protected persons matthew j. festa professor of law, south texas college of law associate professor,...
TRANSCRIPT
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]