VII. Unlawful Combatancy

• Author: Yoram Dinstein
• Pages: 149

Panel II - Jus in Bello

Moderator:

Colonel David Graham

Judge Advocate, US

Army Chief, International & Operational Law Division

Department of the Army

Presenters:

Professor Yoram Dinstein

International Human Rights Law Institute

DePaul University College of Law

Professor Sir Adam Roberts

Oxford University

Commentators:

Colonel Charles Garraway

Army Legal Services

United Kingdom

Professor Leslie Green

Professor Emeritus

University of Edmonton

Lieutenant Colonel Tony Montgomery

Judge Advocate, US Air Force

Deputy Staff Judge Advocate

US Special Operations Command

VII. Unlawful Combatancy - Yoram Dinstein.

Under the jus in bello, combatants are persons who are either members of the armed forces (except medical and religious personnel) or-irrespective of such membership-who take an active part in hostilities in an international armed conflict.2 The jus in bello posits a fundamental principle of distinction between combatants and non-combatants (i.e., civilians).3 The goal is to ensure in every feasible manner that inter-state armed conflicts be waged solely among the combatants of the belligerent parties. Lawful combatants can attack enemy combatants or military objectives, causing death, injury and destruction. By contrast, civilians are not allowed to participate in the 1. Professor Yoram Dinstein is the Charles H. Stockton Professor of International Law, US Naval War College, Newport, Rhode Island.

2. See A.P.V. ROGERS & P. MALHERBE, MODEL MANUAL ON THE LAW OF ARMED CONFLICT 29 (ICRC, 1999).

3. See Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, [1996] I.C.J.

REPORTS 226, 257.

fighting. As a complementary norm, civilians 'enjoy general protection against dangers arising from military operations.'4

It is not always easy to define what an active participation in hostilities denotes. Sometimes, the reference is to 'direct' participation in hostilities.5 But the adjective 'direct' does not shed much light on the extent of participation required. For instance, a person who gathers military intelligence in enemy controlled territory and a driver delivering ammunition to firing positions are generally acknowledged as actively taking part in hostilities (although merely assisting in the general war effort does not suffice).6

A civilian may convert himself into a combatant. In fact, every combatant is a former civilian: nobody is born a combatant. In the same vein, a combatant may retire and become a civilian. But at any given point a person is either a combatant or a civilian: he cannot (and is not allowed to) be both at the same time, nor can he constantly shift from one position to the other.

Whether on land, by sea or in the air, one cannot fight the enemy and remain a civilian. Interestingly, this general norm first began coalescing in the law of sea warfare. By the time of the Declaration of Paris of 1856, Article 1 proclaimed: 'Privateering is, and remains, abolished.'7 Privateers were private persons (at times known as corsairs, not to be confused with pirates) who obtained official letters of marque from a government, allowing them to attack enemy merchant ships.8 As the language of the Declaration of Paris indicates, it merely confirms the abolition of privateering as 'an already established situation' under customary international law.9 The law of land (and air) warfare ultimately adjusted to proscribe parallel modes of behavior.

Combatants can withdraw from the hostilities not only by retiring and becoming civilians, but also by becoming hors de combat. This can happen either by choice (through laying down of arms and surrendering) or by force of 4. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I),,1977, reprinted in THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 621, 651 (D. Schindler & J. Toman eds., 3rd ed., 1988) (Article 51(1)) [hereinafter LAWS OF ARMED CONFLICT].

5. See ROGERS & MALHERBE, supra note 2, at 29. Cf. Article 51(3) of Protocol I, LAWS OF ARMED CONFLICT, supra note 4, at 651.

6. See ROGERS & MALHERBE, supra note 2, at 29.

7. Paris Declaration Respecting Maritime Law, 1856, LAWS OF ARMED CONFLICT, supra note 4, at 787, 788.

8. See Ulrich Scheuner, Privateerihg, 3 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 1120, 1120-1121 (R. Bernhardt ed., 1997).

