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1. Combatants in Armed Conflicts

2. Distinction State’s monopoly over legitimate use of force Necessary to ensure the distinction between combatants and non-combatants Separate regime of protection for combatants and non-combatants

3. Distinction Combatants Non-Combatants

4. Status Civilian – Combatant Combatant – Civilian Combatant & Civilian Lawful and Unlawful (Unprivileged) Combatants

5. Lawful and Unlawful Combatants Lawful – subject to automatic detention Unlawful – subject to automatic detention, with no benefits of POW, can be tried for the act which transformed lawful into unlawful, application of ordinary domestic criminal law

6. Historical Evolution

7. States Views Powerful States – Restrictive Definition of combatant, advocated to restrict it to the members of regular armed forces Weaker States – Broader definition, advocated to include even civilian population who resists an enemy invasion States emerging out of decolonization – Need to protect individuals taking part in guerilla warfare

8. COMBATANTS During the preparatory work for the Diplomatic Conference in 1949, and even during the Conference itself, two schools of thought emerged.  Some delegates considered that irregular armed forces should have to fulfil even stricter conditions than the four specified in the Hague Regulations in order to benefit from the protection of the new Convention. Others considered that greater latitude should be allowed, to extend protection more widely to irregular forces. Some also expressed concern that establishing certain conditions for irregular forces might affect the protection of participants in a  levée en masse .

9. GENEVA CONVENTION Art. 4 (POW) A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces . Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a)  that of being commanded by a person responsible for his subordinates; (b)  that of having a fixed distinctive sign recognizable at a distance; (c)  that of carrying arms openly; (d)  that of conducting their operations in accordance with the laws and customs of war.

10. GENEVA CONVENTION Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

11. Combatants under AP I Article 43 (Armed Forces) 1. The armed forces of a Party to a conflict consist of organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia , shall enforce compliance with the rules of international law applicable in armed conflict. (Removal of Distinction between Regular and Irregular) 2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 3. Whenever a Party to the conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

12. MEMBERS OF REGULAR ARMED FORCES Statehood Issue – to be solved through general international law No conditions Presumptions: Rebuttable or Irrebuttable?? ICRC – Four conditions are obligations of regular armed forces but NOT collective condition for POW status. Hague Regulation – “the armed forces of the belligerent parties may consist of combatants and non-combatants and both benefit from POW status.” (GC does not make any distinction like this)

13. Combatants under the Hague Convention Subordination to responsible command Fixed distinctive emblem Carrying arms openly Conduct in accordance with LOIAC Militias and Volunteer Corps

14. ART. 4 Fallen into the hands of the enemy “Fallen into the hands of the enemy” v “Captured” - The new term was introduced to make it clear that the Third Convention protects not only ‘captured’ prisoners of war, but also those who have fallen into the power of the enemy by other means, such as surrender or mass capitulation. Detaining Power exercises some level of physical control or restraint over the person, and that the person is no longer willing or able to participate in hostilities or defend themselves. It does not include persons who merely reside or operate in a territory controlled by a belligerent Party.

15. Art. 4 enemy role of an individual’s nationality in determining their prisoner-of-war status in this inter-State regime has arisen, particularly in relation to individuals who are nationals of the Detaining Power but are serving in enemy armed forces.  One view is that any person in one of the categories enumerated in Article 4A who falls into the power of the adversary State is in the power of the enemy, regardless of their nationality. Another view is that the term ‘enemy’ excludes a situation in which a person is interned by the same State of which they have nationality . the ICRC considers that nationality should not be a factor in the determination of prisoner-of-war status for the reasons outlined below.

16. Art 4 enemy The text of Article 4 does not stipulate nationality as a factor for prisoner-of-war status, in contrast to protected person status under the Fourth Convention. The criterion should likewise not be inferred from the text of other relevant articles in the Third Convention. Articles 87 and 100 of the Convention mention nationality and reflect a presumption on the part of the drafters that in most cases prisoners of war will be nationals of the State on which they depend. Granting prisoner-of-war status to a State’s own nationals does not exclude the possibility of prosecuting such individuals for treason, meaning that there is no need to deny such status in order to punish this or similar acts.

17. Art. 4A(1) The expression ‘members of the armed forces’ includes all members of the armed forces regardless of their function or the service they provide. Matter of domestic law not international law  Whether a reservist is a member of the armed forces of a Party to the conflict also depends on domestic law. (Reservist on active duty v Those not on active duty).

