Present and Future Conceptions of the Status of Government Forces in Non-International Armed Conflict

AuthorSean Watts
PositionAssociate Professor, Creighton University Law School; Reserve Instructor, Department of Law, United States Military Academy
Pages145-180
VII
Present and Future Conceptions of the Status
of Government Forces in Non-International
Armed Conflict
Sean Watts*
Introduction
It seems there are two types of international lawyersthose who view apparent
legal voids as vacuums to be filled by international law and those who view legal
voids as barriers to the operation of international law. Voids, and for that matter
ambiguity, provoke different reactions from different international lawyers. How
an international lawyer or tribunal regards an apparent legal void may be, to bor-
row apoker term, one of the great international law "tells." In addition to provid-
ing doctrinal or descriptive clarity, resolutions of voids usually expose alawyer's
level of confidence in the international legal system as well as his or her outlook on
the propriety of sovereignty-based regulation.
Disagreement over the significance of international legal voids is not merely ac-
ademic. To the contrary, debate over perceived or real legal voids between inter-
national law interpretive camps quickly brings questions of abstract legal theory
into the practical worlds of international policy and practice. Even the hardened
international-rule skeptic must see that States' conceptions of international law
translate almost directly into policy. 1With respect to the international law of war,
*Associate Professor, Creighton University Law School; Reserve Instructor, Department of Law,
United States Military Academy.
Status of Government Forces in Non-International Armed Conflict
such interpretations can produce widespread life-or-death consequences and,
with the rebirth of international criminal law, severe criminal sanctions.
Legal voids exist and operate nowhere more clearly and widely in international
law than in the laws of war applicable to non-international armed conflicts
(NIACs), understood classically as civil wars.2In purely quantitative terms, the
positive law of NIAC pales in comparison to the law-of-war provisions applicable
to conflicts between States.3For example, the 1949 Geneva Conventions, including
their 1977 updates, contain well over five hundred substantive articles applicable
to international armed conflict (IAC) 4yet fewer than thirty applicable to NIAC.
There is thus no small irony in the fact that the modern law of war actually traces
its beginning to adocument created to regulate conduct in acivil war. 5Yet ever
since, States have rejected invitations and proposals to level the positive legal gap
between IAC and NIAC. The result has been what some regard as glaring legal
voids regarding the latter.6
Status of government actors in NIAC provides an intriguing and specific exam-
ple of just such avoid. Whereas the protections and obligations of the law of IAC
are premised almost entirely on the status of affected persons, the law of NIAC
spurns such classifications, as well as the IAC taxonomy of status-based protection
generally. International lawyers have long regarded status of persons as largely ir-
relevant to NIAC.7Yet modern forms of conflict and State responses may soon
place pressure on the NIAC status void. Increasing media attention, growing inter-
national oversight and progressively heightening sensitivity to the suffering pro-
duced by NIAC conspire to match the legal protective regime of NIAC with that of
IAC, including perhaps the latter's use of status.
Status in IAC describes anumber of circumstances and legal relationships (e.g.,
wounded, wounded at sea, prisoner-of-war, or civilian status). This chapter
focuses on the use of status to determine lawfulness of participation in hostilities,
or what is sometimes referred to in IAC as combatant status. 8In particular, this
chapter explores the extent to which the international law of NIAC regulates the
status of persons who participate in hostilities on behalf of the State.
This chapter begins by addressing the descriptive question whether the interna-
tional law of NIAC speaks to government forces' status at all. An analytical section
accompanies, offering explanations of the likely influences behind the state of the
law. Apredictive effort follows, addressed to the question whether the law is set-
tled or instead likely to change. This section identifies anumber of pressures con-
spiring to fill the NIAC status void. An argument in favor of imposing status-like
limitations on government forces in NIAC is derived from the law-of-war principle
of distinction, and then rebutted by logical, structural and operational arguments.
The chapter concludes by addressing aseries of considerations related to the chapter's
146
Sean Watts
opening generalization about international legal voids as an opportunity to reflect
more deliberately on an appropriate interpretive approach to the law of NIAC.
The International Legal Status of Government Forces in NIAC
The law of war is riddled with categoriescategories of conflicts, 9categories of
weapons, 10 categories of persons. With respect to persons, the primary byproduct
of these categories is an elaborate system of status for individuals participating, or
caught up, in armed conflict. Principled application of the law requires adeep un-
derstanding of how the law of war employs status. 11 Just as the law of war confers
status to implement its humanitarian goals, the law's denial of status often pro-
duces disappointing or even inhumane results. Frequently, the complexities and
nuances of status seem to frustrate alignment of legally correct outcomes with in-
tuitively moral or normatively desirable outcomes. Agreat many ofthe present and
past errors in the application of the law of war are attributable either to failure to
understand how status attaches and operates in armed conflict or simply to unwill-
ingness to accept the practical consequences of correct status determinations. 12
In war between States, status plays out primarily in the allocation of the
protections and obligations of the law ofwar. Nearly every important protection of
the law of IAC requires apredicate determination of the status of persons seeking
protection. 13 Aprominent commentator observed with respect to IAC, "Every per-
son in enemy hands must have some status under international law . . .;nobody in
enemy hands can be outside the law." 14 In most cases, protection from intentional
targeting requires the status of civilian, 15 that of wounded person 16 or, generally,
that of hors de combat. Persons qualifying for wounded or civilian status receive
protection from attack "unless and for such time as they take direct part in
hostilities." 17 To benefit from the most elaborate law-of-war treatment obliga-
tions, persons in the hands of an adversary must qualify for wounded and sick, 18
prisoner-of-war 19 or protected-person status. 20 The 1949 Geneva Convention on
Civilians includes subcategories of civilian, including the "populations of countries
in conflict," 21 "national[s] of neutral state[s]"22 and "interned protected per-
sons."23 The law further classifies members of the armed forces into subcategories
of combatant and non-combatant.24
In addition to allocating protection, the law of war uses status to deny protec-
tion and treatment obligations. Designation as a spy, mercenary, or, somewhat
more controversially, an unprivileged belligerent, unlawful combatant, saboteur
or guerilla can greatly reduce or alter aperson's protection or treatment under the
law of war.25 Status has been the focus of not only operational, humanitarian and
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