9. Id. at 1122.

circumstances (by getting wounded, sick or shipwrecked). A combatant who is hors de combat and falls into the hands of the enemy is in principle entitled to the status of a prisoner of war. Being a prisoner of war means denial of liberty, i.e., detention for the duration of the hostilities (which may go on for many years). However, that detention has only one purpose: to preclude the further participation of the prisoner of war in the ongoing hostilities. The detention is not due to any criminal act committed by the prisoner of war, and he cannot be prosecuted and punished 'simply for having taken part in hostilities.'10 While his liberty is temporarily denied, the decisive point is that the life, health and dignity of a prisoner of war are guaranteed. Detailed provisions to that end are incorporated in Geneva Convention (III) of 1949.11

Lawful and Unlawful Combatants Entitlement to the status of a prisoner of war-upon being captured by the enemy-is vouchsafed to every combatant, subject to the conditio sine qua non that he is a lawful combatant. The distinction between lawful and unlawful combatants complements the fundamental distinction between combatants and civilians: the primary goal of the former is to preserve the latter.12 The jus in bello can effectively protect civilians from being objects of attack in war only if and when they can be identified by the enemy as non-combatants. Combatants 'may try to become invisible in the landscape, but not in the crowd.'13 Blurring the lines of division between combatants and civilians is bound to result in civilians suffering the consequences of being suspected as covert combatants.

Hence, under customary international law, a sanction (deprivation of the privileges of prisoners of war) is imposed on any combatant masquerading as a civilian in order to mislead the enemy and avoid detection.

An enemy civilian who does not take up arms, and does not otherwise participate actively in the hostilities, is guaranteed by the jus in bello not only his life, health and dignity (as is done with respect to prisoners of war), but even his personal liberty which cannot be deprived (through detention) without 10. ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: A STUDY IN INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 82 (1976).

11. Geneva Convention (III) Relative to the Treatment of Prisoners of War, 1949 [hereinafter GC III] reprinted in LAWS OF ARMED CONFLICT, supra note 4, at 423.

12. See Theodor Meron, Some Legal Aspects of Arab Terrorists' Claims to Privileged Combatancy, 40 NORDISK TIDSSKRIFT FOR INT'L RET 47, 62 (1970).

13. Denise Bindschedler-Robert, A Reconsideration of the Law of Armed Conflicts, THE LAW OF ARMED CONFLICTS: REPORT OF THE CONFERENCE ON CONTEMPORARY PROBLEMS OF THE LAW OF ARMED CONFLICT, 1, 43 (1971).

cause. But a person is not allowed to wear simultaneously two caps: the hat of a civilian and the helmet of a soldier. A person who engages in military raids by night, while purporting to be an innocent civilian by day, is neither a civilian nor a combatant. He is an unlawful combatant.

Upon being captured by the enemy, an unlawful combatant-like a lawful combatant (and unlike a civilian)-is subject to automatic detention. But in contradistinction to a lawful combatant, an unlawful combatant fails to enjoy the benefits of the status of a prisoner of war. Hence, although he cannot be executed without trial, he is susceptible to being prosecuted and severely punished for any acts of violence committed in the course of the hostilities in which he has participated. The legal position was summed up by the Supreme Court of the United States, in the Quirin case of 1942 (per Chief Justice Stone):

[b]y universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.14

With the exception of the last few words, this is an accurate reflection of the jus in bello.

What can unlawful combatants be prosecuted and punished for? The Quirin judgment refers to 'trial and punishment by military tribunals for acts which render their belligerency unlawful.' Admittedly, sometimes the act which turns a person into an unlawful combatant constitutes by itself an offence (under either domestic or international law) and can be prosecuted and punished as such before a military tribunal. But on other occasions the judicial proceedings may be conducted before regular courts and,, more significantly, they are likely to pertain to acts other than those that divested the person of the status of lawful combatant. Even when the act negating the status as a lawful combatant does not constitute a crime per se (under either domestic or international law), it can expose the perpetrator to ordinary penal sanctions (pursuant to the domestic legal system) for other acts committed by him that are branded as criminal. Unlawful combatants 'may be punished under the internal criminal legislation of the adversary for having committed hostile acts 14. Ex parte Quirin, 317 U.S. 1, 30-31 (1942).

in violation of its provisions (e.g., for murder), even if these acts do not constitute war...