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 713.646.1857mfesta@stcl.edu