18. Art. 4A (1) 4A(1) expressly includes militias or volunteer corps forming part of the armed forces. For such groups to fall within subparagraph 4A(1), they must have been formally incorporated into the armed forces prior to falling into enemy hands and must be under the responsible command of a Party to the conflict. Their incorporation depends on domestic law. Members of militias or volunteer corps that are not incorporated into the armed forces but otherwise belong to a Party to the conflict fall under subparagraph 4A(2), provided that the four conditions set out in that subparagraph are fulfilled. Paramilitary and armed law enforcement agencies may also form part of the armed forces of a State under the domestic law of that State . (Duty to notify the adversary) (Now a requirement under Art. 43(3) AP I)

19. ART. 4A(1) SPIES Obligation to distinguish combatants who engage in espionage while wearing civilian attire or the uniform of the adversary but excludes combatants who are gathering information while wearing their own uniforms . If, however, spies rejoin the armed forces to which they belong and are subsequently captured by the enemy, they must be treated as prisoners of war and incur no responsibility for their previous acts of espionage.

20. Deserters and Defectors whether members of the armed forces who desert but subsequently fall into the hands of the enemy are to be granted prisoner-of-war status. However, as a matter of domestic law, generally an act of desertion does not amount to a unilateral termination of one’s membership in a State’s armed forces. Defectors are persons from one side’s armed forces who desert their own armed forces and voluntarily join the armed forces of the opposing side. Because they have not ‘fallen into the power of the enemy’, they are not prisoners of war while serving in their new armed forces. Those who defect after capture, however, retain their prisoner-of-war status because they may in no circumstances renounce the protection of the Convention. Moreover, no prisoner of war or protected person may be compelled to serve in the forces of a hostile Power.

21. Art. 4A(2) Irregulars Collective condition What about the case in which individual is fulfilling the four requirements but not the group? What if the group fulfills but individual does not? What happens in those circumstances when individuals violate other IHL rules but the group to which he/she belongs fulfills the four requirements?

22. Individual or Group Sr. No. Conditions Individual Group Individual+Group 1. subordination Y 2. emblem Y Y Y 3. Carry arms openly Y Y✩ Y✩ 4. Conduct as per LOIAC Y Y✩ Y✩ 5. Organization Y 6. Belonging to a Party to the Conflict Y 7. Non-allegiance to the detaining power Y

23. Irregular Forces 1. Subordination Individuals acting on their own Private Wars This condition serves a protective purpose , as a structured hierarchy has the capacity to maintain internal discipline and to ensure that operations are planned, coordinated and carried out in a manner consistent with humanitarian law.  It also encourages accountability by commanders for the conduct of their subordinates.

24. 2. Emblem Distinction Fixity Requirement aims to maintain the difference between civilians and combatants Lack of intent to deceive the enemy Recognizable at a distance Night Warfare

25. Emblem Emblem THROUGHOUT the military mission (Start to Finish) Must not be deliberately removed obligation to wear a distinctive sign does not extend, for example, to times in which members of the group attend to personal hygiene, sleep or take part in physical training Off duty, discharging duties not linked to military mission, operating from a location far from the front line.

26. 3. Carry Arms Openly

27. 4. Conduct as per LOIAC If not following then can not take benefit of the law Mere issue of instruction to follow IHL should be sufficient No strict requirement (strict interpretation may bring the condition of reciprocity)

28. 5. Organization hierarchic framework, embedded in discipline, and subject to supervision by upper echelons of what is being done by subordinate units in the field

29. 6. Belonging to a Party to the Conflict Requirement of control Requires an analysis of the motivation or intention of the armed group and the reaction of the state concerned – Express or Tacit Agreement (4B also mention Belonging and there the requirement is only de facto relationship as per the commentary) De facto relation – support or allegiance is sufficient For a group to belong to a Party to a conflict for the purpose of Article 4A(2), two things are required. First, the group must in fact fight on behalf of that Party. Second, that Party must accept both the fighting role of the group and the fact that the fighting is done on its behalf

30. 6. Belonging to a Party to the conflict Israeli Military Court in the Kassem case Persons, who belonged to an organization calling itself the ‘Popular Front for the Liberation of Palestine’ Crossed Jordan river from East Bank to West bank Not a combatant under 4(1) because they are members of armed forces of Jordan Not a combatant under 4(3) because the front is neither a state and does not bear allegiance to the regime existed in the west bank before occupation Not even under 4(6) because the area in which they have been captured has been occupied by Israel for more than a year The Israeli Military Court held that irregular forces must belong to a Party to the conflict. Since no Arab Government at war with Israel had assumed responsibility for the activities of the Popular Front – which was indeed illegal in the Kingdom of Jordan – the condition was not fulfilled. Hence the law relating to combatants does not apply to independent guerrillas even if they fulfill all the requirements.

