Unlawful/Unprivileged Combatant, Armed Conflict and International Law in the 21St Century: Slipping Through the Loopholes of the Geneva Conventions?

Faculty of Law Ghent University

Academic Year 2009-2010

Unlawful/unprivileged combatant, armed conflict and international law in the 21st century: Slipping through the loopholes of the Geneva Conventions?

A thesis submitted in fulfilment of the requirements for the degree of Master of Law by Kenny Lannoy (20053693) (Major National & International Public Law and Environmental Law)

Supervisor: Prof. Dr. Frank Maes Commissioner: Ms. Nicole de Moor

Acknowledgements

This thesis would not have been possible without the help of a few people. Therefore I would like to thank those people who supported me in writing this dissertation.

In the first place, my gratitude goes to my supervisor, Prof. Dr. Frank Maes, for giving me the opportunity to write about this subject. Furthermore, I would like to thank Mr. Piet Willems for his guidance and other advice during the first year of this undertaking. In the second year, this task was taken over by Ms. Nicole de Moor. By reading my drafts, she provided me with linguistic, substantive and structural advice. It has to be said she did this with dedication. In addition, I would also like to express my gratitude to Mrs. Frits Devinck. She mainly focused on the grammatical correctness of the used language. Nonetheless, as a layman in the field of international humanitarian law, she also gave advice about the logical composition of this thesis. In the last place, I am grateful to my parents, brother and friends who supported me during the progress of this thesis.

Table of contents Table of contents ...... 2

List of abbreviations ...... 4

Introduction ...... 5

1. Armed conflict ...... 6

1.1. International armed conflict ...... 6

1.2. Non-international armed conflict ...... 8

1.2.1. Armed conflicts under art. 3 common to the Geneva Conventions ...... 9

1.2.2. Armed conflicts under Additional Protocol II ...... 11

2. Combatants and civilians...... 13

2.1. Combatants ...... 13

2.1.1. Status ...... 13

2.1.2. Scope ...... 15

2.1.3. Collective or individual? ...... 18

2.2. Civilians ...... 19

2.2.1. Status ...... 19

2.2.2. Scope ...... 22

3. Unlawful combatants ...... 24

3.1. In general ...... 25

3.1.1. Unlawful combatants in international armed conflicts ...... 25

3.1.2. Unlawful combatants in non-international armed conflicts ...... 32

3.2. Al Qaeda and the Taliban ...... 33

3.2.1. Nature of the conflict ...... 33

3.2.2. Al Qaeda ...... 35

3.2.3. Taliban ...... 38

3.2.3.1. Meeting the criteria for lawful combatancy ...... 38

3.2.3.2. Is meeting the lawful combatancy criteria necessary? ...... 42

3.2.3.3. False arguments to deny the Taliban prisoner of war status ...... 42

3.2.3.4. Art. 5 G.C. III ...... 43

3.2.3.5. Conclusion ...... 45

3.3. Mercenaries...... 46

3.3.1. The Geneva Conventions, Additional Protocol I and the Mercenaries Convention ...... 46

3.3.2. Other instruments for the elimination of mercenarism ...... 50

3.3.3. Private military contractors/companies...... 51

3.3.4. Conclusion ...... 51

3.4. Child soldiers ...... 52

3.4.1. Status under the Geneva Conventions and Additional Protocols ...... 53

3.4.2. The ongoing endeavour towards a ban on child soldiers ...... 56

3.4.3. From theory to practice ...... 59

3.4.4. Conclusion ...... 60

3.5. Spies and saboteurs ...... 61

3.4.5. Spies ...... 61

3.4.6. Saboteurs ...... 64

Conclusion...... 65

Dutch summary ...... 67

References ...... 68

1. Treaties and resolutions ...... 68

2. Jurisprudence ...... 69

3. Books...... 69

4. Periodicals ...... 69

5. Other ...... 71

List of abbreviations

A.P. I Additional Protocol I

A.P. II Additional Protocol II

G.C. III Geneva Convention III

G.C. IV Geneva Convention IV

ICJ International Court of Justice

ICRC International Committee of the Red Cross

International Criminal Tribunal for the former ICTY Yugoslavia

IHL International Humanitarian Law

ISAF International Security Assistance Force

NATO Northern Alliance Treaty Organisation

UN United Nations

the U.S. the United States of America

Introduction

Since the United States and their Allies launched their war on terror, the concept of unlawful combatants has gained more prominence in the international debate. This debate was initiated when the Bush administration denied the Taliban and Al Qaeda detainees prisoner of war status and stated that they were to be regarded as unlawful combatants.1 A lot of critique was formulated on this statement. Nevertheless, the history of unlawful combatants dates back to the beginning of the laws of war. The concept was not invented by the U.S. government.2 The purpose of this thesis is to examine on the one hand the scope of the concept of unlawful combatants and on the other hand the protection they are granted under international humanitarian law. IHL provides protection for combatants and civilians in armed conflicts. However, nowhere are unlawful combatants mentioned. This led to claims that IHL does not foresee any protection regarding unlawful combatants.3 This essay will show that those claims are false.

The first two chapters will provide the context where the notion of unlawful combatants has developed itself. Hence, chapter one will shed a light on the difference between international and non- international armed conflicts. This is crucial because international law applies a different legal regime to the different conflicts. Chapter two deals with one of the main principles of international humanitarian law, namely the distinction between civilians and combatants. A good understanding of unlawful combatants is impossible without a basic knowledge about the status and scope of combatants and civilians in IHL. The third and final chapter will eventually cover unlawful combatants. In the first place, their situation in general will be discussed. This part will include civilians who directly participate in the hostilities, combatants who do not meet the criteria for lawful combatancy... Secondly, a few specific types of unlawful belligerents will be examined. The status of the Taliban and Al Qaeda members will be analysed. It is their status that triggered the intense debate about unlawful combatants. Mercenaries, child soldiers, spies and saboteurs are also taken into consideration.

It is also possible to evaluate the rights of unlawful combatants from a different perspective, namely the perspective of human rights law. However, this point of view is left outside the scope of this thesis. It will only examine their status from the angle of international humanitarian law.

1 WHITE HOUSE PRESS OFFICE, “Fact sheet”, 7 February 2002, http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf (consultation 28 April 2010). 2 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 3 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74.

1. Armed conflict

Before clarifying the status of unlawful combatants, it is necessary to explain some preliminary concepts in order to understand their situation better. The first concept I want to address is the one of armed conflicts. This is essential because it is the framework where the concept of combatants has developed itself. International humanitarian law distinguishes two types of armed conflicts: international and non-international armed conflicts. The rules apply differently depending on whether an armed conflict is international or internal in nature.4 At first sight, unlawful combatants do not appear in internal armed conflicts.5 Moreover, the law of non-international armed conflicts foresees no combatant status.6 Nevertheless, combatants are not denied any protection in internal armed conflicts.

1.1. International armed conflict The classic position of international law is one that is only concerned with inter-state conflicts. In relation to the principle of absolute sovereignty, non-international armed conflicts were considered to be within the domestic jurisdiction of the sovereign state.7 According to common article 2 of the Geneva Conventions, the Conventions will apply to:

“All cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”8

When it comes to an occupation, it is irrelevant whether this occupation is belligerent or pacific. When a state in the conflict is not a party to the Conventions, they still will apply to the other states that are bound by the Conventions. This means that the rejection of the provisions of a party do not discharge the other parties of their obligation to apply them since there is no principle of reciprocity. A non- bound state can also accept and apply the provisions.9 This can take the form of statements, like the one made during the Korean War by the North Korean Minister of Foreign Affairs and the Supreme Commander of the UN forces. Furthermore, the non-bound state can also inform the International Committee of the Red Cross of its intention. These declarations are always made on a reciprocal basis

4 STEWART, J.G., “Towards a single definition of armed conflict in international humanitarian law: a critique of internationalized conflict”, http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5PYAXX/$File/irrc_850_Stewart.pdf (consultation 6 December 2009). 5 PEJIC, J., “Unlawful/enemy combatants: interpretations and consequences” in M. N. SCHMITT and J. PEJIC (eds.), International law and armed conflict: exploring the fault lines: essays in honour of Yoram Dinstein, Martinus Nijhoff Publishers, Leiden, 2007, 335-355. 6WATKIN, K., “Combatants, unprivileged belligerents and conflicts in the 21st century”, http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (consultation 5 May 2009). 7 GREEN, L.C., The contemporary law of armed conflict, Manchester University Press, Manchester, 2008, 434 p. 9 Common art. 2, Geneva Conventions, 12 August 1949, United Nations Treaty Series, vol. 75, p. 31. (Hereafter G.C.). 9 KWAKWA, E., The international law of armed conflict: personal and material fields of application, Kluwer Academic Publishers, Dordrecht, 1992, 208 p.

where the other party is either bound by the Conventions or either issued a similar declaration.10 In practice, this will only happen in exceptional circumstances since most states have ratified the Conventions.11 However, when a non-bound state does not make a statement or a declaration, he still needs to respect the provisions that are regarded as customary international law.12 Which provisions are granted this grade, shall be dealt with later on in this explanation.

According to international law, a treaty can be suspended in accordance with the terms of that treaty. Nonetheless, certain treaty rules are so fundamental that they cannot be suspended. This is embodied in the Vienna Convention on the Law of Treaties. The fundamental rules are, amongst others, related to the protection of the human person contained in treaties of humanitarian character. Therefore, the Geneva Conventions and Additional Protocols are non-suspendable.13

The classic position of international law changed in 1977 with the adoption of Additional Protocol I. It is an example of the growing scope of international armed conflicts since World War II. The origin of the Protocol lies in the regional conflicts of the 1960s and 1970s: the struggle of the Portuguese colonies for independence, the Israeli-Palestinian conflict... The aim was to grant combatant status to non-state actors who would otherwise be seen as terrorists or rebels. An attempt was made to extend the scope of the Geneva Conventions to liberation wars who often resulted in guerrilla warfare.14 Such liberation wars are mostly carried out in a non-conventional way since they heavily rely on the civilian population and are more non-confrontational than conventional wars. As a result, the targets of retaliation are normally less determinate.15 Additional Protocol I widens the concept of international armed conflict to peoples fighting:

“Against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”16

Of course these conditions are open for interpretation since they are not defined. Kwakwa suggests that a set of criteria should be developed for ascertaining which groups should be recognised as liberation movements. One of them might be, for instance, a prior recognition by the international community. When it comes to self-determination the Protocol refers to UN instruments. In these instruments the concept of self-determination is narrowly defined. Consequently, this leaves less space for interpretation. Additionally, no state is going to admit it is a racist regime or exercising alien or

10 GREEN, L.C., The contemporary law of armed conflict, Manchester University Press, Manchester, 2008, 434 p. 11 HONIGSBERG, P.J., “Chasing enemy combatants and circumventing international law: a license for sanctioned abuse”, UCLA Journal of International Law and Foreign Affairs 2007, 4-95. 12 GREEN, L.C., The contemporary law of armed conflict, Manchester University Press, Manchester, 2008, 434 p. 13 Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331; GREEN, L.C., The contemporary law of armed conflict, Manchester University Press, Manchester, 2008, 434 p. 14 GREEN, L.C., The contemporary law of armed conflict, Manchester University Press, Manchester, 2008, 434 p. 15 KWAKWA, E., The international law of armed conflict: personal and material fields of application, Kluwer Academic Publishers, Dordrecht, 1992, 208 p. 16 Art. 1, Additional Protocol I to the Geneva Conventions concerning the protection of casualties of international armed conflicts, 8 June 1977, United Nations Treaty Series, vol. 1125, p. 3. (Hereafter A.P. I).

colonial domination. When a state has the right of auto-interpretation, it can easily deny the applicability of international law. However, this has not prevented the international community from taking action.17

The historical distinction between international and non-international armed conflicts has been broken down in the last decades. The rules regarding international armed conflicts have been gradually applied to internal armed conflicts.18 An illustration of the erosion of the idea that international armed conflicts only take place between states is the war against terrorism that started after the attacks on 11 September. This campaign has been recognised as an international armed conflict by, among others, the United Nations Security Council Resolutions.19

When looking at international jurisprudence, there is a proposal for a general definition of international armed conflicts from the International Criminal Tribunal for the former Yugoslavia. In the Tadic case, the Court stated that: “An armed conflict exists whenever there is a resort to armed force between states.”20 Several international bodies have embraced this definition.21

1.2. Non-international armed conflict States are not very keen on alien or international interference in their internal affairs. They believe that every state has the right to regulate its internal situation. Therefore, it will be for international humanitarian law harder to infiltrate non-international armed conflicts. According to the treaties of IHL there are two categories: armed conflicts under Additional Protocol II and armed conflicts under art. 3 common to the Geneva Conventions.22 In order to be comprehensive, riots could also be mentioned.23

The last category will be briefly discussed because they are not considered armed conflicts. It is merely to be complete. When riots are taking place, there is no stable situation in the country, but there is no armed conflict either. The government does not have full control of the situation because of, for instance, ethnic tensions or social disturbance. Nevertheless, the hostilities are not organised. During riots the instruments of international humanitarian law are not applicable and the state maintains it authority to act. It can take measures that are rather rare like declaring a state of emergency. Nonetheless, this does not give the state a free hand; she has to bear human rights treaties in mind.24

17 KWAKWA, E., The international law of armed conflict: personal and material fields of application, Kluwer Academic Publishers, Dordrecht, 1992, 208 p. 18 SHAW, M.N., International law, Cambridge University Press, New York, 2008, 1542 p. 19 WATKIN, K., “Combatants, unprivileged belligerents and conflicts in the 21st century”, http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (consultation 5 May 2009); Resolution 1368 of the United Nations Security Council (12 September 2001), UN Doc. S/RES/1368 (2001). 20 ICTY, Prosecutor vs. Tadic, decision on the defence motion for interlocutory appeal on jurisdiction, case no. IT-94-1-A (2 October 1995). 21 ICRC, “How is the term armed conflict defined in international humanitarian law?: International Committee of the Red Cross, opinion paper, March 2008”, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict- article-170308/$file/Opinion-paper-armed-conflict.pdf (consultation 6 December 2009). 22 BOSSUYT, M. and WOUTERS, J., Grondlijnen van internationaal recht, Intersentia, Antwerpen, 2005, 1086 p. 23 COGEN, M., Handboek internationaal recht, Kluwer, Mechelen, 2003, 490 p. 24 Ibid.

