the conflict. Article 43(2) therefore reinforces the prohibition on reprisals against a prisoner of war.
According to Hohfeld, there are other significance of the combatant status of article 43(2). It has been conferred as privilege or liberty as in combatants are free to participate in hostilities and non-combatants are not. He described it as “immunity”. Combatants enjoy immunity against punishment merely for taking part in hostilities. Non-combatants have no such immunity, but this does not mean they are prohibited from taking up arms.
Although non-combatants who fight are bound by the same legal rules as any other fighter. They cannot directly attack civilians or their property. They may also be liable to prosecution under the law of the detaining power for their hostile actions since they do not benefit from the combatant immunity recognized in article 43(2).
This shows how significant is the combatant status. The differences between the benefits of a combatant and a non-combatant reflect that combatants enjoy a wide range of benefits under this article.
Challenges and controversies of combatant’s status in non-international armed conflict: However, there are also some challenges to denying the existence of this status. The most dangerous consequence is that it risks undermining respect for the principle of distinction. There can be no doubt that the principle of distinction applies in non-international conflicts. Article 13(2) of Additional Protocol II prohibits attacks against civilians. This is customary international law applicable to all kinds of armed conflicts. This distinction can meaningfully be drawn between civilians and combatants. The other problem is that if the combatant status does not apply in non-international armed conflict then captured fighters in such conflicts are entirely at the mercy of the enemy. This is far from the case even though the provisions of Geneva Convention III and Additional Protocol I do not apply. Captured fighters in internal conflicts can enjoy a range of protections under international law. The common article 3 to the Geneva Convention and articles 4, 5, 6 of the Additional Protocol II defines this benefit.
As stated earlier, the most significant benefit of the combatant status is “prisoner of war” entitlement. This status gives a combatant a wide range of rights including their livelihood, behaviors, treatments, and rules to follow after their death. But it is under the Geneva Convention III and like other Geneva Convention of 1949, it also applies to international armed conflicts. So it comes to non-international armed conflicts, it becomes really controversial. The prisoner of war status does not apply in non-international armed conflicts. However, there is a narrow understanding of prisoner of war status under Geneva Convention III. Prisoners of war are belligerents placed hors de combat by reason of capture. The person enjoys special protection in armed conflicts of all kinds. It guarantees such persons humane treatment and freedom from violence, outrages against personal dignity, and punishment without due process.
Captured fighters of non-international armed conflict are also entitled to the protection of armed conflicts in articles 4 and 5 under Additional Protocol II. Article 4 emphasizes that the protection applies to all persons who have ceased to take part in hostilities whether or not their liberty has been restricted. Article 5 then provides further protections for persons deprived of their liberty for reasons related to the armed conflict. It also underlines that persons detained in non-international armed conflicts are entitled to food and drinking water, healthy conditions, and protection from the elements. They are also entitled to religious freedom. Not only this but also if they are made to work their working condition should be comparable to the local population and as such protections while captured. Fighters who are captured in non-international armed conflicts are further protected by article 6 of the Additional Protocol II. Although it is not detailed protection that provides the Geneva Convention but still it claims that a form of prisoner of war status also exists in non-international conflicts. Captured are protected in both types of conflicts.
The most important difference that creates a challenge for the combatants of non-international conflict is that the combatant of the international conflict has the right to take part in warfare and may not be punished for doing so. But belligerents in non-international conflicts are liable to prosecution under domestic law for their hostile actions. However, any such prosecution under the domestic law is required to abide by the due process guarantees expressed in Common article 3 and Additional Protocol II.
There are several controversies and challenges for being a combatant in non-international armed conflict. There may be no specific protection for them in Geneva Conventions but the above discussion proves that no person is out of the protection of the international humanitarian law. The combatants of non-international armed conflict might face less detailed protection from the Geneva Convention and at the mercy of the domestic prosecution but still, there is other additional protection that can suffice the lack of benefits and help to face the challenge.
International humanitarian law faces a lot of challenges and controversies on its way along. Combatant status is one of them. The reason behind this is the ongoing emergence of new weapons, changing types of conflicts, and the political dynamics of the international community. Armed conflicts continue to emerge in different forms, especially civil wars. When it comes to non-international conflicts IHL faces controversies and challenges without any doubt. This paper tried to focus on these challenges and also showed that several articles widely crossed international humanitarian law which encompasses the safety area for combatants in non-international armed conflict. In brief, the main difference between the combatants of international armed conflict and non-armed conflict is that combatants involving in international armed conflict will not face trial for participating in hostilities. But combatants of non-international armed conflicts can face domestic prosecution but not unprotected. International humanitarian law made sure that all persons get the chance of a fair trial and humane treatment during the captured days.
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