31. 7. non-allegiance to the Detaining Power Privy Council in the Koi case captured Indonesian paratroopers – landing in Malaysia – included a number of Malays convicted and sentenced to death for having unlawfully possessed arms in a security zone. In case of doubt – Individuals are to get all protection of GCs, unless determined by competent tribunal. Burden of Proof – Prosecution or Defendant Defendant – Member of Armed Forces – Prosecution – Allegiance to detaining Power

32. ART. 4A(3) Article 4A(3) covers armed forces that continue operations under the orders of a government in exile that is not recognized by the adversary but has been given hospitality by another State. It also applies to situations of occupation, where the Occupying Power has recognized a different government in the part of the territory it occupies, or where the armed forces hold allegiance to a government that has ceased to exist. It can also apply where a State exists but where the government in power may not be recognized as the legitimate government of the territory by other States that are party to the conflict.

33. Art. 4A(4) Civilian POW These civilians are the only two categories of persons who are entitled to prisoner-of-war status but not entitled to combatant status, immunity or privileges. Their inclusion recognizes that their proximity to the armed forces increases the risk of their being interned with combatants, and makes explicit the protective framework that applies to them. provides a non-exhaustive list of examples of such persons and their activities. Today, in addition to services such as laundry, transportation, food and waste removal, contractors are used by some armed forces, for example for the development, maintenance and operation of technologically advanced equipment or vehicles.

34. ART. 4A(5) The ICRC is of the view that persons entitled to prisoner-of-war status on the basis of Article 4A(5) are only those members of the crew whose professional activities are directly linked to the military activities of the armed forces. This includes all members of the crew involved in operating the vessel or aircraft.

35. Art. 4A(6) Levee en Masse recognition of prisoner-of-war status for people who take up arms within a narrow window of time, namely during the actual invasion period. Civilians who spontaneously take up arms after the enemy has established itself cannot qualify as prisoners of war A  levée en masse  can occur in any part of a territory that is not yet occupied, or in an area where the previous Occupying Power has lost control over the administration of the territory and is attempting to regain it.

36. Art. 4(B)(1) Armed Forces of an Occupied Territory Article 4B(1) applies to anyone ‘belonging, or having belonged, to the armed forces of the occupied territory’. Only the Power on which the prisoners belong, and not the Occupying Power, has the authority to decide whether a person no longer belongs to its forces. The clarification that the provision applies to those ‘having belonged’ to such armed forces is important since they would not qualify for protection under Article 4A. Yet the provision also applies to persons still belonging to the armed forces of the occupied country: provided hostilities continue outside the territory occupied by the enemy Power, such persons will not be covered by Article 4A but exclusively by Article 4B(1).

37. Art. 4(B)(2) Internment by Neutral Powers Such persons are not entitled to prisoner-of-war status. The neutral Power, however, must accord them the treatment due to prisoners of war provided for in the Convention. While the neutral Power may decide to grant them better treatment than is required by the Third Convention, it does not need to comply with a number of its provisions . This subparagraph only applies when the neutral Power has an obligation, as a matter of international law, to intern them.

38. Legal position under AP I Victims v Aggressor Historically, nations that view themselves as likely victims of aggression and enemy occupation have argued that guerrillas, partisans and members of resistance movements should be regarded as patriots and privileged combatants, while major military powers have argued that only regular, uniformed and disciplined combatants who distinguish themselves clearly from the civilian population should have the right to participate directly in hostilities. “[t]he history of rules concerning the qualifications of combatant status and entitlement to be a prisoner of war has been a controversial subject at all lawmaking conferences, and has always resulted in compromise.” The compromise, reflected in Articles 43 to 47 of Protocol I, was essentially “[to] relax the rigid requirements of the Hague and Geneva Standards sufficiently to provide guerrillas a possibility of attaining privileged combatant status without exposing the forces fighting them to the danger inherent in the use of civilian disguise in order to achieve surprise.”

39. LEGAL POSITION UNDER AP I Article 43 1. The armed forces of a Party to a conflict consist of organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia , shall enforce compliance with the rules of international law applicable in armed conflict. (Removal of Distinction between Regular and Irregular) 2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 3. Whenever a Party to the conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict. ( Incorporation of Police Forces into Armed Forces )

40. COMBATNTS Quasi-combatants – Those members accompanying armed forces but not specifically to use arms. Combatant Status on Demand – AP I allows flexibility. A person may wear purely civilian dress if the nature of war requires it. But the same person can not become combatant when he is in action and civilian at a later time.