1.2.1. Armed conflicts under art. 3 common to the Geneva Conventions After World War II the idea was launched that a minimum set of rules of humanitarian law should be applicable, apart from the fact that it would be an international or a non-international armed conflict. The origin of this idea goes back to the Spanish Civil War of 1936-1939 which caused of lot of casualties. A first step in that direction was set during the negotiations of the Geneva Conventions. Eventually, the outcome was common art. 3 to the Geneva Conventions.25 It contains the minimum provisions applicable in internal armed conflicts and goes as follows:

“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.”26

Art. 3 will automatically apply and contracting parties need to respect the provisions, even if the rebels fail to do so.27 The hostilities may take place between governmental armed forces and non- governmental armed forces or between such groups only.28

In order to distinguish an armed conflict, in the sense of common art. 3, from less serious forms of violence, such as riots, the hostilities must reach a certain severity. Therefore, two criteria are used. On the one hand, there must be a minimum level of intensity. This may be the case when the hostilities are of a collective character or when the government is obliged to use military force instead of simply

25 BOSSUYT, M. and WOUTERS, J., Grondlijnen van internationaal recht, Intersentia, Antwerpen, 2005, 1086 p. 26 Common art. 3, G.C. 27 BOSSUYT, M. and WOUTERS, J., Grondlijnen van internationaal recht, Intersentia, Antwerpen, 2005, 1086 p. 28 ICRC, “How is the term armed conflict defined in international humanitarian law?: International Committee of the Red Cross, opinion paper, March 2008”, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict- article-170308/$file/Opinion-paper-armed-conflict.pdf (consultation 6 December 2009).

police forces. On the other hand, non-governmental groups must possess organized armed forces. This means that they have, for instance, a certain command structure and are able to sustain military operations.29 They must be capable to carry out the various duties and obligations imposed upon them by common article 3.30

In the international jurisprudence such a definition can be found in the Tadic case. The Appeals Chamber of the ICTY stated that: “An armed conflict exists whenever there is a resort to protracted violence between governmental authorities and organized armed groups or between such groups within a State.”31

The application in the field of common art. 3 revealed some flaws. In the first place, there is no definition of armed conflicts. Moreover, the provision is very brief and compact. This means that the notions necessarily need to be interpreted. Nonetheless, the lack of an authoritative definition is not automatically a problem. It can be precise enough to cover all possible appearances of a particular concept and an excessively strict definition may result in consequences that are far removed from the intention of the drafters. Therefore, this imperfection could be seen as strength. However, states can also hide behind the lack of a definition to prevent the application of international humanitarian law because it is the state itself that decides if there exists an armed conflict. They could be hesitant to bind themselves to rules which could be perceived as favouring political opponents.32 Secondly, in the past problems arose with regard to the distinction between international and non-international armed conflicts. Especially during the Cold War a lot of internal conflicts were receiving support from either the United States or either the Soviet Union, which made them international.33

The major significance of common art. 3 is that it has become customary international law. This was expressed by the International Court of Justice in the Nicaragua case:

“Although Nicaragua has refrained from referring to the four Geneva Conventions of 12 August 1949, to which Nicaragua and the United States are parties, the Court considers that the rules stated in Article 3, which is common to the four Conventions, applying to armed conflicts of a non-international character, should be applied. The United States is under an obligation to "respect" the Conventions and even to "ensure respect" for them, and thus not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3. This obligation derives from the general principles of humanitarian law to which the Conventions merely give specific expression.”34

29 ICRC, “How is the term armed conflict defined in international humanitarian law?: International Committee of the Red Cross, opinion paper, March 2008”, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict- article-170308/$file/Opinion-paper-armed-conflict.pdf (consultation 6 December 2009). 26 MOIR, L., The law of internal armed conflict, Cambridge University Press, Cambridge, 2002, 307 p. 31 ICTY, Prosecutor vs. Tadic, decision on the defence motion for interlocutory appeal on jurisdiction, case no. IT-94-1-A (2 October 1995). 32 MOIR, L., The law of internal armed conflict, Cambridge University Press, Cambridge, 2002, 307 p.; COGEN, M., Handboek internationaal recht, Kluwer, Mechelen, 2003, 490 p. 33 COGEN, M., Handboek internationaal recht, Kluwer, Mechelen, 2003, 490 p. 34 ICJ, Military and Paramilitary Activities in and against Nicaragua (the Republic of Nicaragua vs. the United States of America), Judgment, ICJ Reports 1986, 14.

Further, the Court notes that although common art. 3 refers to non-international armed conflicts, it also contains the minimum provisions applicable in an international armed conflict.35

1.2.2. Armed conflicts under Additional Protocol II The fact that eighty percent of the victims in armed conflicts since World War II were involved in non-international armed conflicts, led to the adoption of Additional Protocol II. This Protocol deals exclusively with internal armed conflicts.36 The scope of this instrument can be found in art.1. It states that two situations are excluded. Firstly, it does not apply to issues under art. 1 of Additional Protocol I, namely the wars against colonial or alien occupation and racist regimes in the exercise of the right to self-determination. In the second place, riots are also excluded from the scope. They are not regarded as armed conflicts.37 The armed conflicts that fall under the scope of Additional Protocol II are the 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.”38

This definition is narrower than common art. 3. In the first place, there is a requirement of territorial control. The non-governmental groups need this control for their military operations and to implement the provisions of Additional Protocol II. This provision has been criticised because it is impossible for rebels to attain such effective territorial control until the situation is one of civil war in the classic sense. Regarding modern -and especially guerrilla- warfare, armed conflict situations are characterised by high mobility and territorial control continuously changes hands. Hence, the requirement of effective territorial control in these circumstances becomes meaningless.39 Secondly, it only applies between state armed forces and dissident armed forces or other organized armed groups, whereas common art. 3 also applies between non-state armed groups.40 Thirdly, the Diplomatic Conference decided that the conflict must have reached a critical point before the Protocol could be applicable. The terms “sustained” and “concerted” were used. They imply on the duration and intensity. Nevertheless, states decide for themselves if the Protocol applies.41

Another aspect is that Additional Protocol II: “Develops and supplements common art. 3, without modifying its existing conditions of application”.42 This means that the restrictive definition of non- international armed conflicts is only applicable for A.P. II. It is not applicable to non-international

35 ICJ, Military and Paramilitary Activities in and against Nicaragua (the Republic of Nicaragua vs. the United States of America), Judgment, ICJ Reports 1986, 14. 36 FORSYTHE, D.P., “Legal management of internal war: the 1977 Protocol on non-international armed conflicts”, The American Journal of International Law 1978, 272-295. 37 Art. 1, Additional Protocol II to the Geneva Conventions concerning the protection of casualties of non- international armed conflicts, 8 June1977, United Nations Treaty Series, vol. 1125, p. 610. (Hereafter A.P. II). 38 Art. 1, A.P. II. 39 MOIR, L., The law of internal armed conflict, Cambridge University Press, Cambridge, 2002, 307 p. 40 ICRC, “How is the term armed conflict defined in international humanitarian law?: International Committee of the Red Cross, opinion paper, March 2008”, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict- article-170308/$file/Opinion-paper-armed-conflict.pdf (consultation 6 December 2009). 41 MOIR, L., The law of internal armed conflict, Cambridge University Press, Cambridge, 2002, 307 p. 38 Art. 1, A.P. II.

armed conflicts in general.43 The internal armed conflicts falling under Protocol II are regarded as a subset of internal armed conflicts in general.44

This treaty is quite unpopular since a number of countries, who have ratified A.P. I, did not do the same with Additional Protocol II. Especially the Third World countries, they fear that ratification will give secessionist groups some degree of legal or at least political legitimacy. This could be invoked by armed groups that threaten their sovereignty.45

The ICTY stated in the Tadic case that a body of customary international law has been developed to regulate the conduct of internal armed conflicts. However, this body goes much further by declaring that there are rules applicable to conflicts neither based upon common art. 3 nor upon Additional Protocol II.46

43 ICRC, “How is the term armed conflict defined in international humanitarian law?: International Committee of the Red Cross, opinion paper, March 2008”, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict- article-170308/$file/Opinion-paper-armed-conflict.pdf (consultation 6 December 2009). 44 MOIR, L., The law of internal armed conflict, Cambridge University Press, Cambridge, 2002, 307 p. 45 KWAKWA, E., The international law of armed conflict: personal and material fields of application, Kluwer Academic Publishers, Dordrecht, 1992, 208 p. 42 ICTY, Prosecutor vs. Tadic, decision on the defence motion for interlocutory appeal on jurisdiction, case no. IT-94-1-A (2 October 1995); MOIR, L., The law of internal armed conflict, Cambridge University Press, Cambridge, 2002, 307 p.

2. Combatants and civilians

A second preliminary concept that needs clarification is the concept of combatants. In order to understand what is meant by unlawful combatants, it is necessary to know which persons are seen as lawful combatants. The concept of combatants goes hand in hand with the one of civilians since the summa divisio of people acting in armed conflicts is based on the distinction between combatants and civilians. Moreover, their situation is also essential for the definition of unlawful combatants. In case of an armed conflict, all persons affected by it are either combatant or civilian. International law is based on the idea that everyone fits one category, nobody can be left out.47 However, a person can never be both a combatant and a civilian at the same time. A civilian may convert himself into a combatant, but he cannot shift constantly from one status to the other. Every combatant is a former civilian because nobody is born as combatant. Although a combatant may retire and become civilian again, he cannot fight the enemy and remain civilian.48

2.1. Combatants

2.1.1. Status The idea that there is a privileged class of warriors who are bound by and benefit from the law of war finds its roots in Roman law. According to the jus fetaile, no person could lawfully engage in battle with the public enemy without being enrolled and taking the military oath. This idea was restated in the Codes of Chivalry of the Middle Ages and developed through history to the concept as is known today as lawful combatancy.49

Combatants have a special status in international armed conflicts. They have the right to participate in the hostilities and receive immunity for killing carried out in accordance with the law. This is often referred to as “combatant immunity”.50 In other words, they cannot be prosecuted for lawful acts of war in the course of military operations even if their behaviour would constitute a serious crime in peacetime, such as murder. Prosecution is only open to combatants who violated international humanitarian law, in particular war crimes.51 When they are captured by the enemy, they are granted prisoner of war status and benefit from the protection of the Third Geneva Convention.52 Nonetheless,

47 CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 48 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p. 49 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 50 Ibid. 51 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 45 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77.

their situation does not only produce advantages. Combatants become lawful military targets. They are allowed to shoot, but they also bear the risk of being shot.53

The concept and legal implications of privileged combatancy are deeply entrenched in the customary law of armed conflict. They were, for example, affirmed in the Lieber Code of 1863, which was a first attempt to codify the laws of war and formed a basis for the Hague Conventions of 1899 and 1907.54

The concept of combatancy is limited to international armed conflicts. In non-international armed conflicts there is no right to fight. Captured rebels are usually treated as ordinary criminals. They can be brought to court for murder or treason. However, a government can treat the captured as prisoners of war, like for instance happened during the American Civil War.55 Moreover, common article 3 of the Geneva Conventions is applicable in non-international armed conflicts and assures a minimal standard of human treatment.56 If the rebel forces are in control of a part of the national territory, Additional Protocol II is applicable. It also guarantees a minimal standard of human treatment.57 According to Watkin, the lack of combatant status in non-international armed conflicts does not change two issues. In the first place, not only civilians must be protected. Persons who actively participate in the hostilities are to be distinguished from civilians and deserve a degree of protection. In the second place, specific agreements can use the term “combatant”. This is made available in common art. 3 to the Geneva Conventions.58

In international armed conflicts, a combatant can withdraw from the hostilities by retiring and turning into a civilian. He can also withdraw by becoming hors de combat. This happens because he lays down his weapons and surrenders or because he gets wounded, sick or shipwrecked. When he falls in these circumstances in the hands of the enemy, he is granted prisoner of war status. This detention has the purpose to prevent the further participation in the hostilities. He cannot be prosecuted simply for having taken part in hostilities.59

53 CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 54 SCHINDLER, D. And TOMAN, J., The laws of armed conflicts, Martinus Nijhof Publishers, The Hague, 1988, 3-23; GOLDMAN, R.K. and TITTEMORE, B.D., “Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law”, ASIL Task Force Papers 2002, 1-58. 55 CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 56 Common art. 3, G.C. 57 A.P. II. 58 Common art. 3, G.C.; WATKIN, K., “Combatants, unprivileged belligerents and conflicts in the 21st century”, http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (consultation 5 May 2009). 59 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p.

