Battlefield Status

1. Battlefield Status

2. Intro / Review Respect and Protect Tradition • The law of Geneva serves to provide protection for all those who, as a consequence of an armed conflict, have fallen into the hands of the adversary. The protection envisaged is, hence, not protection against the violence of war itself, but against the arbitrary power which one party acquires in the course of an armed conflict over persons belonging to the other party. ~ Fritz Kalshoven & LiesbethZegveld, Constraints on the Waging of War

3. Intro / Review Respect and Protect Tradition • ‘Respect’ and ‘protection’ are complementary notions. ‘Respect’, a passive element, indicates an obligation not to harm, not to expose to suffering and not to kill a protected person; ‘protection’, as the active element, signifies a duty to ward off dangers and prevent harm. The third element involved in the principle, that of ‘humane’ treatment, relates to the attitude which should govern all aspects of the treatment of protected persons; this attitude should aim to ensure to these persons an existence worthy of human beings, in spite of ---and with full recognition of ---the harsh circumstances of their present situation. ~ Fritz Kalshoven & LiesbethZegveld, Constraints on the Waging of War

4. Prisoners of War and Protected Persons Geneva Status

5. GC IV & Protected Person Status GC IV Commentary • “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 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.” ~4 Pictet, Commentary, at 51.

6. Why should we care? • [Who merits status as a combatant] is a question of enormous importance; anyone whose status as a member of the armed forces is recognized, is entitled to be treated as a prisoner of war in the event that he is captured; anyone who takes up arms without being able to claim this status will be left to be dealt with by the enemy and its military tribunals in the event that he is captured. ~ AP I Commentary on Art 43

7. The Problem • “The determination of the requirements to be established for those claiming POW status has not been easy, and it has been equally troublesome to assess the basis on which persons not so qualifying should be penalized or punished—whether as war criminals, or as violators of the laws and customs of war, or merely as persons whose acts have been harmful to the opposing belligerent.” • “It is probably safe to say that the Conventions are at their weakest in delineating the various categories of persons who benefit from the protection of each.” ~ Richard Baxter, Spies, Guerrillas, and Saboteurs

8. Who is a Combatant / POW? Hague Convention The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war. In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination “army.” ~ Hague IV, Article 1 (1907)

9. Who is a Combatant / POW? Third Geneva Convention 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: (1) 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. (2) 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, fulfill 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. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. ~GPW Art 4

10. Who is a Combatant / POW? Third Geneva Convention • (4) 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. • (5) 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. ~GPW Art 4

11. Who is a Combatant / POW? Civilian = Everyone Else 1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 (A) (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian. ~ AP I, Art 50(1)

12. Who is a Combatant / POW? Doubt and Article 5 Tribunals “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.”

13. GC IV & Protected Person Status In re Quirin • “Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. . . . [they are] generally deemed not to be entitled to the status of POWs, but to be offenders against the law of war subject to trial and punishment by military tribunals.” • “Unlawful belligerency is the gravamen of the offense.”

14. Who is a Combatant / POW? Conclusion • “As the current tendency of the law of war appears to be to extend the protection of POW status to an ever-increasing group, it is possible to envisage a day when the law will be so retailored as to place all belligerents, no matter how garbed, in a protected status.” ~ Richard Baxter, Spies, Guerrillas, and Saboteurs (1951)

15. GC I Covers: Wounded and Sick Applies to: • Members of Armed Forces • Militias + Organized groups meeting 4 factor Hague test. • Persons who Accompany Forces • Crews • Levee En Masse

16. GC I • Not willfully left w/o medical • Equal priority of treatment unless urgent medical reasons (triage) • If Alive: Report ID, forward stuff • If Dead: Report ID and Details Full-time medical are protected persons

17. Protected Person Status

18. ARMED CONFLICT? YESNO International Internal Not a LOW Issue CA2;* CA3 GC, Part II (general pop.) PROTECTED PERSON? ** YES NO Part III GC, Part II Only Section I TYPE OF TERRITORY? Conflict Occupied Part III, Section II Part III, Section III Interned Interned Part III, Section IV Part III, Section IV GCIV (GC) Geneva Convention Relative to the Protection of Civilian Persons in Time of War * The ICJ held CA3 applies serves as “minimum yardstick” in all conflicts; the ICTY extended CA3 to “any armed conflict”. The U.S. Supreme Court concluded CA3 applies to conflicts “not of an international character” (between two high contracting parties). Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2796 (U.S. 2006). DoDD 2310.01E (5 SEP 06) states that all DoD detainees shall be treated “humanely.” ** Per GC, Art. 4, “protected persons” are those who find themselves, in a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals. These do not include those who are: (1) Nationals of a State not bound by GCs; (2) Nationals of a neutral state finding themselves in belligerent state (non-occupied state) if the State of which they are nationals has normal diplomatic relations with the belligerent State in which they find themselves; consequently, nationals of a neutral state become protected persons in an occupied state; (3) Nationals of co-belligerent (ally) State while State of which they are nationals has normal diplomatic representation in the State whose hands they are; consequently, the whole population of an occupied territory are protected persons except nationals of occupying power; (4) Persons protected by other GCs (i.e, lawful combatants, contractors accompanying the force (see GPW, Art. 4).

19. GC IV & Protected Person Status GC IV Issues • What are the purposes of GC IV? • Are “unlawful combatants” protected persons under GC IV? • What law applies to unlawful combatants if GC IV does not? • I.e., what constitutes the minimum floor of protection they are owed?

20. GC IV & Protected Person Status OLC Memo • GC IV Interpretive Issues • “Object and purpose” of GC IV • The meaning of “find themselves” • Benefit-burdens principle • Conclusions • GC IV governs the US occupation of Iraq • Operatives of the al Qaeda terrorist organization who are not Iraqi nationals or permanent residents of Iraq are not protected persons

21. MCA of 2009

22. Detention and Internment Concluding Observations • Geneva Law • Protects all persons on the battlefield in the hands of the enemy • Nature of protection: 1) Respect, 2) Protect, 3) Humane treatment • Geneva Analysis: 1) Right type of conflict?; 2) Right type of person? • POW Status in the Law of War • Who merits POW status connected to who is a privileged combatant • Four traditional criteria PLUS must be a nexus to a party to the conflict • AP I waters down distinction criteria to incentivize guerilla compliance with the law of war; AP I combatant criteria is NOT CIL

23. Backup Slides

24. GC IV & Protected Person Status Application of GC IV“Right Type of Person” Analysis • Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. ~ Article 4

25. GC IV & Protected Person Status Application of GC IV“Right Type of Person” Analysis • Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. • The provisions of Part II are, however, wider in application • Persons protected by [the other three Geneva Conventions] shall not be considered as protected persons within the meaning of the present Convention. ~ Art 4 (con)

26. GC IV & Protected Person Status Application of GC IV“Right Type of Person” Analysis • Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. ~ Art 5

27. GC IV & Protected Person Status Application of GC IV“Right Type of Person” Analysis • Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention. ~ Art 5

28. GC IV & Protected Person Status So-Called Unprivileged BelligerencyConclusion • “A denial that unprivileged belligerency is a violation of international law does not, it must be emphasized, leave the opposing state powerless. Guerilla warfare may still be met with open warfare and saboteurs and spies captured within the lines may still be penalized, but not for any violation of international law.” ~ Baxter