41. Legal Position under AP I Article 44 1. Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war. 2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or , if he falls into the power of an adverse Party, of his right to be a prisoner of war , except as provided in paragraphs 3 and 4. 3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly : during each military engagement, and during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate. Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1(c).

42. Legal Position under AP I 4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless , be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. The protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.

43. LEGAL POSITION UNDER AP I 5. Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities. 6. This article is without prejudice to the right of any person to be a prisoner of war pursuant to Article 4 of the Third Convention. 7. This article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict. 8. In addition to the categories of persons mentioned in Article 13 of the First and Second Conventions, all members of the armed forces of a Party to the conflict, as defined in Article 43 of this Protocol, shall be entitled to protection under those Conventions if they are wounded or sick or, in the case of the Second Convention, shipwrecked at sea or in other waters.

44. Article 44 Aimed to deal with combatants using guerrilla warfare Compromise in the form of Art. 44 serves twin purpose:

45. Art. 44(1) Need to fulfill the requirements of art. 43 Difference in structure of regular forces and guerillas If full respect for IHL is asked – expect equality where inequality exists

46. Art. 44(2) Compliance with the Rules of Intl. Law applicable in Armed Conflict Violation of laws – deprivation of combatant status Hague regulation – required proof of compliance with intl. law GC III – 4A(2) follows Hague Regulation in case of members of resistance movements There is a change in Art. 44 and it does not distinguish between Regular Uniformed Soldiers and Guerrilla Fighters Art. 44 does not restrict punishment for breach

47. Art. 44(3) distinction between civilians and combatants Combatants obligation to distinguish themselves from civilians Chief concern of 44(3) – Regular Armed Forces (without requirement they wear dress) or Guerrilla Fighters Scope of Application – Armed Combatants only or Anyone who may participate indirectly into military operation

48. Art. 44(3) Exception to Fundamental Obligation to Distinguish Exception in situations of – Wars of National Liberation, Occupied Territory The determining factor is ‘nature of hostilities.’

49. Art. 44(3) Duty to Carry Arms Openly 2 situations During each military engagement During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate. Purpose is to protect civilians. Each military engagement involves both offensive and defensive actions. Deployment means offensive action. Twin interpretation Any movement towards a place from where attack is to be launched. Final movement before firing position. Visible to the adversary (only through naked or even through electronic means)

50. Art. 44(3) Perfidious acts

51. Art. 44(4) situation in case of violation of 44(3) They are no POW but they will benefit from the substantive and procedural protection accorded in GC III and AP I. Possibility of criminal prosecution Without this recognition in Art. 44 he can be punished for perfidy. Entitled to guarantees under Art. 82-108 of GC III.

52. Art. 44(5) POW status if captured while not engaged in an attack or military operation preparatory to an attack.

53. Legal Position under AP I presumption Article 45(l) establishes a presumption that a person who participates in hostilities is entitled upon capture to prisoner of war status if he claims that status, appears entitled thereto, or his Party claims it for him. The second paragraph of that Article provides that anyone who is held not as a prisoner of war and is to be tried for an offence connected with the hostilities can assert a right to prisoner of war status before a judicial tribunal and have that issue adjudicated. Shift in Burden of Proof from Detained to Detaining Power

54. Mercenaries Article 47 AP I 1. A mercenary shall not have the right to be a combatant or a prisoner of war. 2. A mercenary is any person who: (a)  is specially recruited locally or abroad in order to fight in an armed conflict; (b)  does, in fact, take a direct part in the hostilities; (c)  is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d)  is neither a national of a Party to a conflict nor a resident of a territory controlled by a Party to the conflict; (e)  is not a member of the armed forces of a Party to the conflict; and (f)  has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

55. Mercenaries Mercenaries acting on ideological grounds without greed for money – Combatants?? Foreign nationals serving in standing units integrated in the armed forces – Combatants?? Foreign advisers – Combatants?? National of the country a mercenary serves + Induced by money – Combatants??

56. International Convention against the Recruitment,  Use, Financing and Training of Mercenaries General Assembly resolution 44/34 Article 1 sets out the definition of a mercenary, who may be of either of two types. The first is any person who: (a) Is specially recruited locally or abroad in order to fight in an armed conflict; (b) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party; (c) Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; (d) Is not a member of the armed forces of a party to the conflict; and (e) Has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces.

