Conferring Legal Status to Persons Engaged in Hostilities in Non-International Armed Conflicts
By Ethem Coban
While historically classical warfare was fought between two or more adversary states, this tradition has been subject to a switch of paradigms: non-international armed conflicts (NIACs) outnumber international armed conflicts (IACs). The War Report for 2018 counts a total of 69 NIACs, as opposed to 18 IACs. Their destructive impact – in most cases leading to a humanitarian crisis – are more omnipresent than ever as exemplified in Iraq, Sudan, Syria, and Ukraine, to name but a few. Whereas IACs are carried out between regular armed forces of states, this cannot be said for NIACs fought between governmental forces and non-governmental armed groups, or between such groups only. While pursuant to Art. 1 (4) Additional Protocol I, the scope of application of international armed conflicts extends also to “[a]rmed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination (…)”, arguably, with the end of the decolonization wave in Africa and Asia, Art. 1 (4) Additional Protocol I played a marginalized role in the law of armed conflicts.
Non-governmental armed groups, or armed non-state actors, are the new actors to the latter category of conflicts. In light of the fact that this group has become dominant during armed conflicts, such circumstance demands regulation on the legal status of these actors. However, legal status of combatants is limited to IACs only within Art. 43 (2) Additional Protocol I. Accordingly, 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.
The missing combatant terminology in Protocol Additional II to the Geneva Conventions regulating NIACs (henceforth AP II), cannot be regarded as apt and adequate at times where NIACs are the standard, rather than exception. Against this background, we must assess the need for a legal status quo of participants in hostilities during NIACs.
With the rise of armed non-state actors, the state-centric international law paradigm is challenged, as international legal mechanisms regulating armed conflicts are ratified by states only. Yet by the same token, there is consensus that armed non-state actors are bound by the rules of international humanitarian law (IHL). Thereby, the lack of legal status of armed non-state actors in NIACs does not reflect reality “on the ground.” One of the fundamental principles of IHL is the distinction between combatants and non-combatants. The purpose behind the principle of distinction is to restrict the conduct of war, particularly to protect civilians and civil objects. Unlike international human rights law, IHL lacks uniform rights and obligations. Indeed, IHL prescribes distinctive sets of rights and obligations emerging from the classification of a category conferred. The elementary rule determining a person’s status as combatant is enshrined within Art. 43 Protocol Additional I to the Geneva Conventions regulating IACs, which defines armed forces and provides that members of the armed forces are combatants. However, there is no equivalent rule in NIACs.
A solution to the problem has developed in recent years with the wave of reformulating the applicable laws in NIACs, however not implemented. The progressive idea behind this solution is that it introduces a different term defining both conflicting parties as fighters. Pursuant to the Manual on the Law of Non-International Armed Conflicts for instance, “fighters are members of armed forces and dissident armed forces or other organized armed groups, or taking an active (direct) part in hostilities”. The avant-guard approach is that “fighters include both members of the regular armed forces fighting on behalf of the government and members of armed groups fighting against the government.” This concept further takes into consideration the reluctance of states granting rebels combatant status, as “the term fighters has been employed in lieu of combatants in order to avoid any confusion with the meaning of the latter term in the context of the international law of armed conflict”. A clear distinction would spare the civilian population from the violence of “fighters,” yet at the same from the reaction of the governmental armed forces instead of wrongfully directly attacking the civilian population. Considering that the assessed solution has not been implemented yet, the solution is twofold: (i) creating the binding force of the suggested definition by (ii) introducing an amendment to AP II open to ratification.
Although states are still reluctant to expand combatant status to rebel forces based on the fear that such status would legitimize them, due to the changing nature of warfare, IHL has to produce legal mechanisms in light of this challenge. Specifically, it has to promote its application to armed non-state actors. This aim could be achieved by labeling them as fighters. Instead of politically debating whether “one man’s terrorist, is the other man’s freedom fighter,” either conflicting party to a NIAC shall legally be labeled fighter. Categorizing both conflicting parties as fighters has the potential to gradually become instrumental towards the binding force of IHL to armed non-state actors. Considering the historical development of IHL, and its reactionary ability to adopt itself to new trends, the solution presented seems feasible to close this legal gap.