2.1.2. Scope The first relevant source for lawful combatancy in international armed conflicts is found in the 1907 Hague Regulations.60 During the Hague meetings, there were two contrasting visions. The first group represented the interests of the dominant European military powers. They strongly emphasized the importance of regular armed forces since this reflected their military superiority. The dominant military powers were in favour of a direct way of warfare, which is more or less a face-to-face combat. The second group defended the patriotic right of all citizens to drive back an invader. They consisted of less dominant military powers. It echoes an indirect way of war, which is linked to guerrilla warfare. Eventually a compromise was reached.61 Firstly, the regular members of the armed forces of a state were recognised as combatants. Secondly, when a militia was not part of the armed forces, four cumulative conditions had to been met before the members could be seen as a combatant: subordination to a responsible command, a fixed distinctive emblem, carrying arms openly and conduct in accordance with the law of international armed conflict. Finally, the levée en masse was also considered lawful, but this will be dealt with later on in this explanation.62 The Third Geneva Convention maintains the Hague Regulations and makes it stricter. The following persons are granted prisoner of war status when captured:

“(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, fulfil 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.”63

In comparison with the Hague Regulations, two conditions were added to the already existing ones. To begin with, militias and volunteer corpses who are not part of the armed forces must belong to a party of the conflict. In the second place, resistance movements must be organized.64 A last and seventh condition is the one of non-allegiance to the detaining state. It is not specifically mentioned in the Geneva Conventions, but is derived from the case law. The principle case is the 1967

60 Hague Convention respecting the laws and customs of war on land, 18 October 1907, League of Nations Treaty Series, vol. 54, p. 435. (Hereafter: Hague Regulations on the laws and customs of war on land). 61 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 62 Hague Regulations on the laws and customs of war on land; GOLDMAN, R.K. and TITTEMORE, B.D., “Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law”, ASIL Task Force Papers 2002, 1-58. 63 Art. 4, Geneva Convention relative to the treatment of prisoners of war, 12 August 1949, United Nations Treaty Series, vol. 75, p. 135. (Hereafter G.C. III). 64 Ibid.

judgment of the Privy Council in the Koi case. The Council stated that nationals of the detaining power as well as other persons owing it allegiance were not entitled to prisoner of war status.65

The post World War II period generated more pressure to recognize members of guerrilla organizations as lawful combatants. One of the causes was the changing nature of the conflicts to armed struggles for self-determination. These liberation wars were primarily fought as guerrilla warfare. It resulted in Additional Protocol I. It marked a shift from a more narrow class of privileged belligerents to one where participants in irregular warfare were granted combatant status if they accepted humanitarian norms.66 A definition of combatants in the light of this Protocol is found in art. 43:

“1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict. 2. 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.”67

Furthermore, every combatant who is captured shall be a prisoner of war. When combatants do not comply with the rules of international law, they are not deprived from their right to be a combatant or prisoner of war. Except in the following circumstances:

“3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.”68

In the situation that an armed combatant cannot distinguish himself, he loses the right to be a prisoner of war. However, he shall be given protection equivalent to those accorded to prisoners of war by the Third Geneva Convention and Additional Protocol I.69

65Public Prosecutor vs. Koi et al. (1967), [1968] A.C. 829; DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p. 66 WATKIN, K., “Combatants, unprivileged belligerents and conflicts in the 21st century”, http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (consultation 5 May 2009). 67 Art. 43, A.P. I. 68 Art. 44.3, A.P. I. 69 Ibid.

In essence, Additional Protocol I does not change the criteria for attaining combatants status remarkably. It only removes in some circumstances the obligation to wear a fixed distinctive sign and stipulates when arms must be carried openly.70

The requirement to be organized and under responsible command is the least controversial of the conditions for lawful combatancy. Originally, it was suggested as a means of ensuring compliance with the law of armed conflict. A formal command and rank structure is not required but there must be sufficient discipline to guarantee the respect for international law. The presence of a disciplined armed force is one of the safeguards against war crimes.71 This condition was also designed to exclude individuals who act on their own.72 The obligation of wearing a fixed distinctive sign is one of the most problematic conditions. The purpose is on the one hand protecting combatants from acts of perfidy and on the other hand to distinguish civilians from combatants.73 The requirement of distinction means that it must identify the force using it whereas the requirement of fixity means that the sign may not confuse the enemy. The most obvious example is that of a particular uniform. Combatants must wear it throughout military operations, but not when they are off-duty or carrying out non-military operations. Nevertheless, the criteria for wearing a fixed distinctive sign are vague. For instance, the sign must be recognizable at a distance. However combatants do not attempt to draw attention to themselves. Soldiers in uniform are even allowed to use camouflage as long as they use the topographical conditions. Furthermore, when carrying out military operations at night, the sign is not recognizable at a distance unless it is illuminated.74 This vagueness means that the capturing state has the freedom to adopt a narrow interpretation of the criteria. They are given the autonomy to determine the status of detained personnel. Additional Protocol I establishes circumstances when the sign does not have to be worn, but this is only when the ordinary rules cannot be applied because of the nature of the hostilities.75 Nonetheless, the main purpose of this condition is not that combatants can be seen, but that they do not create the false impression that they are civilians. In addition to the fact that combatants must wear a fixed distinctive sign, the vehicle which drives them to battle must also be properly identified.76 Another problematic condition is the one of carrying arms openly. The purposes are the same as the wearing of a fixed distinctive sign. This provision raises the question whether it is necessary to carry them openly at all times. Moreover, participation in hostilities does not always require the carrying of arms, like for instance, the operation of laser designator. Relying too heavily on the carrying of arms

70 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 71 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 72 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p. 73 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 74 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge University press, Cambridge, 2004, 275 p. 75 Art. 44.3, A.P. I; WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 76 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge University press, Cambridge, 2004, 275 p.

may lead to an unrealistic view of what actually constitutes taking an active part in hostilities.77 What counts is that a combatant must abstain from creating the false impression that he is a civilian. He has to carry his arms openly in a reasonable way.78 The last condition is the conduct of hostilities in compliance with the laws and customs of war. The nature of irregular combat could raise doubt whether it is realistic for guerrilla forces to meet all the obligations of humanitarian law, such as the treatment of prisoners of war. It would be dangerous to propose a different standard for irregular forces; this could erode the principle of equality in application of international humanitarian law.79 This condition restates that no combatant can go to war without restraints and prohibitions found in the laws and customs of war. There are voices that regular combatants, members of the armed forces of a state, do not have to meet these conditions in order to obtain prisoner of war status. This would mean that they are granted prisoner of war status unconditionally, except when spying without a uniform. For instance, compliance with the laws and customs of war might be expected, but is not required.80

2.1.3. Collective or individual? There is no consensus as to which conditions are collective and which are individual. For regular troops, the issue does not arise. There is an assumption that these forces collectively fulfil all the conditions, although individuals can lose combatant status if they do not meet the criteria. In the case of irregular forces, it is more complex. The organisation conditions, such as having a responsible command and belonging to a party of the conflict, have to be met collectively. Whereas the non- allegiance to the detaining state is applied individually. The wearing of fixed distinctive sign calls for a preliminary action on the part of the group, but also needs to be respected by the individual. With regard to the carrying of arms openly and observance of the law of international armed conflict, Dinstein thinks that their fulfilment should be examined primarily on an individual basis and only secondarily on a group basis.81 However, a state can deny all the members of a group combatant status if the group does not comply with the rules of international humanitarian law. This can be found in the commentaries from the International Committee of the Red Cross on art. 44 of Additional Protocol I.82 The exclusion can for instance be justified when it comes to terrorist organisations which follow a systematic campaign against innocent civilians or when a group does not fight on behalf of a party to the conflict. Group denial from combatant status also means that individual members are treated adversely because of group characteristics and not because of their own actions.83

77 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 78 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge University press, Cambridge, 2004, 275 p. 79 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 80 GOLDMAN, R.K. and TITTEMORE, B.D., “Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law”, ASIL Task Force Papers 2002, 1-58. 81 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge University press, Cambridge, 2004, 275. 82 ICRC, Commentary to art. 44, A.P. I, § 1688, http://www.icrc.org/ihl.nsf/COM/470-750054?OpenDocument (consultation 3 Mai 2010); WATKIN, K., “Combatants, unprivileged belligerents and conflicts in the 21st century”, http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (consultation 5 May 2009). 83 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77.

2.2. Civilians

2.2.1. Status The second privileged class in international humanitarian law is the class of civilians. One of the oldest rules of the law of war states that they are to be protected from the dangers arising from military operations and that they are not lawful military targets.84 This is the principle of civilian protection which is also called non-combatant immunity or the principle of distinction between combatants and non-combatants.85 The idea already appeared in the 1907 Hague Regulations.86 However, there was a gap between the principle and actual state behaviour. During World War I several merchant ships were sunk by the Germans without warning and during World War II there were the aerial raids on German cities such as Dresden and the atomic bombs on Hiroshima and Nagasaki. One of the goals of these air raids was to undermine the morale of the population. In 1949, the Fourth Geneva Convention was adopted. It did not address the question of the protection of the civilian population as a whole and does not provide protection in all circumstances in time of war. The scope is restricted to specific categories of victims. There was a degree of indifference towards the protection of civilians because it was considered a matter of Hague law. Therefore, the aspect was not revised.87 Today, the basic rule is found in Additional Protocol I:

“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”88

It meant a real change for civilians in the law of armed conflict: it explicitly stipulated the protection in a very comprehensive way.89 All armed attacks against the civilian population or against non-military objects are prohibited. Weapons, which affect indiscriminately both military and non-military objectives or both armed forces and civilians, are not allowed either.90 Indiscriminate attacks differ from direct attacks because the actor is not trying to harm the civilian population; it is merely a matter of no concern to the attacker. Furthermore, the intention is important, not the number of civilian fatalities. The following actions are

84 WATKIN, K., “Combatants, unprivileged belligerents and conflicts in the 21st century”, http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (consultation 5 May 2009). 85 HAYASHI, M.N., “The principle of civilian protection and contemporary armed conflict” in H.M. HENSEL (ed.), The law of armed conflict: constraint on the contemporary use of military force, Ashgate Publishing Ltd., Aldershot, 2005, 105-129. 86 Hague Regulations on the laws and customs of war on land ; GREEN, L.C., The contemporary law of armed conflict, Manchester University Press, Manchester, 2008, 434 p. 87 Geneva Convention relative to the protection of civilian persons in time of war, 12 August 1949, United Nations Treaty Series, vol. 75, p. 287. (Hereafter G.C. IV); HAYASHI, M.N., “The principle of civilian protection and contemporary armed conflict” in H.M. HENSEL (ed.), The law of armed conflict: constraint on the contemporary use of military force, Ashgate Publishing Ltd., Aldershot, 2005, 105-129. 88 Art. 48, A.P. I. 89 HAYASHI, M.N., “The principle of civilian protection and contemporary armed conflict” in H.M. HENSEL (ed.), The law of armed conflict: constraint on the contemporary use of military force, Ashgate Publishing Ltd., Aldershot, 2005, 105-129. 90 Art. 51, A.P. I.

amongst others forbidden: to fire blindly into enemy controlled territory, to release at random bombs over enemy territory after missing the target while not being able to identify the target and to fire imprecise missiles against military objectives located near civilian objects.91 Even if civilians are not the target, their proximity to a military objective may result in it not being attacked if civilian casualties would be excessive.92 This principle of proportionality is recognised as customary international law. A disproportionate or -as the Protocol states- excessive attack is regarded as war crime. A proportionate attack can never be indiscriminate. For the test of proportionality the Protocol refers to the expected injury to civilians and to the anticipated military advantage. This formulation has been criticized because the whole assessment is not an exact science and contains a subjective element.93 It is also the intention that counts since a premeditated attack is categorized as a war crime. Even if the attack does not achieve the goal of the actor, it would still amount to a war crime. Attacks against combatants or military objectives may result in civilian casualties or collateral damage. There is a possibility that civilian casualties are caused by a human error or by a mechanical malfunction. In these circumstances, the attack against civilians is not deliberate.94 Next, there is a principle that objects indispensable for the survival of the civilian population must not be attacked. It can be found in art. 54 of Additional Protocol I. This provision states that starvation as a method of warfare is forbidden. It gives an enumeration of objects that may not be attacked such as foodstuff, crops, livestock, drinking water installations... However, the enumeration is only illustrative; it can also include shelter and clothing. An attack against these objects is prohibited only for the purpose of denying them for the sustenance value to the civilian population. They may be lawfully attacked if they are solely used for the members of armed forces or in direct support of military action. For instance, a drinking water installation in a military base may be destroyed. Nonetheless, there is an exception to the principle that objects indispensable for the survival of the civilian population must not be attacked. It is only allowed to a party to the conflict in defence of its national territory under its own control against an invasion if it is motivated by imperative military necessity. It refers to the legality of the scorched earth policy. This was inter alia used during retreats in the course of World War II. The scorched earth policy can only be used when the area belongs to the belligerent party and is under its control, solely when the party is in retreat and not when the area is being liberated from the enemy. Regarding siege warfare, when a siege is laid to a town inhabited by both civilians and combatants, starvation and destruction of food sources is prohibited. It only loses immunity when it is exclusively used by the armed forces. Nevertheless, a siege is not a siege when nourishment cannot be deprived. What if civilians in a besieged town are offered safe passage but choose to stay, what legitimate claim do they have for protection from the hardships of starvation? Similarly, if civilians are forced to stay by the commander of the armed forces, why would the enemy not destroy the food sources? The refusal by the commander of the armed forces to evacuate the civilians falls under the prohibition to use civilians as human shields, which is explained hereafter. However, there is a direct ban on using starvation as a method of forcing civilians to move away so

91 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge University press, Cambridge, 2004, 275 p. 92 Art. 51, A.P. I; WATKIN, K., “Combatants, unprivileged belligerents and conflicts in the 21st century”, http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (consultation 5 May 2009). 93 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge University press, Cambridge, 2004, 275 p. 94 Ibid.

that the besieging force does not employ starvation as a means of removing civilians from their homes.95

There are not only obligations for the attacker, the other side also needs to take some precautions. They shall:

“(a) Endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (b) avoid locating military objectives within or near densely populated areas; (c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.”96

It is the obligation not to use civilians as human shields. The reverse side is that civilians do not have the right to take direct part in the hostilities. There is an exception in the case of a levée en masse, which will be discussed later on. When they do take part in the hostilities, civilians become legitimate targets of armed attacks for as long as they participate. However, they are not granted combatant status, they remain civilians.97

In non-international armed conflicts, civilians are protected by common art. 3 to the Geneva Conventions. It contains the minimum principles of humanitarian law such as the prohibition of violence to life and person, prohibition of offences against personal dignity...98 Nevertheless, it does not ban explicitly indiscriminate attacks. Furthermore, it protects more individual civilians rather than the civilian population as a whole and the exact meaning of non-international armed conflict is not clear.99 In 1977, Additional Protocol II was adopted and it provides that: “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.”100 The Protocol has the same problem as common art. 3 because states determine themselves whether it is applicable or not. However, there are also claims that the principle of civilian protection of Additional Protocol I also must apply in non-international armed conflicts. Remarkably, the norm is not supported in practice. It is constantly being violated by several states.101

When throwing a glance at the jurisprudence, several cases come to the attention.