57. International Convention against the Recruitment,  Use, Financing and Training of Mercenaries General Assembly resolution 44/34 Article 1. 2. extends that definition to include a person who: (a) Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at: ( i ) Overthrowing a Government or otherwise undermining the constitutional order of a State; or (ii) Undermining the territorial integrity of a State; (b) Is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation; (c) Is neither a national nor a resident of the State against which such an act is directed; (d) Has not been sent by a State on official duty; and (e) Is not a member of the armed forces of the State on whose territory the act is undertaken.

58. PMSC “PMSCs” are private business entities that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel.

59. PMSC Debates around private military companies fall within wider debates about the privatization of government functions. (Neoliberalism in context) Governments repeatedly assert that PMSC employees are ‘‘civilian contractors’’, implying that they do not perceive these individuals as combatants. A minority of the international community treats all PMCs as bands of criminal mercenaries, yet employees of some PMSCs are attempting to benefit from combatant status to protect themselves against civil lawsuits brought in the United States for their role in torturing prisoners in Abu Ghraib prison. Many authors consider and reject the possibility that individuals employed by private military companies are mercenaries, but fail to elucidate what their status is if they are not mercenaries. A large number of companies operating in an industry worth US$100 billion.

60. PMSC The increasing use of PMCs raises three fundamental questions. First, can they be combatants and therefore use force and be targeted?   Secondly, are they entitled to POW status? Thirdly, even if considered civilians, can they be targeted?

61. PMSC Are private military companies’ employees combatants for the purposes of international humanitarian law? There are three reasons why it is essential to know whether PMC employees are combatants: first, that opposing forces know whether they are legitimate military objectives and can be lawfully attacked; second, in order to know whether PMC employees may lawfully participate directly in hostilities ; Third, to know whether PMC employees who participate in hostilities may be prosecuted for doing so.

62. PMSC The definition of combatant requires to assess whether private military company employees are incorporated within the armed forces of a party to a conflict, as defined in Article 43.1 of Protocol I or Article 4A(1) of the Third Geneva Convention. It is conceivable that in rare cases they might be. Indeed, if all of them were so incorporated, that would solve all regulation issues and pose no problems for their categorization under international humanitarian law.   However, the purpose of privatization is precisely the opposite – to devolve on the private sector what was previously the preserve of government authorities .

63. PMSC The second means for a group to qualify for combatant (or prisoner-of-war) status under the Geneva Conventions is to meet the requirements laid down in Article 4A(2) of the Third Convention, which stipulates that the following also are entitled to prisoner-of-war status. many of them lack uniforms and are not likely to be subject to a responsible command. Furthermore, it is argued that two other requirements of Article 4A(2) scuttle the chances of PMSCs being considered militia forces, namely independence from the armed forces yet belonging to a party to the conflict. One must conclude that there is only a very limited basis in law for some PMSCs to be classified as combatants under international humanitarian law.

64. PMSC Since every person must be either a combatant or a civilian, according to the logic of international humanitarian law, if PMC employees are not combatants, they are civilians.

65. Civilians… A regulatory scheme that would simply prohibit private military company employees from participating directly in hostilities would be insufficient owing to several features of international humanitarian law itself. First, the concept of what constitutes direct participation in hostilities is fluid and relatively undefined. ( distinction between direct participation in hostilities and participation in the war effort ) Second, the fact that there is no distinction under international humanitarian law between fighting to attack and fighting to defend means that it is meaningless to stipulate that such employees may only defend. ( Article 49.1 of Protocol I states, Attacks means acts of violence against the adversary, whether in offence or in defence. ) Finally, even a regulatory scheme permitting PMSC employees only to defend civilian objects comes up against the fact that the concept of what is a military objective is not static under humanitarian law . Almost any object can become a military objective under certain circumstances, potentially changing the role of the person guarding that object if he or she fights off attackers.

66. PMSC Determination on case to case basis Duty on the part of the Home state, contracting state, territorial state, and all other states

67. Montreux Document The Montreux Document, which was finalized on 17 September 2008, is the result of a joint initiative launched in 2006 by Switzerland and the International Committee of the Red Cross (ICRC). The Montreux Document reaffirms the existing obligations of states under international law relating to private military and security companies (PMSCs) operating in armed conflict, and lists good practices designed to help states take national measures to implement these obligations. Six years after its adoption, Montreux Document participants have now established the " Montreux Document Forum" to continue working on the implementation of the Montreux Document and to share good practices and discuss challenges regarding the regulation of PMSCs. The Document is now supported by 53 States and three international organizations: the EU, the OSCE and NATO.

