The Status of Opposition Fighters in a Non-International Armed Conflict

• Author: Michael N. Schmitt
• Position: Chair of Public International Law, Durham University Law School, United Kingdom
• Pages: 119-144

VI

The Status of Opposition Fighters in aNon

International Armed Conflict

Michael N. Schmitt*

The treaty law applicable to the classification of participants in anon-

international conflict is limited to Common Article 3 to the 1949 Geneva

Conventions 1and the 1977 Additional Protocol II. 2The former is generally

deemed reflective of customary international law, whereas the latter is not (al-

though certain individual provisions thereof certainly are). 3Other treaties apply

during non-international armed conflicts, but do not bear on the issue of classify-

ing those involved in the conflict.4

Common Article 3, which appears in each ofthe four Geneva Conventions, pro-

vides no specific guidance as to who qualifies as a"Party to the conflict," although

subsequent case law has clarified that the article encompasses conflict at acertain

level of intensity that occurs between aState's armed forces and organized armed

groups, or between such groups. 5Textually, the article merely refers to "persons

taking no active part in hostilities," including "members of the armed forces" who

are hors de combat.6The reference is somewhat useful in that it suggests anorma-

tive distinction between those who actively participate in anon-international

armed conflict and those who do not. Yet, the failure to address party status

*Chair of Public International Law, Durham University Law School, United Kingdom. Profes-

sor Schmitt became the Chairman, International Law Department, U.S. Naval War College on

October 1,2011.

The Status of Opposition Fighters in aNon-International Armed Conflict

directly is unfortunate, for it begs the question of when non-State individuals or

groups qualify as aparty. Complicating the issue of participant classification is the

fact that Common Article 3makes no mention of the category "civilians."

Additional Protocol II contains slightly more granularity in its provision on the

instrument's material field of application. Article 1extends coverage to "all armed

conflicts" between the armed forces of aState party to the Protocol and "dissident

armed forces or other organized armed groups which, under responsible com-

mand, exercise such control over apart of its territory as to enable them to carry

out sustained and concerted military operations and to implement this Protocol."7

This is ahigher threshold of applicability than that of Common Article 3in two re-

gards.8First, it does not include conflicts that are solely between organized armed

groups; aState must be involved.9Second, the group in opposition to the govern-

ment must exercise acertain degree ofcontrol over territory. The higher thresholds

are not dealt with in this chapter, as they bear on the law that applies to aconflict,

not on the status of its participants. What is significant with regard to classification

of participants, though, are the references to dissident armed forces and organized

armed groups.

Additional Protocol II also adopts the notion of "civilian," most notably in Ar-

ticle 13 on the "protection of the civilian population." That article extends "gen-

eral protection against the dangers arising from military operations" to civilians,

and specifically prohibits both attacks against them and any actions intended to

terrorize the civilian population, but withdraws said protection "for such time as

they take adirect part in hostilities." 10 Unfortunately, Additional Protocol II, in

contrast to its international armed conflict counterpart, offers no definition of the

term "civilian." 11

Taking the two treaties together, and in light of Common Article 3's customary

status, it can be concluded that two broad categories of non-international armed

conflict participants lie in juxtaposition: civilians and organized armed groups.

The former can be subdivided into those who directly participate in hostilities and

those who do not. Organized armed groups consist of aState's armed forces, dissi-

dent armed forces or "other" organized armed groups.

This chapter examines the three types of "opposition fighters"—dissident

armed forces, other organized armed groups and civilians directly participating

in hostilities. Acompanion contribution to the volume deals with the status of

government fighters. The chapter does not address the criteria for the existence

of anon-international armed conflict, the subject of other contributions, except

as that topic bears on classification of participants. 12 Accordingly, it does not

explore such contentious topics as whether anon-international armed conflict

can exist during abelligerent occupation, the legal status of aconflict with

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