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Protected Persons
Matthew J. FestaProfessor of Law, South Texas College of Law
Associate Professor, International & Operational Law,
U.S. Army Judge Advocate General’s Legal Center & School*
*Non-attribution policy: materials and ideas presented are those of the instructor and , are not to be attributed to any institution or to the U.S. Government
INTERNATIONAL HUMANITARIAN LAW
KEY ISSUE: COMBATANTS V. CIVILIANS
Protected persons: what’s at stake?
• 1. Are you a lawful target?• 2. How are you to be treated?• KEY FACTS:
–STATUS–CONDUCT
STATUS DURING
CONFLICTNON
COMBATANTS
COMBATANTS CIVILIANS
GC III, art. 4AP I, art. 43(2)
GC I, art. 28
GC IV
UNPRIVILEGEDBELLIGERENTS
US Policy
COMBATANTCOMBATANT
WHO IS A LAWFUL COMBATANT?
Hague IV (belligerents) / GC III (POW) definitions
• Armed forces of a State party to a conflict—art. 4(1)• Militia / volunteer corps / org resistance movements belonging to a State
party if (art. 4(2)): Under responsible command; Fixed, distinctive, recognizable sign; Carry arms openly; & Conduct operations IAW laws of war
AP I (art. 43(2)) (1977)• Members of the armed forces of a Party to the conflict• Under AP I, a “Party” is a State (with a limited exception that the United
States rejects)
LAWFUL COMBATANT STATUS
Right to participate directly in hostilities
Lawful targets Excludes those hors de combat / non-combatants
Combatant Immunity Legal privilege for combatants to use lethal force Except war crimes/not connected to armed conflict
Entitled to POW status if captured
NONCOMBATANT
NONCOMBATANTS
Medical / Medical Admin / Chaplains
IAC (GC I)
• Exclusively engaged• Abstain from hostile acts• Respect and Protect• Retained Personnel Not POWs
• Armlet / ID card—art. 40
NIAC (CA 3 / AP II)
• Respect and Protect• Wear emblem
Protected?
RETAINED PERSONNEL?
Al Warafi v. Obama- May 24, 2013
Al Warafi claim: GC I, art. 24 status
DC Circuit Ct denied Habeas Petition Captured during early part of Afghan war –
possibly as part of State armed force in an IAC (not decided)
Holding: GC I status requirements not applicable because “mandatory indicia” required by GC I art. 40 not met
Concurrence: Not all of GCs will apply as broadly as CA 3
UNPRIVILEGED BELLIGERENT
DPH(Direct Participation in Hostilities)
Civilians shall enjoy the protection afforded by this section/part, unless and for such time as they take a direct
part in hostilities.
AP I, art. 51(3)AP II, art. 13(3)
UNPRIVILEGED BELLIGERENTS
Targetable (DPH/CCF) Not entitled to engage in combat activities
Traditionally:• War criminals or national criminals
Not expressly recognized in GCs but arguably by AP I (arts. 44(4); 45(3)) & AP II (e.g., art. 1(1))
No combatant immunity
CIVILIANS
DEFINING CIVILIANS
GC IV (1949) – not defined
AP I (1977)
• “The civilian population comprises all persons who are civilians” –art. 50
• Civilian ≠ Combatant (defined in the neg.)
CA 3 / AP II – not defined
CIVILIANS IN MILITARY OPERATIONS
General population, including: Wounded/injured/ displaced Criminals
Rescue workers/ police/ first responders, including national Red Cross
Civilians accompanying the forces Third country nationals, including ICRC,
NGOs, security contractors, journalists, etc.
PROTECTIONS FOR CIVILIANS
< 19th Century Lieber Code (1862) Hague (1899/1907) GCs < WWII IAC
• GC IV (1949)
• AP I NIAC
• CA 3 • AP II
TREATY VS. CUSTOMARY LAW
Of 4 GCs, only GC IV expressly protects civilians (other than civilians accompanying forces)
Under GC IV, greatest protection afforded to “protected persons”
AP I expands protection to all situations in IACs United States not party to AP I but fills gaps as
customary law or by policy Less protection for civilians in NIACs generally
CA 3 applies; AP II (US not party) or CIL also fills gaps
Questions?Matthew J. Festa
South Texas College of LawDept. of Int’l and Operational Law
U.S. Army Judge Advocate General’s Legal Center and School
Phone [email protected]