68. Montreux Document The personnel of PMSCs: a) are obliged, regardless of their status, to comply with applicable international humanitarian law; b) are protected as civilians under international humanitarian law, unless they are incorporated into the regular armed forces of a State or are members of organized armed forces, groups or units under a command responsible to the State; or otherwise lose their protection as determined by international humanitarian law; c) are entitled to prisoner-of-war status in international armed conflict if they are persons accompanying the armed forces meeting the requirements of article 4A(4) of the Third Geneva Convention; d) to the extent they exercise governmental authority, have to comply with the State’s obligations under international human rights law; e) are subject to prosecution if they commit act recognized as crimes under applicable national or international law.

69. Guantanamo Bay detainees On 11 January 2002, the first group of twenty persons captured in Afghanistan arrived at the US Camp X Ray in Guantanamo Bay, Cuba. On that day, US Secretary for Defence Donald Rumsfeld announced that detainees in Guantanamo would be held as 'unlawful combatants' and not as prisoners of war . A week later, a further group of detainees arrived and their number grew beyond 600. They included persons not captured on the battlefield such as six Algerians abducted in Bosnia and Herzegovina and later transferred to Guantanamo Bay under US custody, for allegedly having links with Al Qaida.

70. Status of the detainees Parties to the Geneva Convention On 7 February 2002, George Bush determined the status of the detainees. The White House Press Secretary announced that: The United States is treating and will continue to treat all of the individuals detained at Guantanamo humanely, and to the extent appropriate and consistent with military necessity in a manner consistent with the principles of the Third Geneva Convention of 1949. The Geneva Convention applies to Taliban detainees , but not Al Qaida detainees . Being a 'foreign terrorist group', Al Qaida is not a state party to the Geneva Convention. As such, its members are not entitled to POW (prisoner of war) status. Although the Taliban was never recognized by the US to be the legitimate Afghan government , Afghanistan is a party to the Convention, and George Bush determined that the Taliban are covered by the Convention. (As per 4A(3) recognition is not relevant for POW status.) But under the terms of the Geneva Convention the Taliban detainees do not qualify as POWs . Therefore, neither the Taliban nor Al Qaida detainees are entitled to POW status.

71. Unlawful combatants The US government refused to comply with the provisions of the GC III and made a blanket determination that all persons held at Guantanamo Bay were 'unlawful combatants' not entitled to POW status and protection under the Geneva Convention (GC).

72. POW status denial to Taliban Despite the US acknowledgment that the Taliban were a party to the conflict , POW status was denied to those captured. This denial was based on their failure to meet the competency requirements, which are: 1. Being commanded by a person responsible for his subordinates; 2. Having a fixed distinctive sign recognizable at a distance; 3. Carrying arms openly; 4. Conducting their operations in accordance with the laws and customs of war.

73. POW status denial to Taliban US Secretary of Defence Donald Rumsfeld stated that: ... the Taliban ... did not wear uniform, they did not have insignia, they did not carry their weapons openly and they were tied tightly at the waist to Al Qaida ... they would not rise to the standard of a prisoner of war. (US Department of Defense, 'News Transcript: Secretary Rumsfeld Media Availability en Route to Camp X-Ray' (US Department of Defense, 27 January 2002)

74. Art 4A(2) conditions apply only to ‘irregulars’ Art 4A(2) conditions apply only to 'irregulars', but not to the armed forces of a party to the conflict. The establishment of armed forces is part of the exercise of sovereignty. Such armed forces are presumed to meet the competency conditions and , therefore, a State Party to the conflict should not be able to deny the armed forces of another party the protection of POW status.

75. Al-Qaida members as POWs There is a view that the legal status of Al Qaida members as POWs is more difficult to establish. This is mainly due to the lack of certainty on the type of links existing between Al Qaida and the Taliban . If Al Qaida members formed part of the armed forces of the Taliban, a party to the conflict, they would be entitled to POW status in accordance with Art 4A(1) of GC III. Al-Qaida was so integrated into the Taliban that it was unclear which was controlling the other . The September 11 attacks, and by holding the Taliban responsible for the actions of Al Qaida , gave credence to the theory that they were, or were perceived to be, intertwined. During the conflict in Afghanistan, the Taliban and Al Qaida were so integrated that they could be treated as one and the same.