95 Art. 54, A.P. I; DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge University press, Cambridge, 2004, 275 p. 96 Art. 58, A.P. I. 97 CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 98 Common art. 3, G.C.; GREEN, L.C., The contemporary law of armed conflict, Manchester University Press, Manchester, 2008, 434 p. 99 HAYASHI, M.N., “The principle of civilian protection and contemporary armed conflict” in H.M. HENSEL (ed.), The law of armed conflict: constraint on the contemporary use of military force, Ashgate Publishing Ltd., Aldershot, 2005, 105-129. 100 Art. 13, A.P. II. 101 HAYASHI, M.N., “The principle of civilian protection and contemporary armed conflict” in H.M. HENSEL (ed.), The law of armed conflict: constraint on the contemporary use of military force, Ashgate Publishing Ltd., Aldershot, 2005, 105-129.

The ICJ identified in its 1996 advisory opinion regarding the legality of the threat and use of nuclear weapons that there is a principle of civilian protection. It said that attacks against civilians and weapons, that are incapable of distinguishing between civilians and military targets, are prohibited. The Court stated it was customary international law, though it did not refer to actual state behaviour. In the Nicaragua case common art. 3 of the Geneva Conventions was also considered customary international law and it ought to apply in both international and internal armed conflicts. Furthermore, the ICTY stated that the principle of civilian protection is also applicable in internal wars. It remains astonishing that both the ICJ and the ICTY conclude that the principle of civilian protection is a customary rule. To become a customary rule, the rule must be widespread among states in their actual behaviour and states must conduct their actions in the belief that is a legal obligation. However, the principle of civilian protection is not reflected by state behaviour. The ICTY used government statements instead of actual state behaviour as evidence. States do not always conduct their behaviour in accordance with their own statements. Nevertheless, the principle has been recognized by the international community and there is not much criticism on the assessments of the various courts.102

2.2.2. Scope A definition of civilians can be found in Additional Protocol I: “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.”103 It uses a negative approach by saying that a person who is not a combatant is regarded as a civilian. Should any doubt arise whether a person is a civilian or a combatant, then the person shall be considered a civilian.104 This reflects the idea in international law that nobody can be left out. A widely held view is that there is a bright line separation between combatants and civilians. The Protocol first defines who is regarded as a combatant in art. 43 and refers to art. 4 G.C. III. After this definition, it states that all persons who are not combatants are civilians.105 This approach is preferable because it is all-inclusive. However, it is only effective when there is a good understanding of the concept of combatants and the cross over criteria for civilians losing the protection of their status.106 Additional Protocol I also provides a definition for the civilian population and civilian objects. The civilian population consists of all persons who are civilians. The presence of non-civilians amongst the civilian population does not remove that population from its civilian character.107 Civilian objects are all objects which are not military objectives.108

102 ICJ, Military and Paramilitary Activities in and against Nicaragua (the Republic of Nicaragua v. the United States of America), Judgment, ICJ Reports 1986, 14; ICJ, The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 256; ICTY, Prosecutor vs. Tadic, decision on the defence motion for interlocutory appeal on jurisdiction, case no. IT-94-1-A (2 October 1995); HAYASHI, M.N., “The principle of civilian protection and contemporary armed conflict” in H.M. HENSEL (ed.), The law of armed conflict: constraint on the contemporary use of military force, Ashgate Publishing Ltd., Aldershot, 2005, 105- 129. 103 Art. 50, A.P. I. 104 Ibid. 105 Art. 4A, G.C. III; Art. 43 and 50, A.P. I; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 106 WATKIN, K., “Combatants, unprivileged belligerents and conflicts in the 21st century”, http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (consultation 5 May 2009). 107 Art. 50, A.P. I. 108 Art. 52, A.P. I.

In some circumstances, civilians are granted prisoner of war status upon capturing. In the first place there is the levée en masse. A definition of this phenomenon can be found in art. 4 of the Third Geneva Convention: “Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.”109 It was the result of the compromise reached between the dominant and patriotic states in the 1907 Hague Regulations, which were upheld in the Third Geneva Convention.110 The levée en masse can only take place in non-occupied territory in international armed conflicts.111 They only have to meet two conditions: carrying arms openly and respect the laws of international armed conflict. There is no need to be organised or to wear a fixed distinctive sign. It is an idea that goes back to the French Revolution. At the point of invasion, the civilian population can take up arms spontaneously to repel the invaders. All they do is defend the country.112 In occupied territory this phenomenon cannot take place. In order to be lawful, persons have to fulfil the six (seven) conditions written down in art. 4 of the Third Geneva Convention and art. 44 of Additional Protocol I.113 In the second place the following persons are also granted prisoner of war status:

“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.”114

This is the case when civilians are employed by armed forces and accompany them. As long as they are not members of the armed forces and do not actively take part in the hostilities, they remain civilians. Nevertheless, they are very vulnerable because they can be caught in the crossfire when the enemy attacks are, for instance, focused on the military base where they are employed. Therefore, civilians who accompany armed forces are regarded as prisoners of war when they are captured.115

109 Art. 4, G.C. III. 110 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 111 CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 112 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p. 113 CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 114 art. 4A.4, G.C. III. 115 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p.

3. Unlawful combatants

As mentioned above, the summa divisio of persons acting in armed conflicts is based on the distinction between civilians and combatants. Moreover, there is an idea that everybody fits one of these two privileged classes and that nobody can be left out.116 Every person has the fundamental right to recognition before the law. It is one of the general principles of the Geneva Conventions and Additional Protocols.117 However, voices are raised that there is a grey area between civilians and combatants, that is covered by the unlawful combatants.118 The term appears for the first time in the 1942 U.S. Supreme Court case of Ex Parte Quirin.119 It handles about German saboteurs who were sent to the United States to destroy war facilities. Once they had set foot on American soil, they got rid of their uniforms. The Court stated that they were unlawful combatants and that they should not receive prisoner of war status.120 Ever since, the term has been used widely in legal literature and military manuals, although it does not appear in any treaty.121 Since the 2001 attacks on the World Trade Center and the following war against terrorism by the United States and its Allies with invasions in Afghanistan and Iraq, the term has gained more prominence and launched an intensive debate about the scope and the status of the persons regarded as unlawful combatants. The question was whether Taliban and Al Qaeda fighters should be given prisoner of war status. Nevertheless, the history of unlawful combatants starts long before the Quirin case. There were already discussions during the American Civil War, the Franco-Prussian War...122 The concept of unlawful combatancy has been around for as long as there have been laws of war but the meaning of the term always depended on historical developments.123 Unlawful combatants cannot only be found in international armed conflicts, but also in internal armed conflicts. They are also not only called unlawful combatants. There is a wide variety of terms to describe them: unprivileged belligerents, terrorists, insurgents, criminals...124 There are several categories of unlawful combatants who will be dealt with in this thesis. Amongst them are the situations of mercenaries, child soldiers, civilians who take a direct part in the hostilities, spies, saboteurs, Taliban and Al Qaeda members. As the term speaks for itself, unlawful combatants are persons who take part in hostilities but without being entitled to do so. Since they are not defined in international treaties, their status is unclear.125 However, it is not possible that

116 WATKIN, K., “Combatants, unprivileged belligerents and conflicts in the 21st century”, http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (consultation 5 May 2009). 117 VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 118 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 119 BILKOVA, V., “Members of private military and security companies and/as unlawful combatants”, Academy of European law 2009, 1-15. 120 Ex Parte Quirin, 317 U.S. 1 (1942). 121 CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 122 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 123 VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 124 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 125 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74.

are denied every right. Certain basic human rights are to be accorded to every person, regardless of his status.126

3.1. In general

3.1.1. Unlawful combatants in international armed conflicts The general category of unlawful combatants includes civilians who participate directly in the hostilities.127 Also included are irregular forces, such as guerrillas, partisans and members of resistance movements, who either fail to distinguish themselves from the civilian population or do not fulfil the requirements for privileged combatant status.128 They cannot be seen as combatants because they are not entitled to participate in the conflict. Is Civilian status also denied? One could argue that this is the case because they actually take part in the conflict, whereas civilians are prohibited to do so.129

A combatant, who is captured, will receive prisoner of war status as long as he is a lawful combatant. The distinction between lawful and unlawful combatants is a consequence of the fundamental distinction between combatants and civilians. The principal purpose of the distinction between lawful and unlawful combatants is to preserve the distinction between combatants and civilians. Civilians can only be protected by enemy attacks if they can be identified as non-combatants.130 Additional Protocol I even forbids act of perfidy such as the feigning of civilian or non-combatant status.131 Unlawful combatants try to gain the advantages of combatant status without the negative aspects. In a way they defy the rules of fair play. If one wants the advantages, one also has to bear the risks.132 When the division lines are blurred, it will eventually end in civilians suffering the consequences of being suspected as covert combatants. According to customary international law, the sanction on a combatant pretending to be a civilian is that he will lose prisoner of war status. As mentioned above, a civilian, who does not participate in the hostilities, is protected by international humanitarian law. Nevertheless, a person is not permitted to wear two caps simultaneously: the cap of a civilian and the helmet of a soldier. A person acting as a civilian by day and engaging in military actions by night, is neither a civilian nor a lawful combatant. He will be seen as an unlawful combatant and will lose the privileges appertaining to lawful combatancy.133 When a person is captured, it is not always clear to which category he belongs. In that case, he will receive the advantage of doubt: the protection under international humanitarian law will be granted until a competent tribunal has determined his status. IHL does not define what a competent tribunal is. The conditions to be regarded as such a tribunal will

126 MEISELS, T., “Combatants- lawful and unlawful”, Law and Philosophy 2007, 31-65. 127 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 128 GOLDMAN, R.K. and TITTEMORE, B.D., “Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law”, ASIL Task Force Papers 2002, 1- 58. 129 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 130 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p. 131 Art. 37, A.P. I. 132 MEISELS, T., “Combatants- lawful and unlawful”, Law and Philosophy 2007, 31-65. 133 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p.

be discussed later on in the part about the status of the Taliban members.134 If the tribunal does not grant him prisoner of war status, he will be qualified as an unlawful combatant. In these circumstances, he is not protected by the Third Geneva Convention.135

Värk divides unlawful combatants in two categories. He makes a distinction on the basis of where they carry out their missions. In the first place, there are those operating behind enemy lines in the enemy’s home territory or in the occupied territory, such as spies and saboteurs. In the second place, there are those unlawful combatants operating directly in the battlefield. These are the unlawful combatants who participate directly in the hostilities without the entitlement to do so. They do not only pose a threat to the enemy soldiers but also to the civilians because they fail to distinguish themselves from the civilian population. According to Värk, it is division based on a practical basis. The most problematic situation arises with the unlawful combatants in the battlefield.136

Historically, a first provision worth mentioning is the Martens clause. It can be found in the preamble of the Hague Regulations of 1899 and 1907 respecting the laws and customs of war on land.137 Originally, it was intended to provide residual humanitarian rules for the protection of the population of occupied territories. Since then, the Martens clause is supposed to reach all parts of IHL. It was, for instance, used during the Nuremberg trials as authority for the proposition that deportation of inhabitants of occupied territory was prohibited.138 At present, the ICJ noted that it is still in force.139 A modern version of the Martens clause, which states basically the same as the original, can be found in art. 1 of the First Additional Protocol: “In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”140 It guarantees that customary international law will still apply for states that are no longer bound by the Geneva Conventions and Protocols. In addition, it supports the argument that what is not prohibited by treaties may not be necessarily lawful. Furthermore, it enforces a trend towards basing the existence of customary international law on opinio juris, the principles of humanity and public conscience, rather than actual battlefield practice. It also enforces the homocentric focus of IHL and reduces the traditional interstate emphasis of the laws of war. The clause has even moved from the preamble to the substantive text. Although the principles of humanity and the dictates of public conscience are not defined, they emphasis the fact that even during times of war nobody acts in a legal vacuum.141

Since they are not entitled to protection under the Third Geneva Convention, will they receive protection under the Fourth Geneva Convention? In normal circumstances, if they are not protected

134 Art. 5, G.C. III; art. 45 A.P. I. 135 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 136 VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 137 Hague Convention respecting the laws and customs of war on land. 138 MERON, T., “The Martens clause, principles of humanity and dictates of public conscience”, The American Journal of International Law 2000, 78-89. 139 ICJ, The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 256. 140 Art. 1.2, A.P. I. 141 MERON, T., “The Martens clause, principles of humanity and dictates of public conscience”, The American Journal of International Law 2000, 78-89; VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt- uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010).

by the former, they receive protection from the latter. It is quite surprising that international humanitarian law protects unlawful combatants. When people take part in hostilities without permission, they are acting outside the laws of war on purpose. The easiest solution would be to exclude them from any protection provided by international law. However, it is not advisable to leave them at the mercy of the detaining power. As stated above, every person has the fundamental right to recognition before the law.142

According to the Fourth Geneva Convention, every person who finds himself in the hands of a party to the conflict or the occupying power would receive protection. Protection is not obligatory when the person is a national of that state.143 This exception is the result of a recognised principle of IHL, namely that IHL does not interfere in a state’s relations with its own nationals.144 Nationals of non- bound states are also excluded but this is rather theoretical because the Conventions are practically universally ratified. Furthermore, nationals of a neutral state, if they are in the territory of a belligerent state, and nationals of a co-belligerent state with normal diplomatic representation are either protected. The Convention is also not applicable to persons who receive protection from the other three Geneva Conventions, such as lawful combatants.145 The definition of the protected persons in the Fourth Geneva Convention seems all-embracing, but as we see, it does not cover all unlawful belligerents. The exclusion of persons who have the nationality of the state that captures them must be nuanced since the ICTY has developed a doctrine whereby individuals who have the nationality of their captors may still be qualified as protected persons in situations where they may be assimilated with an enemy state.146 According to some authors, unlawful participation in hostilities cannot be seen as an excuse to deny the application of the Fourth Geneva Convention. They have several arguments to validate their statement. One argument can be found in article 5 of the Convention. It allows some derogations to the protection. The provision uses the term protected persons with regard to people who are engaged in the hostilities without the right to do so, such as spies and saboteurs. These are persons who are known as unlawful combatants.147 Another argument can be found in art. 45.3 A.P. I., which reads as follows:

“Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.”148

It recognizes that the Fourth Geneva Convention is applicable to some categories of unlawful combatants because otherwise the formulation “who does not benefit from more favourable treatment in accordance with the Fourth Geneva Convention” would be meaningless. The second part of the

142 VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 143 Art. 4, G.C. IV. 144 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 145 Art. 4, G.C. IV; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 146 ICTY, Prosecutor vs. Delalic et. al., Judgment of the Trial Chamber, case no. IT-96-21-T (16 November 1998); VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 147 Art. 5, G.C. IV; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 148 Art. 45.3, A.P. I.

provision acknowledges that unlawful combatants in occupied territory are protected by the Fourth Geneva Convention. Otherwise there would be no reason to restrict the scope to of art. 5. Support for this interpretation can be found in several military manuals where numerous unlawful combatants are granted the protection of the Fourth Geneva Convention. One could strongly claim that unlawful combatants fall under the scope of this Convention if they fulfil the nationality criteria.149

Nevertheless, the protection they are granted by the Fourth Geneva Convention depends on in which hands the unlawful combatants find themselves. In the first place, there are provisions that are common to the territories of the parties to the conflict and to occupied territories. They contain the right on humane treatment, special protection for women, the principle of non-discrimination, the prohibition to use protected persons as human shields, the prohibition of coercion... Secondly, there are provisions on the treatment of aliens in the territory of a party to the conflict, such as the right to leave the territory, the right to medical attention... A third section contains provisions on protected persons in occupied territory and a last section deals with the treatment on detainees.150 However, the protection is not absolute since derogation is possible. When in the territory of a party to the conflict, a protected person is suspected or engaged in activities hostile to the security of the state, he shall not be granted the protection of the Convention. The right of communication of spies and saboteurs in occupied territory who are suspected of activities hostile to the security of the occupying state can be suspended if it is necessary for military security.151 Both activities hostile to the security of a state and sabotage refer to direct participation without having the right to do so. When a person is taking part in the hostilities without fulfilling the criteria for lawful combatancy, he is considered to be an unlawful combatant. Nonetheless, even for unlawful combatants there are two non-derogable protections. Firstly, the right to humane treatment is absolute. Torture and ill-treatment are, for instance, prohibited. In the second place, no derogation is possible with regard to a fair trial.152 In occupied territory, fair trial is guaranteed by art. 64 to 76. Regarding enemy territory, there are no special provisions which ensure fair and regular trial. Therefore, a solution can be found in common art. 3 to the Geneva Conventions. As customary international law, it constitutes the minimum guarantees in international and non-international armed conflicts.153 It requires at least: “A regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”154 But the general problem with activities hostile to the security of a state and sabotage is that these terms are not well defined. It is very difficult to stipulate what falls under their scope and this can lead to abuses by states.155

ICTY case law supports the view that a person is either protected by the Fourth Geneva Convention or the Third Geneva Convention. It stated in the Delalic case that there is no gap between the two. When one is not protected by the Third Convention, one will receive protection by the Fourth Convention, but only when the nationality criteria are met. The ICTY said that their judgment was a satisfactory

149 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 150 G.C. IV. 151 Art. 5, G.C. IV. 152 Art. 5, G.C. IV; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 153 VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 154 Common art. 3, G.C. 155 VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198.

solution from a humanitarian point of view.156 One of the purposes of international humanitarian law is to provide the widest possible protection to persons involved in armed conflicts. The exclusion of certain persons from the scope of international humanitarian law would not contribute to its objectives and would lead to abuses.157

The protection for unlawful combatants under the Fourth Geneva Convention depends on whether they fulfil the nationality criteria which are written down in art. 4. Persons who do not match the criteria must rely on other rules of international law. The minimum standard of protection to all persons in international armed conflicts in the hands of a party to the conflict can be found in art. 75 of Additional Protocol I.158 For persons who are covered by G.C. IV, art. 75 A.P. I extends their protection by defining the minimum guarantees.159 The scope of application is the following:

“In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.”160

In order to benefit from the protection, a person does not have to meet any nationality criterion. Only three conditions need to be fulfilled: a person must be in the power of a party to the conflict, he must be affected by an armed conflict or an occupation and he may not benefit from a more favourable treatment under the Geneva Conventions or Additional Protocol I.161 Art. 75 A.P. I delineates the minimum standard of protection for persons who fall outside the scope of the Geneva Conventions. It is, for instance, applicable to persons whose rights are derogated in the case of art. 5 of the Fourth Geneva Convention. It gives them supplementary protection.162 One of the most important elements is that all persons have rather extensive judicial guarantees. All sentences and executions of penalties have to be pronounced by an impartial and regularly constituted court that respects the generally recognised principles of regular judicial procedure. This judicial guarantee is especially important for unlawful combatants in enemy territory. As mentioned above, there are no specific provisions which ensure a fair trial with regard to those unlawful combatants. They had to rely on common art. 3 to the

156 ICTY, Prosecutor vs. Delalic et. al., Judgment of the Trial Chamber, case no. IT-96-21-T (16 November 1998). 157 VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 158 Art. 75, A.P. I; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 159 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 160 Art. 75.1, A.P. I. 161 Art. 75.1, A.P. I; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 162 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74.

Geneva Conventions. Even for unlawful combatants in occupied territory, art. 75 A.P. I provides an enhancement of their judicial rights. They are, for instance, granted the presumption of innocence.163

Art. 45 of Additional Protocol I even explicitly mentions that art. 75 A.P. I is applicable to unlawful combatants. When taking these two articles together, the protection for unlawful combatants is enhanced. It protects unlawful combatants who do not receive protection from the Fourth Geneva Convention because they do not match the nationality criteria and who fall in enemy hands in the battle zone. In the past, they were in these circumstances only protected by common article 3 which is recognized as customary international law. The unlawful combatants who are protected by the Fourth Geneva Convention receive a complementary protection because art. 75 A.P. I defines the minimum guarantees which cannot be derogated. When they fall in enemy hands on enemy territory, they receive various judicial guarantees such as the presumption of innocence, nullum crimen sine lege, nulla poena sine lege... It also increases the protection laid down in the Fourth Geneva Convention in relation to the treatment, arrest and detention of captured persons. Unlawful combatants who fall in enemy hands in occupied territory receive similar judicial guarantees and an increased protection. Article 45 of Additional Protocol I even restricts the possibility for derogations under art. 5 G.C. IV.164 According to Bothe, Partsch and Solf, it neutralizes the derogations allowed by art. 5 G.C. IV in occupied territory, except for persons held as spies. It applies art. 75 A.P. I to members of armed forces who are deprived of their prisoner of war status, nationals of states who are not bound by the Fourth Convention, nationals of the detaining state, nationals of neutral and co-belligerent states with which the detaining state maintains normal diplomatic relations and civilians who take part in the hostilities in the territory of a party to the conflict or in any other area other than occupied territory.165 In other words, art. 75 A.P. I tries to set out the minimum guarantees for persons who fall outside the scope of the Geneva Conventions. When a person is not granted prisoner of war status, he is –in principle- a civilian. Nonetheless, the opponents can have the same nationality which means that the Fourth Geneva Convention would not apply. In addition, the concept of alien occupation becomes rather vague in guerrilla warfare as there is no fixed legal border to demarcate the areas held by the parties. As a result, it is possible that difficulties could arise with regard to the application of the Fourth Geneva Convention. Art. 45 A.P. I could help to overcome these difficulties. The most remarkable is that art. 75 A.P. I has become customary international law. Most people, who do not recognize the applicability of the Fourth Geneva Convention to unlawful combatants, do the opposite with regard to the applicability of art. 75 A.P. I.166 Virtually all countries in the world are a party to the Geneva Conventions, but this is not the case with Additional Protocol I. Where the Geneva Conventions have 192 parties, A.P. I only has 163 parties. Some major actors in armed conflicts did not ratify the Protocol, such as the United States and Israel. But the Protocol is binding upon every

163 Art. 75, A.P. I; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 164 Art. 45 and 75, A.P. I; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 165 Art. 45 and 75, A.P. I; BOTHE, M., PARTSCH, K.J. and SOLF, W.A., New rules for victims of armed conflicts: commentary on the two 1977 Protocols additional to the Geneva Conventions of 1949, Martinus Nijhoff Publishers, The Hague, 1982, 746 p. 166 Art. 45 and 75, A.P. I; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74.

state regardless of whether it is a party or not.167 Although the question could be raised if A.P. I is customary law in its entirety, there is no doubt about the fact that art. 75 has reached this status.168

The Fourth Geneva Convention and art. 75 A.P. I provide rather detailed guarantees for unlawful combatants. A third instrument available to unlawful combatants is common art. 3 to the Geneva Conventions.169 It has been regarded as a sort of mini-convention because it gives a short summary of the judicial guarantees. The provision has been designed to regulate internal armed conflicts, but it turned out to be relevant for all armed conflicts and all people acting in them. Noteworthy is the fact that is has become customary international law.170

Whereas lawful combatants cannot be prosecuted for their mere participation in the hostilities, unlawful combatants can be prosecuted for their participation. It is not necessary that they committed war crimes. Nevertheless, a preliminary condition is that national legislation must provide for such prosecution.171 However, war by its very nature consists of a series of acts of violence like homicide. When a soldier shoots an enemy, this is normally a premeditated homicide that fits the definition of murder in practically all national penal codes. The most acts of violence are penalized by criminal codes all over the world. It is important to note that unlawful combatancy and committing war crimes is not the same. War criminals are brought to trial for serious violations of international law. Whereas with unlawful combatancy, the immunity of the combatant is simply taken away and they can be brought to trial for any offence punishable by the domestic law.172 Nevertheless, unlawful combatants receive some safeguards during a possible prosecution. If they fulfil the nationality criteria, they are entitled to fair trial guarantees provided by the Fourth Geneva Convention. For instance, sentences can only be pronounced by competent courts.173 Even if derogation of art. 5 G.C. IV is used, an unlawful combatant shall not be deprived of the rights to fair and regular trial.174 If the nationality criteria are not fulfilled, they can always rely on art. 75 A.P. I, which reflects international customary law.175 Common art. 3 of the Geneva Conventions is also regarded as international customary law in both international and internal armed conflicts.176 Dinstein even claims that they may only be put on trial for acts committed during the mission that ended up in their capture and that they cannot be prosecuted for acts committed during prior missions. A similar restriction can be found in art. 44 of A.P. I. A combatant, who does not carry his arms openly if he cannot distinguish himself from

167 VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 168 HONIGSBERG, P.J., “Chasing enemy combatants and circumventing international law: a license for sanctioned abuse”, UCLA Journal of International Law and Foreign Affairs 2007, 4-95. 169 Common art. 3, G.C. 170 ICJ, Military and Paramilitary Activities in and against Nicaragua (the Republic of Nicaragua vs. the United States of America), Judgment, ICJ Reports 1986, 14; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 171 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 172 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p. 173 Art. 71, G.C. IV; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 174 Art. 5, G.C. IV; DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p. 175 Art. 75, A.P. I; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 176 Common art. 3, G.C.; DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p.

civilians and is not engaged in an attack or in a military operation prior to an attack, shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities.177

Civilians enjoy protection against dangers arising from military operations. As mentioned above, they may not be the target of attacks. Only during the time that they take part in the hostilities, civilians become military targets. Unlawful combatants are also lawful targets since they participate in military clashes. For the conduct of hostilities, a person is either a civilian or a combatant. There is no grey area for this purpose.178

There are claims that unlawful combatants who fought on the actual front line cannot invoke the protection of the Fourth Geneva Convention because it does not contain special provisions applicable in the area of military operations. Nevertheless, the general protection of the Convention still applies. Therefore, persons captured on the battlefield do not find themselves in an uncertain position. However, there are different protections granted to aliens in the territory of an enemy party to the conflict and persons in occupied territory in the hands of an adverse party. This led to claims that unlawful combatants only receive protection from the specific provisions of the Convention if they were operating in occupied or enemy territory at the time of their capture. Nonetheless, these claims are not flawless. There is no buffer zone between the territories of adversarial parties. If one advances, the territory of the other becomes occupied. If unlawful combatants cross the front line, they are either in occupied or enemy territory, in which case they receive protection from the Convention. According to the commentary to art. 6 G.C. IV, there is also no time gap between an invasion and the start of a stable regime of occupation. They seamless connect to each other. The captured unlawful combatants will eventually be removed from the battlefield and will be taken to occupied or enemy territory. The logical consequence would be that they are to be given the protection of the law applicable to the place where they are held.179

3.1.2. Unlawful combatants in non-international armed conflicts Lawful combatancy and prisoner of war status are the direct result from the combatant’s privilege. This privilege is by international law limited to international armed conflicts, falling under common art. 2 of the Geneva Conventions, and struggles for self-determination, falling under art. 1 A.P. I. In internal armed conflicts, such as civil wars, the parties do not have to grant each other captives prisoner of war status since they do not have the combatant’s privilege. Governments facing armed rebellion are thus free to try captured rebels for treason and all their other violent acts. Nevertheless, governments can grant rebels in internal armed conflicts prisoner of war or equivalent status. This has happened several times in history like during the American Civil War or during the attempted secession of Biafra from Nigeria in the period 1967-1970.180 With regard to internal armed conflicts, the Martens clause can also be mentioned. It is restated in the preamble of Additional Protocol II and

177 Art. 44, A.P. I; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 178 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 179 ICRC, Commentary to art. 6, G.C. IV, § 1, http://www.icrc.org/ihl.nsf/COM/380-600009?OpenDocument (consultation 3 Mai 2010); VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 180 GOLDMAN, R.K. and TITTEMORE, B.D., “Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law”, ASIL Task Force Papers 2002, 1- 58.

not in the substantive text as is the case in A.P. I. It guarantees the application of international customary law in all cases and rules out the assumption that what is not forbidden by treaty law is tolerated.181 More enforceable rules can be found in common art. 3 to the Geneva Conventions. According to the ICJ, it constitutes the minimum provisions which must be safeguarded in both international and non-international armed conflicts. It is applicable to all persons –therefore including unlawful combatants- involved in armed conflicts. For instance, no one can be sentenced then by a regular constituted court affording all the judicial guarantees.182 Unlawful combatants can be detained and punished, but first they must be prosecuted within the law. This is only possible with a trial which upholds the ordinary concepts of justice. It has to be noted that the rights accorded by common art. 3 are more or less the same as those covered by the Fourth Geneva Convention.183

3.2. Al Qaeda and the Taliban Since the concept of unlawful combatants gained more publicity after the attacks on the World Trade Center and the following war on terrorism which led to the invasions in Afghanistan and Iraq, it would be useful to examine the status of the Taliban and Al Qaeda members. It is their treatment by the Allied forces that catalyzed the discussion on unlawful combatants.

