Part IV: ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under Inter
This is the fourth part in a series of commentaries on the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, adopted by the Assembly of the International Committee of the Red Cross on February 26, 2009.
The subject of this week’s commentary is the second section of the ICRC’s Interpretive Guidance, the concept of civilians in non-international armed conflict. The importance of examining the international legal norm regulating NIAC are obvious when one takes a quick survey of current conflicts being fought—almost none are considered “international” by the standards of international law. Much of the current international humanitarian law (IHL) regulating non-international armed conflict is contained in Additional Protocol II (AP II) to the Geneva Conventions. AP II was a much more limited treaty than was Additional Protocol I (AP I) and is ratified by fewer countries. This is a result of (1) strong state resistance to intrusions upon their sovereignty, (2) the reluctance of states to grant rights to groups engaged in rebellion or sedition—beyond what human rights treaties may require—and (3) the difficulty of definitions in non-international armed conflict.
AP II applies to armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” (AP II art. 1). The Protocol is limited so as not to apply to “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” (AP II art. 1). Definitional questions immediately arise—how much territory has to be controlled, what level of control has to be exerted, and what percentage of the dissident armed group has to implement AP II to gain protection from the Protocol?
Another major area of contention in AP II is the definition of “civilian,” an area that the ICRC Guidance attempts to clarify and further define. The Guidance states that, “In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist of only individuals whose continuous function it is to take direct part in hostilities (‘continuous combat function’).” The Guidance notes that the terms “civilian”, “armed forces” and “organized armed groups” are used in treaty IHL governing non-international armed conflict, but those terms are largely undefined. The ICRC argues that these three terms are mutually exclusive, and that members of non-State organized armed forces should not be classified as civilians for the purposes of IHL. The ICRC argues that classifying members of organized armed groups as civilians who have lost protection from attack due to their direct participation in hostilities—for the entire duration of hostilities—undermines the “conceptual integrity of the categories of persons underlying the principles of distinction.”
Support for this third category—non-State organized armed groups—can be found in the text of common Article 3 to the four Geneva Conventions. Common Article 3 applies “in the case of armed conflict not of an international character” and applies to “each Party to a conflict.” The idea that there would be more than one Party to a conflict of a non-international character, and that protection should be afforded to “members of armed forces who have laid down their arms [or] been places hors de combat” tends to support the idea that that both States and non-State parties to non-international armed conflict can be distinct from the civilian population. (GC III art. 3). The language in AP II also supports the idea of the non-State organized armed group. The commentary to AP II Part IV (Civilian population) speaks of the “ability of the armed opposition to respect these provision.” (Commentary to AP II, § 4760).
The ICRC Interpretive Guidance suggests these three categories of actors in non-international armed conflict are defines as: (1) State armed forces, (2) “organized armed groups”—which includes “dissident armed forces and other organized armed groups” (AP II art. 1)—and (3) civilians—defined by negative delineation from the two previous groups. The first category, State armed forces, is intended to included categories that might not qualify as armed forces under a State’s domestic law—”national guard, customs, police forces or any other similar forces.” (Commentary to AP II, § 4462). Membership in the armed forces is regulated by domestic law, as are situations where police or other forces are incorporated into the armed forces. The Guidance states that membership in irregular State armed forces, “such as militia, volunteer or paramilitary groups,” are “generally not regulated by domestic law,” and membership in such groups should be determined through a functional analysis, an analysis the Guidance uses to determine membership for non-State actors.
The Guidance argues that the second category—non-State organized armed groups—are determined by a functional test. A non-State party to a conflict (“e.g., an insurgency, a rebellion, or a secessionist movement”)—the ICRC argues—should be categorized according to function—fighting forces and support forces, such as political or humanitarian “wings.” The ICRC proposes that a person loses their status as a civilian—and is assumed to be a member of a organized armed group—when that person “assumes a continuous function for the group involving his or her direct participation in hostilities.” It is that “continuous combat function” that distinguishes a member of the non-State organized armed group from civilians who merely sporadically and spontaneously participate in hostilities, or members of political or humanitarian wings of a non-State organization. A person can lose their civilian status without participating directly in hostilities, if they are recruited and trained to directly and continuously participate in hostilities. The Guidance is clear that a person who assumes a “continuous combat function” does not benefit from combatant’s privilege—the right to directly participate in hostilities without liability for lawful acts of war, which is reserved for State armed forces in international armed conflict and participants in a leveé en masse. (e.g. GC III art. 4 [A][1,2,6]).
The third category proposed by the ICRC, civilians, includes several groups of people. The most obvious are those who never participate in hostilities. The next groups would be those civilians who sporadically and spontaneously participate in hostilities, who would lose their protected status for only so long as they directly participate in hostilities. A third group of civilians would be those who accompany or support organized armed groups, but who do not directly participate in hostilities—analogous to civilian employees and private contractors accompanying State armed forces. Thus, according to the ICRC, recruiters, trainers, financiers, and propagandists employed by or working for non-State armed groups are civilians. So too are individuals who purchase, smuggle, manufacture or maintain weapons or equipment outside tactical military operations, or those who collect non-tactical intelligence. Even though they accompany organized armed groups, and provide those groups with substantial support, the ICRC argues that they “cannot be regarded as members of an organized armed group” because their lack of “continuous combat function,” though their activities or location may “increase their exposure to incidental death or injury.” The Guidance points out that all civilians, no matter what their status, continue to be liable for violations of domestic and international law.
The Guidance suggests that the principles of distinction must be applied on the basis of available information that can be regarded as reliable under the circumstances. A “continuous combat function,” and thus membership in an organized armed group, can be determined explicitly—through the wearing of a uniform or distinctive sign—or implicitly—such as repeated direct participation in hostilities in support of an organized armed group. Those individuals “whose continuous function it is to take a direct part in hostilities,” the ICRC explains, are the only “armed forces” of a non-State party to a non-international armed conflict. However, as will be explained in a later section, this bright-line functional test for membership in an organized armed group proposed by the ICRC in its Interpretive Guidance belies the fact that members of a State’s armed forces are not accorded a similar functional test, and that no such test is used in international armed conflict.
Part V of this series will explore the third section of the Interpretive Guidance—the status of private contractors and civilian employees in armed conflict.
Click here to download the full text of the IRCR commentary