76. Al Qaida soldiers as members of militias and volunteer corps The consequence of that equation would be treating Al Qaida soldiers as members of militias and volunteer corps, forming part of armed forces of a party to the conflict and granting them POW status. It needs to be underlined that it is not international law that determines what kind of forces constitute a regular army, but national law . Every state has a right to determine the structure or composition of its armed forces. They may even consist entirely of militias or volunteer corps.

77. Status of Al Qaida soldiers The US administration refused to grant POW status to Al Qaida members. It argued that Al Qaida soldiers could only be entitled to POW status within the scope of Art 4A(2), provided that they fulfil competency requirements . The US Secretary of Defence summarised the position of Al Qaida members as follows: The Al Qaida is not a country. They did not behave as an army. They did not wear uniforms. They did not have insignia. They did not carry their weapons openly. They are a terrorist network. It would be a total misunderstanding of the Geneva Convention if one considers Al Qaida, a terrorist network, to be an army.

78. If the status of a person is uncertain If it is not clear whether or not he or she fulfils the conditions of a combatant, he or she shall be provisionally granted POW status unless, and until, a competent court of the detaining power has decided whether he or she is entitled to such a status. Thus, Article 5(2) of Geneva Convention III reads: Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal .

79. The US position on status determination Richard Boucher, a spokesman of the US Department of State, stated:  ... the Geneva Convention says that if there is any doubt, then a competent tribunal should be convened to review these things. We don't think there is any doubt in this situation. The White House, in their announcements…, I think, made quite clear why there is no doubt about Taliban people involved. All of these people have been screened several times before they were taken, and after they were taken to Guantanamo, and we don't think there is any doubt in these cases ... I think ... if there is any factual or reasonable basis for doubt, then of course we would be willing to review this. But at this point, we're not aware of anything in all these interviews that raises any doubt about these people ... There was nothing in that examination of the facts of the situation that raises any doubts that would lead us to believe that they might qualify, and therefore we believe firmly that they don't. Now, should something come up that would change that, I'm sure we would review it.

80. presumption in favour of POW status Additional Protocol I reinforces that presumption in favour of POW status in Article 45(1): A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.

81. Presumption of regular combatant status The presumption of regular combatant status in case of doubt is logical. If belligerents were entitled to avoid the protection given to those afforded such a status when cases of doubt arose, the intentions of the Convention could be frustrated. A number of captives who are, in reality, entitled to POW status could be deprived of the protections under the Convention, leaving room for manipulation . For example, if POW status could be denied pending a decision by a competent court, some regular combatants would not benefit from the guarantees found in the Convention, thus opening a gap in protection and providing an incentive for belligerents to slow down judicial proceedings. Some states tend to argue that in a particular case there is no true ‘doubt’ and thus deprive a captive of POW status. If such an argument was used liberally, the presumption of Article 5(2) would be rendered futile. That is why Additional Protocol I attempts to link the presumption to the claim of the captured person or the claim of his or her power of origin. If a person states that he or she is a regular combatant, POW status should be provisionally granted to him or her, unless and until a competent court, in accordance with due process of law, has decided that he or she is not entitled to such a status.

82. Applicability of the Fourth Geneva Convention In accordance with Art 4 of GC IV, persons protected by the Convention are those who, at a given moment, and in any manner whatsoever, find themselves in the hands of a party to a conflict, or occupying power of which they are not nationals.

83. Applicability of the Fourth Geneva Convention All persons held in Guantanamo Bay must be either combatants (POWs when in enemy hands) or civilians. Such a statement is emphasised in the ICRC Commentary to Art 4 of GC IV, which reads: Every person in enemy hands must have some status under international law : he is either a prisoner of war and, as such, covered by the Third Geneva Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that that is a satisfactory solution - not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.

84. Applicability of the Fourth Geneva Convention This position was confirmed by the International Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v Delalic & Delic ( Judgement ) ICTY-96-21 -T (16 November 1998), in which the Tribunal stated:   'It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war (or the First or Second Convention) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied'

85. Timing of the Obligation Planning and Preparation Updation of domestic legislation Detaining power to instruct duties to their armed forces Dissemination of text of GCs in peace and in war

86. On taking POWs On detaining the whole GC III applies GC III considers different stages of captivity Beginning of Captivity – questioning of prisoners, property of prisoners, evacuation of prisoners from combat zone, Transferring of POWs within camps During Captivity – transfer only if the receiving power is party to GC III End of Captivity – unilateral and non-reciprocal obligation on detaining power to release and repatriate without delay on closure of the hostilities

87. Fundamental Principle for Protection of POW

88. Protection of POW Prohibition of physical mutilation, medical or scientific experiments, acts of violence, intimidation, insults, and public curiosity. Humane treatment and its relation with prisoner's person and honour Physical as well as moral integrity like religious, political, intellectual, social convictions, their gender and sexual orientation Prohibition of adverse distinction based on race, nationality, religious belief, political opinions, or any other distinction founded on similar criteria. The treatment provided must take into account – health, age, professional qualifications, rank, and sex.