3.2.1. Nature of the conflict Since there is a difference between the regimes for international and non-international armed conflicts, it is important to determine the nature of the conflict in Afghanistan. On 7 October 2001 the United States of America and some Allies invaded Afghanistan as response to the attacks on 11 September 2001.184 Al Qaeda claimed the responsibility for these attacks. The leaders and most of the members and facilities of Al Qaeda were located in Afghanistan. Nevertheless, the Taliban, in control of all but a small part of the country, refused to hand them over and continued to give them sanctuary. Thus, the U.S. launched an invasion.185 The history of the Taliban goes back to 1988. The Soviet Union left the country with a leadership vacuum after ten years of occupation. As a result, a civil war erupted between the several factions that fought in the conflict against the Soviets. The country was divided in several regions led by military commanders or tribal leaders. Eventually, president Najibullah was appointed but he resigned in 1992 in order to form a government with a broader base. After Kabul was captured by a coalition of mujahedin, Rabbani became interim president. Although the country had several presidents, Afghanistan remained fractured and factionalized. In 1994, a new group joined the struggle for power, namely the Taliban. After a few years of fighting, they conquered Kabul in 1996 and established their rule over the country. However, they got involved in a civil war with the

181 A.P. II; MERON, T., “The Martens clause, principles of humanity and dictates of public conscience”, The American Journal of International Law 2000, 78-89. 182 Common art. 3, G.C.; ICJ, Military and Paramilitary Activities in and against Nicaragua (the Republic of Nicaragua vs. the United States of America), Judgment, ICJ Reports 1986, 14; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 183 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 184 CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 185 ALDRICH, G.H., “The Taliban, Al Qaeda and the determination of illegal combatants”, The American Journal of International Law 2002, 891-898.

Northern Alliance, who controlled the northern part of the country. When the U.S. forces attacked the country, the Taliban were not widely recognized as the official government. Only Pakistan, Saudi- Arabia and the United Arab Emirates recognized the Islamic Emirate of Afghanistan, as the Taliban renamed the country. However, one could strongly claim that they were the de facto government since they controlled more than eighty percent of the national territory and they maintained a sufficient degree of stability. The refusal by many states to recognize the Taliban was not the result of doubt over their effective control, it was one of the many protests against the regime’s repressive behaviour.186 Nevertheless, for an armed conflict to exist, it is not obligatory that states have formally recognized each other. The non-recognition by the United States and the majority of the world, did not change the status of the armed conflict. States would otherwise escape their obligations under IHL by declaring that the other party is not a legitimate government.187 The fact that sanctions were imposed on Afghanistan by the UN Security Council also in no way derogated the Taliban from its status of de facto government since sanctions are a legitimate instrument to bring a disobedient state into conformity with international norms. However, they did not control the whole country since the northern part of Afghanistan was controlled by the Northern Alliance. A fierce battle was fought between the Taliban and the Northern Alliance.188 The United States supported the Northern Alliance in their campaign against the Taliban, which internationalized the conflict. Their intervention led to the realization of the conditions in common art. 2 of the Geneva Conventions, the article about the existence of international armed conflicts. Both countries are parties to the Conventions. Moreover, customary international law regarding international armed conflicts also became applicable.189 It is possible to state that there was an international armed conflict on the basis of self-defence. Al Qaeda was given sanctuary by the Taliban and the United States simply reacted in self-defence and invaded Afghanistan. However, it was Al Qaeda that was responsible for the attacks and this organisation is a non-state actor. A solution can be found in the concept of state responsibility for state supported terrorism. This responsibility depends on the involvement the state had with the non-state actor. Whether the U.S. acted legally in self-defence or not is irrelevant because the laws of war apply regardless of the reasons for going to war. It has to be noted that the theory of state responsibility for state supported terrorism is rather controversial.190 In essence, it was a hybrid civil war. Since the Conventions are silent about these conflicts, many scholars follow a dual approach. Between the U.S. forces and the Taliban, international armed conflict rules were applicable. The relations between the Taliban and the Northern Alliance remained non-international of character. It is arguable that the international armed conflict ended when the Taliban lost their de facto government status by abandoning Kabul. It certainly ended when an interim government, led by Hamid Karzai, was installed. The ongoing hostilities became non-international in nature, despite the fact that international

186 AZUBUIKE, L., “Status of Taliban and Al Qaeda soldiers: another viewpoint”, Connecticut Journal of International Law 2003, 1-25. 187 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 188 AZUBUIKE, L., “Status of Taliban and Al Qaeda soldiers: another viewpoint”, Connecticut Journal of International Law 2003, 1-25. 189 GOLDMAN, R.K. and TITTEMORE, B.D., “Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law”, ASIL Task Force Papers 2002, 1- 58. 190 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010).

forces were fighting alongside the Afghani government forces.191 This happened on 22 June 2002.192 An UN-mandated international force, the International Security Assistance Force, was created to assist the new Afghan government. In 2003, the leadership of the ISAF was handed over to the NATO. Their mandate was initially limited to Kabul and surrounding areas. Nowadays, it is extended to the whole of Afghanistan. Their mission is to reduce the capability of the Taliban, support the growth of the Afghan National Security Force and facilitate improvements in governance and socio-economic development. Despite the presence of the ISAF, the conflict remains non-international in nature.193

The Soviet invasion of Afghanistan was the birth of Al Qaeda. Their objective is to purify the Islamic countries from Western influences and to replace their governments by fundamentalist Islamic regimes. Osama bin Laden founded this terrorist organisation in 1988 and they helped the Afghan people during the Soviet occupation. After the withdrawal of the Soviet Union, Al Qaeda was involved in a series of international terrorist acts. They were mainly based in Afghanistan and the Taliban refused the extradition of bin Laden and others when it was demanded by the UN and many states. Even after the attacks on 11 September 2001, they stayed steadfast. These attacks are punishable under both domestic and international law.194 The conflict between the U.S. and Al Qaeda is more difficult to translate into the sphere of international law since Al Qaeda is merely a terrorist organisation and not a state actor. In addition, the conflict was not limited to Afghanistan. Due to the changing nature of warfare, suggestions could be made that IHL does not only apply to states but also to non-state actors if the latter is a large, powerful and organised independent group participating in the hostilities. In this way, a non-state actor could become a party to the conflict. However, this suggestion is highly controversial.195 Another theory is the one that states that the Taliban and Al Qaeda were so close that they were interwoven. At a certain point there was no clear understanding who ran the Afghani government; it was not clear who controlled the other. However, this theory is also the subject of discussion.196

3.2.2. Al Qaeda In the beginning of the war on terrorism, the United States did not issue any statement on the status of captured persons.197 Eventually, on 7 February 2002 the president of the United States declared that Al

191 GOLDMAN, R.K. and TITTEMORE, B.D., “Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law”, ASIL Task Force Papers 2002, 1- 58. 192 CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 193 DUCHEINE, P.A.L., “Rechtsregimes tijdens militaire operaties”, Ars Aequi 2009, 490-497; X., “NATO’s role in Afghanistan”, http://www.nato.int/cps/en/natolive/topics_8189.htm (consultation 16 April 2010). 194 AZUBUIKE, L., “Status of Taliban and Al Qaeda soldiers: another viewpoint”, Connecticut Journal of International Law 2003, 1-25. 195 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 196 AZUBUIKE, L., “Status of Taliban and Al Qaeda soldiers: another viewpoint”, Connecticut Journal of International Law 2003, 1-25. 197 GOLDMAN, R.K. and TITTEMORE, B.D., “Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law”, ASIL Task Force Papers 2002, 1- 58.

Qaeda fighters would be treated as unlawful combatants.198 The decision on Al Qaeda was not difficult to take according to the U.S. government. They were not entitled to prisoner of war status because Al Qaeda is an international terrorist group that is not a party to the Conventions.199

There is little doubt that Al Qaeda members in general are unlawful combatants. They do not operate under a responsible command structure, do not wear uniforms, do not carry arms openly and do not conduct their operations in accordance with the laws and customs of war. The requirement of operating under a responsible command structure requires a regular, military-style chain of command with officers responsible for their orders. Al Qaeda is more or less a criminal conspiracy or terrorist organization.200 Moreover, there is a cell structure that contradicts with the notion of chain of command. In addition, Al Qaeda members do not wear a fixed distinctive sign that distinguishes them from the civilian population. As a terrorist organisation they want to blend in with the civilians. Furthermore, in their attempt to blend into the civilian population, they do not carry their arms openly. Finally, they attack non-military targets and their operations are not in accordance with the laws and customs of war.201 Al Qaeda cannot participate in the hostilities without the authorisation of a state, which they have not received at this point. The 2001 attacks were no more than criminal acts.202 They wore civilian clothing, hijacked civilian airplanes and targeted a clearly non-military objective, namely the World Trade Center.203 The conflict with Al Qaeda is also not limited to the territory of a state. It is composed of people of different nationalities and their components are spread out over several countries. It does in no way resemble a state and does not have international legal personality. Without legal personality they cannot be a party to the Geneva Conventions or any other international agreement.204 Al Qaeda is no state, has no comparable authority and since stateless forces are not controlled by a sovereign country, they are not allowed to participate in the hostilities.205

Al Qaeda members who were captured during the war in Afghanistan are in a different position. Their situation is more complicated. They were captured in an international armed conflict and it is open for discussion that some of them gained legitimacy via state authorisation by the Taliban, acting as the de facto government of Afghanistan. In fact, some Al Qaeda components formed a part of the Taliban forces during the hostilities. Consequently, they could gain combatant status as members of militias or volunteer corpses forming part of the regular armed forces, according to art. 4 G.C. III, if the Taliban

198 WHITE HOUSE PRESS OFFICE, “Fact sheet”, 7 February 2002, http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf (consultation 28 April 2010). 199 SHUMATE, B., “New rules for a new war: the applicability of the Geneva Conventions to Al Qaeda and Taliban detainees captured in Afghanistan”, New York International Law Review 2005, 1-86. 200 CASEY, A.L., RIVKIN JR., D.B. and BARTRAM, D.R., “Unlawful belligerency and its implications under international law, Federalist Society White Paper 2003, 1-22. 201 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 202 CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 203 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p. 204 ALDRICH, G.H., “The Taliban, Al Qaeda and the determination of illegal combatants”, The American Journal of International Law 2002, 891-898. 205 BIALKE, J.P., “Al Qaeda and Taliban unlawful combatant detainees, unlawful belligerency and the international laws of armed conflict”, Air Force Law Review 2004, 1-64.

fit combatant status. The presumption that the Taliban are lawful combatants is highly controversial.206 There are claims that the Geneva Conventions apply to the conflict since they apply to all persons caught in the conflict.207 Even if proven that they belonged or formed part of the Taliban forces, they still have to meet the combatancy criteria. As mentioned above, they fail to meet these conditions.208 Some authors simply deny them prisoner of war status because they actually belong to a terrorist organization that does not respect the laws of war. Other Al Qaeda members fought the U.S. forces independently, but they cannot be qualified as irregular armed forces according to art. 4 G.C. III. As mentioned above, part of the combatancy conditions has to be fulfilled by the group. If not, all members of the group lose combatant status. However, the general practice of the Al Qaeda fighters was to blend in with the civilian population and to hide their weapons. One of the general principles of international humanitarian law is the distinction line between combatants and civilians. For the troops who fought independently, there is no doubt that they are to be categorized as unlawful combatants.209 Group exclusion of combatant status is justified in the case of Al Qaeda. Compliance with international humanitarian law is a constitutive condition for combatant status. Since Al Qaeda is a terrorist organisation engaging in campaigns targeting innocent civilians and not respecting the principle of distinction, group exclusion can strongly be defended.210 A fundamental requirement for lawful combatancy is that combatants in an international armed conflict must act on behalf of and be subordinate to a sovereign state that subjects itself to IHL. There is no evidence that they ever declared that they are subject to international law or the Taliban.211

Being regarded as unlawful combatant does not mean that a person is not entitled to any protection under international humanitarian law. The Al Qaeda members who were captured during the international conflict in Afghanistan will enjoy the protection of G.C. IV if they fulfil the nationality criteria. The U.S. forces transferred some of the captured Al Qaeda members to Guantanamo, a naval base on Cuba leased by the United States. According to art. 49 G.C. IV, protected persons may not be transferred from occupied territory to the territory of the occupying power. Despite the prohibition, the U.S. breached this provision by the transportations. Another rule that was breached is art. 76 G.C. IV. It states that protected persons accused of offences shall be held prisoner in the occupied country and shall serve their sentences there. By transferring the captured Al Qaeda members in Afghanistan, they did not respect this provision. If the captured persons do not meet the nationality criteria, they could

206 Art. 4A.1, G.C. III; CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009); MIRELES, M.S. and RAVAGAN, S., “The status of detainees from Iraq and Afghanistan conflicts”, Utah Law Review 2005, 1-51. 207 HONIGSBERG, P.J., “Chasing enemy combatants and circumventing international law: a license for sanctioned abuse”, UCLA Journal of International Law and Foreign Affairs 2007, 4-95. 208 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 209 Art. 4A.2, G.C. IV; CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 210 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 211 BIALKE, J.P., “Al Qaeda and Taliban unlawful combatant detainees, unlawful belligerency and the international laws of armed conflict”, Air Force Law Review 2004, 1-64.