89. Protection to POW Internment of POWs – No prison or close confinement – Purpose is not punishment rather it is to ensure that he no longer takes direct part into the hostilities. Quarters Food – Quantity, Quality, and Variety Clothing – sufficient clothing as per weather Medical Care and Sanitation Recreation and Religion Relations with exterior Use of POWs labour ICRC visits

90. Punishment to POWs Can not be punished for taking DPH. Can be punished under the domestic legislation of detaining power, provided the same legislation applies to their own armed forces. Unsuccessful escapes can be punished. Prosecution for war crimes.

91. Principle of Assimilation POWs are to be treated in the same or similar manner as members of detaining powers own forces. It helps to ensure non-discrimination.

92. DPH It is one of the example of compromise between military necessities and demands of humanity.

93. DPH According to the commentary to Article 51(3), “‘direct’ participation means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.” It distinguishes “direct participation in hostilities” from “participation in the war effort,” explaining that, “The latter is often required from the population as a whole to various degrees. Without such a distinction the efforts made to reaffirm and develop international humanitarian law could become meaningless. In fact, in modern conflicts, many activities of the nation contribute to the conduct of hostilities, directly or indirectly; even the morale of the population plays a role in this context.” Hostilities are “acts of war which are intended by their nature and purpose to hit specifically the personnel and material of the armed forces of the adverse Party.”

94. DPH The commentary, therefore, points to two factors which help differentiate direct participation from other acts civilians engage in during an armed conflict. First, an act that negatively impacts the enemy’s military effort, or in which harm was intended, usually qualifies. Second, a relatively direct nexus between that action and the resulting harm should exist; in other words, direct participation must be distinguishable from indirect participation.

95. Requirement The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack ( threshold of harm ), and there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part ( direct causation ), and the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another ( belligerent nexus ).

96. Threshold of Harm Acts Harmful to the Enemy Harmful – Broader Interpretation – not only the directly inflicted harm but also attempts at deliberately hindering his military operation. ICRC – Harmful Acts – Acts the purpose or effect of which is to harm the adverse party, by facilitating or impeding military operations IHL definitions of conduct of hostilities is expressed in terms of attacks, for example, prohibitions on indiscriminate attacks, limitation of attacks to military objectives, principle of proportionality etc. For DPH the act need not rise to the level of attacks. Attacks – acts of violence against the adversary, whether in offense or defence No need of violence for DPH.

97. Acts Harmful to the Enemy Examples – armed or unarmed activities restricting or disturbing deployments, logistics and communications, capturing or otherwise establishing or exercising control over military personnel, objects and territory to the detriment of adversary, wiretapping the adversary’s high command or transmitting tactical targeting information for an attack. Military Objective – 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.

98. Acts Harmful to the Enemy Threshold of harm requirement is problematic because there are several efforts which does not cause any harm but enhances the capacity of the forces. For example, repairing of a battle-damaged runway at a forward airfield.

99. Harm to Civilians and Civilian Objects Important aspect here is whether the action is in some way connected to the armed conflict.

100. Harm to Civilians and Civilian Objects Killing or injuring civilian or damaging protected property without any military impact will fall with in the meaning of DPH but not other acts like taking of hostages. Better standard would be one which includes any harmful acts directed against protected persons or objects when said acts are either part of armed conflict’s war strategy (deportation of civilians) or when there is an evident relationship with ongoing hostilities (taking of hostages).

101. Likelihood The harm caused need merely be likely and not actual. It clarifies that combatant need not to wait to react to DPH until the harm materializes. Example, civilian shooting at a combatant, but missing.

102. Direct Causation there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part. The analysis restricts itself only to harm but not to any benefit. It also requires that the harm must be caused in a single casual step. It also requires that harm must result from a physical act.

103. Direct v. Indirect Causation Causation depends on nature of relationship between the act in question and a particular effect.

104. Belligerent Nexus the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another. It requires that the act in question must in some direct way tied to the armed conflict. Civilians impressed into fighting or children under 15 can be treated as DPH even though their participation is, as a matter of fact and law, involuntary. (The question is not whether the participants wanted to harm the enemy, but instead whether their actions were of a nature to do so).