always rely on art. 75 A.P. I. The argument that art. 75 A.P. I does not apply in cases involving the United States is not correct.212 The provision is nowadays regarded as customary international law. It is irrelevant whether the U.S. is a party to this Convention or not.213 However, if the Fourth Geneva Convention or art. 75 A.P. I applies to the captured Al Qaeda members, they still may be lawfully prosecuted and punished under national law for taking part in the hostilities and for other crimes, such as murder. They remain unlawful combatants who are not entitled to take part in the hostilities.214 In the third place, they can invoke common art. 3 to Geneva Conventions, the minimum guarantees in both international and internal armed conflicts . As for the Al Qaeda members who were not captured during the conflict in Afghanistan, they also receive the protection of common art. 3. The Fourth Geneva Convention and Additional Protocol I do not apply to their situation since they were not captured in an international armed conflict.215

3.2.3. Taliban For almost four months the U.S. government was silent on the nature of the conflict in Afghanistan, the applicable law and the status of captured persons. Finally, on 7 February 2002 former president Bush issued a statement that Taliban fighters would be considered as unlawful combatants. The United States did not recognize the Taliban as the de facto government but they did not deny that the Taliban members were covered by the Third Geneva Convention. The application of the G.C. III was justified because Afghanistan ratified the treaty. According to this statement, they implicitly admitted that they were involved in an international armed conflict since G.C. III applies to conflicts that are international in nature. Nevertheless, they were denied prisoner of war status because they would not have met the conditions in art. 4A.2 G.C. III.216

3.2.3.1. Meeting the criteria for lawful combatancy Whether the Taliban meet the criteria for attaining lawful combatant status is a complicated question. Although they controlled most of the territory when the U.S. invaded Afghanistan and a few countries recognized them as the legitimate government, questions could be raised whether they could be seen as lawful combatants. Afghanistan is a signatory to the Geneva Conventions and the Taliban exercised de facto governance over the country. As the de facto government, they bore the responsibility for the international obligations of Afghanistan under IHL and the conduct of the Taliban’s armed forces. The four conditions for lawful combatancy have to be cumulatively attained. The failure to meet one of the conditions leads to the denial of combatant status. As for the Taliban forces, the first requirement of having a responsible command structure may not be fulfilled. At the very least, individuals must be

212 Art. 49 and 76, G.C. IV; art. 75, A.P. I; CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 213 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 214 ALDRICH, G.H., “The Taliban, Al Qaeda and the determination of illegal combatants”, The American Journal of International Law 2002, 891-898. 215 Common art. 3, G.C.;VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 216 WHITE HOUSE PRESS OFFICE, “Fact sheet”, 7 February 2002, http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf (consultation 28 April 2010); GOLDMAN, R.K. and TITTEMORE, B.D., “Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law”, ASIL Task Force Papers 2002, 1-58.

subject to a person who is responsible for his subordinates. In case of the Taliban, it is not exactly clear if they have a responsible command structure. According to some scholars, there is no clear military structure with a hierarchy of commanders. Those scholars claim that their command structure is ambiguous. Furthermore, the tribal and warlord alliances constantly changed.217 As mentioned above, this condition is one of the safeguards against actions which are not in accordance with the laws of war. Commanders must have clear obligations to encourage respect for the laws of war with regard to their lower officers and soldiers, investigate and punish violations and report to their own superiors. A vague command structure is not capable of fulfilling these obligations. Unlike these regulations, the Taliban forces are run by a constantly changing cast of local and regional commanders and unclear division lines between civilian and military authorities above them.218 The Taliban supreme leader stated that the laws of war are not more than an expression of a false Judeo-Christian Western ideology. They do not hold their members accountable for violations of IHL.219 Moreover, the Taliban militia function more or less as different armed groups that fight for their own local or tribal interests and many Afghan forces fight under local warlords. Therefore, suggestions were made that they do not have the necessary military discipline and decision-making structures. Notwithstanding the fact that there is no clear military structure, there is a central command that gives orders to unit commanders. These unit commanders are responsible for the recruitment and the paying of the soldiers. As mentioned earlier, the command structure does not have to be a traditional Western one. Since warlords and tribal leaders had command over Taliban units and there is no chaos within the Taliban, they could satisfy this criterion.220

There are also some remarks on the second condition, the one of wearing a uniform. It is the uniform that allows opposing forces to identify each other and to distinguish themselves from civilians. In essence, the wearing of a uniform means that they have to wear a fixed distinctive sign recognizable at a distance. It is not necessary that they wear a traditional uniform. A distinctive sign such as helmet suffices as long as it is recognizable at a distance by the naked eye. Some reports say that is doubtful that Taliban forces meet this condition in a proper manner.221 They wear their daily clothes and as a result, they are indistinguishable from civilians. Some of them wear black turbans. Nonetheless, this is more a coincidence than a habit. There is no evidence that the turban is systematically worn as an identification of an armed group.222 However, during the invasion, the U.S. forces did not complain about any difficulties to distinguish the Taliban from civilians because some members of the Taliban forces wore these black turbans. This could distinguish them from civilians, although it is not ideal. However, it has to be noted that not all members of the Taliban forces wear them. Due to the

217 BIALKE, J.P., “Al Qaeda and Taliban unlawful combatant detainees, unlawful belligerency and the international laws of armed conflict”, Air Force Law Review 2004, 1-64. 218 CASEY, A.L., RIVKIN JR., D.B. and BARTRAM, D.R., “Unlawful belligerency and its implications under international law, Federalist Society White Paper 2003, 1-22. 219 BIALKE, J.P., “Al Qaeda and Taliban unlawful combatant detainees, unlawful belligerency and the international laws of armed conflict”, Air Force Law Review 2004, 1-64. 220 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 221 CASEY, A.L., RIVKIN JR., D.B. and BARTRAM, D.R., “Unlawful belligerency and its implications under international law, Federalist Society White Paper 2003, 1-22. 222 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010).

vagueness of IHL, the question how distinctive the fixed sign has to be, remains unanswered. A traditional uniform is not required; it is only the overall requirement of distinction between combatants and civilians that is important. The Taliban and the Northern Alliance had no problems in distinguishing each other during their operations since most of the Taliban wore the aforementioned Turban and the Northern Alliance scarves. As there is a sign that could distinguish the Taliban from the civilian population, it must be examined if each individual member wears that sign. It is not satisfactory to decide that the Taliban do not wear a uniform. If there is a collective sign that is commonly agreed to distinguish a certain armed group, the wearing of that sign is an individual condition. 223 Hence, there is a fixed distinctive sign according to the behaviour of the U.S. and other forces. Whether or not this sign is worn, should be examined individually for each member.224

In the third place, there is the requirement that combatants must carry their arms openly. It is also perceived to distinguish combatants from civilians and therefore not all weapons have to be carried visible, but the individual must be seen as openly in arms.225 There are reports that the Taliban forces do carry their arms openly but it does not help to distinguish them from the civilian population because many Afghans carry arms openly. The frequent carrying of weapons openly is an Afghan cultural norm. If the civilian population has the habit of carrying arms openly, the fulfilment of the purpose of the third requirement is impossible. However, therefore they should not be penalised. If a Taliban member can show that he is wearing a fixed distinctive sign and carries his arms openly, it should be enough to fulfil the distinction requirement although it is the habit of civilians to carry arms.226 Nonetheless, not all reports come to the same conclusion. There are reports that Taliban forces conceal their weapons and explosives inside civilian clothing. They also hide military equipment in civilian buildings to prevent the destruction of this equipment by the U.S. forces. Hence, there is no unanimity about the fact that they do carry their arms openly.227 The lawful combatant standards are lowered by art. 44.3 A.P. I. When owing to the nature of the hostilities a combatant cannot distinguish himself, he only has to carry his arms openly when planning or engaging in an attack.228 This nullifies the effect of the requirement of the fixed distinctive sign. Yet, there is no evidence that the nature of the hostilities in Afghanistan prevents the Taliban from adequately distinguishing themselves from the civilian population. During their conflict with the Northern alliance, the Taliban had ample time to choose a form of distinctive mark. They were the de facto government from 1996 to 2001 and were an experienced fighting force engaged in civil war with the Northern Alliance. However, they did not choose a distinctive mark. One could argue that their distinctive sign is the black turban, but not all members of the Taliban forces wear this turban. The strongest argument to deny the application of art.

223 CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS.doc (consultation 5 May 2009). 224 DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge University press, Cambridge, 2004, 275. 225 CASEY, A.L., RIVKIN JR., D.B. and BARTRAM, D.R., “Unlawful belligerency and its implications under international law, Federalist Society White Paper 2003, 1-22. 226 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 227 BIALKE, J.P., “Al Qaeda and Taliban unlawful combatant detainees, unlawful belligerency and the international laws of armed conflict”, Air Force Law Review 2004, 1-64. 228 Art. 44.3, A.P. I.

44.3 A.P. I is that both the United States and Afghanistan did not sign the Protocol. A solution could be found in international customary law but it has not yet attained this status. It is one of the most controversial provisions of A.P. I. It reduces the distinction between combatants and civilians. Hence, it endangers the protection of the civilian population by broadening the category of combatants to armed groups who do not wear a uniform.229

The greatest problem arises with regard to the fourth condition, the one of compliance with international humanitarian law.230 IHL restrains significantly what actions an armed force or an individual may take during armed conflicts. These constraints have the purpose to protect civilians and to minimize unnecessary destruction. All actions must follow the Geneva Conventions and other principles of IHL. Amongst others, it includes that only military objectives may be attacked, that the principle of proportionality must be respected with regard to collateral damage... there are also provisions on certain types of ammunition such as the prohibition to use chemical and biological weapons.231 The U.S. government asserted that by giving sanctuary and supporting Al Qaeda they failed to conduct their operations in accordance with international humanitarian law. This assessment was not correct. It is not because a state supports a terrorist organization, that the armed forces become unlawful combatants. The committing of war crimes by members of armed forces does not result in the deprivation of prisoner of war status of all combatants.232 Nevertheless, the Taliban fail to comply with this condition in another way and to be more precise in an institutional matter since they openly refuse to follow the provisions of international humanitarian law and follow an Islamic approach, based on their own interpretation of the Koran. According to reports, they do not even follow the most restrictive interpretation of the laws of war. For example, deliberate attacks on civilian targets are not an exception. If these actions are carried out by individuals, these persons can be prosecuted for war crimes. 233 Although some of them wear a fixed distinctive sign and carried their arms openly, they made little attempt to distinguish themselves from the civilian population. They try to blend in with the civilians by hiding in populated areas and mosques. There are also reports about other breaches of the laws of war, such as massacres of civilians and plunders of villages.234 When it is group policy to undertake these actions, the whole group can be denied combatant status.235 The United States excluded the Taliban on a group basis. In the case of Al Qaeda, a terrorist organization, it can be easily applied. Nevertheless, with the armed forces of a state, such as the Taliban, it is more difficult. In every armed conflict, there are violations of international humanitarian law. If whole armed forces

229 BIALKE, J.P., “Al Qaeda and Taliban unlawful combatant detainees, unlawful belligerency and the international laws of armed conflict”, Air Force Law Review 2004, 1 -64. 230 CASEY, A.L., RIVKIN JR., D.B. and BARTRAM, D.R., “Unlawful belligerency and its implications under international law, Federalist Society White Paper 2003, 1-22. 231 BIALKE, J.P., “Al Qaeda and Taliban unlawful combatant detainees, unlawful belligerency and the international laws of armed conflict”, Air Force Law Review 2004, 1-64. 232 ALDRICH, G.H., “The Taliban, Al Qaeda and the determination of illegal combatants”, The American Journal of International Law 2002, 891-898. 233 CASEY, A.L., RIVKIN JR., D.B. and BARTRAM, D.R., “Unlawful belligerency and its implications under international law, Federalist Society White Paper 2003, 1-22. 234 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 235 CASEY, A.L., RIVKIN JR., D.B. and BARTRAM, D.R., “Unlawful belligerency and its implications under international law, Federalist Society White Paper 2003, 1-22.

would not receive combatant status, then there would be no prisoners of war. But in the light of the fulfilment of the conditions for combatant status, group denial for Taliban members can be justified.236

3.2.3.2. Is meeting the lawful combatancy criteria necessary? An interesting remark is made by Aldrich. The conditions for combatant status apply, according to art. 4 of the Third Geneva Convention, only for militias and volunteer corpses that do not form part of the armed forces of a party to the conflict. Since the Taliban were in effective control of most parts of the country, they could be seen as the de facto government of Afghanistan. In that respect, one could argue that they were the armed forces of the country or at least a militia or volunteer corps forming part of the armed forces of a party to the conflict. Therefore, they would fall under the scope of art. 4A.1 G.C. III and would not have to fulfil the conditions of art. 4A.2 G.C. III. The United States obviously do not share this view. They believe that all armed forces are required to meet the conditions. However, there is no consensus about the fact that the conditions are not inherent to the armed forces of state.237 Another argument for granting Taliban warriors could be found in art. 4A.3 G.C. III. This provision states that members of regular armed forces professing allegiance to a government not recognized by the detaining power are granted prisoner of war status. The Taliban were the de facto government at the time of the invasion, but the U.S. did not recognize them. This situation encompasses the conditions of art. 4A.3 G.C. III.238 As the de facto government of Afghanistan, it can certainly be claimed that the Taliban soldiers were the armed forces of a party to the conflict. It is however more appropriate to classify them under art. 4A.3 G.C. III. The criteria for the application of this provision are less severe than art. 4A .1 G.C. III.239 Again, the same remark as stated above has to be made: no consensus can be found in the literature that armed forces of state should not meet the conditions for irregular forces. Support for this theory can be found in the Mohamed Ali case of 1968. The Privy Council stated that is was not enough to establish that a person belongs to the regular armed forces in order to receive prisoner of war status. According to the Council, they also have to observe the conditions for irregular forces.240

3.2.3.3. False arguments to deny the Taliban prisoner of war status Other arguments are raised to deny the Taliban combatant status. One of these arguments is that Afghanistan, under the rule of the Taliban, was a failed state with an illegitimate government. However, in order to determine whether the combatants were lawful or not, one needs to answer the question whether they met the conditions of the Geneva Conventions. If they met the criteria, their status would not be altered if the Taliban acted as an illegitimate government. It is irrelevant. During World War II, German soldiers were granted prisoner of war status by the Allied countries that believed that Hitler’s regime was illegitimate. On the other hand, lawful combatants do not

236 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 237 Art. 4A, G.C. III; ALDRICH, G.H., “The Taliban, Al Qaeda and the determination of illegal combatants”, The American Journal of International Law 2002, 891-898. 238 Art. 4A.3, G.C. III; DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p. 239 Art. 4A, G.C. III; VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 240 Bin Haji Mohamed Ali et al. vs. Public Prosecutor (1968), [1969] 1 A.C. 430; DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p.

automatically become unlawful belligerents if they act in a territory where there is no effective government. A second argument to qualify them as unlawful combatants is that the Taliban lost their initial lawful status when they came to the aid of the Al Qaeda members, who are unlawful combatants. A lawful combatant who joins a group of unlawful combatants becomes one himself if he does not respect the laws of war, does not carry his arms openly... Nonetheless, regular armed forces who tolerate and use unlawful combatants, do not become unlawful by doing this. These arguments can therefore not be used to support the vision of the United States.241

3.2.3.4. Art. 5 G.C. III The captured Taliban fighters should have been granted prisoner of war status until a competent tribunal has determined their status. This is provided by art. 5 of the Third Geneva Convention. The determination is needed when doubt arises over the status of the captives. According to the United States, no doubt has arisen and they simply qualified them as unlawful combatants.242 However, no court determined their status.243 It was the administration of the president that issued a declaration on the status of the Taliban members. The administration is part of the executive, not of the judicial apparatus.244 The president argued that the detainees’ status cannot be questioned because, as commander-in-chief, he is a competent authority.245 This discussion on their status took place because The Third Geneva Convention does not provide a definition of what a competent tribunal is. A military court similar to a court martial that tries soldiers for war crimes would be considered competent. A military tribunal that offers fewer rights than a military court would also be considered competent if it is legally constituted.246 There is also no good understanding of what is meant with “when doubt arises”. One could argue that all that is required for doubt to arise is the declaration by the detainee that he is allowed prisoner of war status.247 A small change in the status of the captives occurred with the Hamdi case.248 Yaser Hamdi was an American citizen who joined the Taliban in 2001 to fight the Northern Alliance. In the end of 2001 he was captured, transferred to Guantanamo Bay and later to a naval brig in the United States. Hamdi was held in complete isolation without access to a lawyer or his family. Eventually, his case was brought before the Supreme Court. The Court accepted the definition of an unlawful combatant as presented by the U.S. government. An unlawful combatant is: “An individual who is part of or supporting forces hostile to the United States or coalition partners engaged in an armed conflict against the United States.”. 249 The Court affirmed

241 CASEY, A.L., RIVKIN JR., D.B. and BARTRAM, D.R., “Unlawful belligerency and its implications under international law, Federalist Society White Paper 2003, 1-22. 242 Art. 5, G.C. III; WHITE HOUSE PRESS OFFICE, “Fact sheet”, 7 February 2002, http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf (consultation 28 April 2010). 243 ALDRICH, G.H., “The Taliban, Al Qaeda and the determination of illegal combatants”, The American Journal of International Law 2002, 891-898. 244 GOLDMAN, R.K. and TITTEMORE, B.D., “Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law”, ASIL Task Force Papers 2002, 1- 58. 245 SHUMATE, B., “New rules for a new war: the applicability of the Geneva Conventions to Al Qaeda and Taliban detainees captured in Afghanistan”, New York International Law Review 2005, 1-86. 246 HONIGSBERG, P.J., “Chasing enemy combatants and circumventing international law: a license for sanctioned abuse”, UCLA Journal of International Law and Foreign Affairs 2007, 4-95. 247 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 248 Hamdi vs. Rumsfeld, 542 U.S. 507 (2004). 249 Ibid.

that the government may hold persons as unlawful combatants for some time without access to counsel. Nonetheless, unlawful combatants have the right to challenge their status before an impartial judge. The U.S. Supreme Court got the chance to decide whether the detained persons were entitled to protection under the Geneva Conventions, but they did not answer the question. Instead, they stated that the president has the authority to declare that the enemy combatants are unlawful ones. Hence, there is no doubt about their status under the Geneva Conventions, despite the fact that art. 5 G.C. III requires a hearing to determine their status.250 As a result, the administration provided him with access to a lawyer and the government released him. After the decision in the Hamdi case, the U.S. set up military commissions to trial the captured persons, who were transferred to Guantanamo Bay. These military commissions consist of a three-member military panel and are called combatants status review tribunals. Nonetheless, these tribunals do not meet the requirements of a competent tribunal. They only have to determine whether a detainee is an enemy combatant as defined by the administration or not. The combatant status review tribunals do not consider whether a detainee should be granted prisoner of war status because it already has been determined by the administration.251 Another case involving an American citizen is Rumsfeld vs. Padilla.252 Unlike Hamdi, Jose Padilla was not captured in a war zone but in the United States. He was identified as supporting terrorists and as an unlawful combatant.253 He shared the same faith as Hamdi, namely being held in complete isolation from the outside world. The Supreme Court denied his appeal because of technical reasons. Later, the government transferred him to the criminal justice system as a common criminal defendant. Many scholars feared that until the Supreme Court ruled on the cases, the government could classify American citizens as unlawful combatants and could hold them for an indistinct period of time in isolation. American citizens, according to U.S. domestic legislation, are accorded greater protection than non-American unlawful combatants. They can use, for instance, the American constitution.254 One must also bear in mind that the Fourth Geneva Convention is not applicable to persons who are nationals of the detaining power. Consequently, Hamdi and Padilla cannot rely on G.C. IV since they are American citizens.255

Two years after the Hamdi case, the Supreme Court decided Hamdan vs. Rumsfeld.256 Salim Hamdan was a Yemeni national who the Bush administration identified as bin Laden’s bodyguard and driver. In November 2001, he was captured and transferred to Guantanamo Bay. He was charged with conspiracy and the administration declared him suitable for trial by a military tribunal. Eventually, his case was brought before the Supreme Court. The Court came to the conclusion that the military tribunal was not competent because it violated, amongst others, the Geneva Conventions. They

250 Hamdi vs. Rumsfeld, 542 U.S. 507 (2004); SHUMATE, B., “New rules for a new war: the applicability of the Geneva Conventions to Al Qaeda and Taliban detainees captured in Afghanistan”, New York International Law Review 2005, 1-86. 251 HONIGSBERG, P.J., “Chasing enemy combatants and circumventing international law: a license for sanctioned abuse”, UCLA Journal of International Law and Foreign Affairs 2007, 4-95. 252 Rumsfeld vs. Padilla, 542 U.S. 426 (2004). 253 Rumsfeld vs. Padilla, 542 U.S. 426 (2004); HARRIS, G.C., “Terrorism, war and justice: the concept of the unlawful enemy combatant”, Loyola of Los Angeles International and comparative Law Review 2003, 1-13. 254 HONIGSBERG, P.J., “Chasing enemy combatants and circumventing international law: a license for sanctioned abuse”, UCLA Journal of International Law and Foreign Affairs 2007, 4-95. 255 VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 256 Hamdan vs. Rumsfeld, 548 U.S. 557 (2006).

emphasised the importance of common art. 3 to the Geneva Conventions.257 According to this provision, Hamdan had the right to a trial before a regularly constituted court affording all the judicial guarantees.258 By stating that common art. 3 applied to his situation, the Court decided that Hamdan was captured in a non-international armed conflict, although the provision also constitutes a minimum in international armed conflicts. As a result, none of the captives to whom common art. 3 applies, could ever be determined to be a prisoner of war under the Third Geneva Convention since this Convention applies to conflicts that are international in nature. Moreover, the Third and Fourth Geneva Conventions would not apply to the detainees. Because common art. 3 requires that all persons are to be treated humanely, the Hamdan decision had to put an end to the cruel and degrading treatment of unlawful combatants. However, the Court stated that their decision only applies to Al Qaeda detainees who were not covered as parties to the Conventions and not to the Taliban forces. The definition of an unlawful combatant as presented in the Hamdi case was reaffirmed by the Court. Interesting is the fact that a minority of judges recognized the universality of art. 75 A.P. I.259 Justice Stevens stated that art. 75 A.P. I is a safeguard for all persons in the hands of an enemy.260

3.2.3.5. Conclusion If the theory that members of the armed forces of a state do not have to meet the criteria for lawful combatancy is accepted, members of the Taliban could qualify as prisoners of war since they were the de facto government at that time.261 If this theory is not confirmed, strong arguments could be made to deny them prisoner of war status. Problems arise especially with the fourth criteria of compliance with international humanitarian law. Claims could be made that they passed the three other criteria.262 As unlawful combatants in an international armed conflict, they are not denied any protection. If they meet the nationality criteria of G.C. IV, this Convention should apply to their situation.263 If they do not meet these criteria, they should enjoy the protection afforded by art. 75 A.P.I. As customary international law, it is irrelevant whether the U.S. have ratified this Protocol or not. Common art. 3 to the Geneva Conventions is also applicable since it constitutes a minimum in both international and internal armed conflicts. This provision is especially important for the Taliban members captured after the interim government was installed because from that point on the conflict became internal in nature.264 President Obama intended to close Guantanamo Bay in January 2010 but this has not yet happened. Both Al Qaeda and Taliban members are hold in custody at this naval base. However, it is not because this base will be closed that a change in treatment will occur. Moreover, it is not the

257 Common art. 3, G.C.; HONIGSBERG, P.J., “Chasing enemy combatants and circumventing international law: a license for sanctioned abuse”, UCLA Journal of International Law and Foreign Affairs 2007, 4-95. 258 Common art. 3, G.C. 259Art. 75, A.P. I; HONIGSBERG, P.J., “Chasing enemy combatants and circumventing international law: a license for sanctioned abuse”, UCLA Journal of International Law and Foreign Affairs 2007, 4-95. 260 Hamdan vs. Rumsfeld, 548 U.S. 557 (2006). 261 ALDRICH, G.H., “The Taliban, Al Qaeda and the determination of illegal combatants”, The American Journal of International Law 2002, 891-898. 262 Art. 4A.2, G.C. III; CASEY, A.L., RIVKIN JR., D.B. and BARTRAM, D.R., “Unlawful belligerency and its implications under international law, Federalist Society White Paper 2003, 1-22; VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). 263 Art. 4 G.C. IV; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 264 Common art. 3, G.C.; art. 75, A.P. I; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198.

facilities that are the problem, but how the detainees are dealt with. Nevertheless, Obama wants to shift the balance from military tribunals to civilian courts which provide more safeguards.265

3.3. Mercenaries Another category of unlawful combatants is the category of mercenaries. This is explicitly stated in art. 47 of Additional Protocol I. According to the Protocol, no mercenary shall have the right to be a prisoner of war.266 In essence, mercenaries are persons who are hired to fight in wars and who solely do this for monetary of material gain. The history of mercenary troops goes back to Ancient Greece. At that time, there was a lack of specialized military troops and many people chose a military career because it was more profitable than traditional jobs. Later on, the Romans also used mercenaries. They were known as auxilia. Although the importance of mercenaries in armed conflicts varied during history, they never really disappeared. After World War II, the use of mercenary troops became almost a habit during the many wars that ravaged Africa. Nevertheless, they do not only operate in Africa, they can be found all over the globe.267 Nowadays, the mercenary industry is very active and the discussion is mainly situated around the use of private military contractors in countries such as Iraq and Afghanistan. They are not necessarily mercenaries according to international law, only a few private military contractors will fall under the rather restrictive definition of mercenaries. Nonetheless, like mercenaries they are perceived to act according to commercial or private interests in armed conflicts.268

3.3.1. The Geneva Conventions, Additional Protocol I and the Mercenaries Convention In the 17th century the international doctrine began to condemn the use of mercenary troops because national armies gained more and more importance. In the beginning, the critique focused on the moral element, but later on the focus shifted to the legal implications. In that respect, most authors had no problems with mercenaries. According to them, it was merely a contract of hire, such as one can hire a daily object. Nevertheless, problems remained. In the 20th century, a distinction was drawn between the active recruitment by a state on its territory and the acts of individuals who joined forces on their own accord. After World War II, the United Nations were founded and art. 2 of the UN Charter prohibits members to use or threaten to use force against the territorial integrity or political independence of a state. Some scholars believe that the provision upholds an obligation for states to prevent any act that could damage other states. This would include that states should prevent that their citizens would operate in foreign wars.269 The UN Security Council even adopted resolutions that urged to withdraw all mercenaries. In 1989 The UN General Assembly passed a resolution, the

265 X., “Q&A: closing Guantanamo”, http://news.bbc.co.uk/2/hi/americas/7844176.stm (consultation 23 April 2010); X., “Editorial: gitmo is primo”, http://www.washingtontimes.com/news/2010/apr/20/gitmo-is-primo/ (consultation 24 April 2010). 266 Art. 47, A.P. I. 267 MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010). 268 FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611; WALTHER, P., “The legal status of private contractors under international humanitarian law”, http://www.guardian-gbs.com/Presse/afhandling.pdf (consultation 6 April 2010). 269 Art. 2, Charter of the United Nations, 26 June 1945, United Nations Treaty Series, vol. 1, p. 1; MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010).

International Convention against the recruitment, use, financing and training of mercenaries.270 It only came in force in 2001.271 The definition of mercenaries in the light of this Convention can be found in art. 1 and is dual. In the first place, it copies art. 47 of Additional Protocol I, which will be dealt with later on. The only difference is that mercenaries do not have to take direct part in the hostilities. Whereas according to art. 47 A.P. I, it is necessary mercenaries participate directly in the hostilities. The definition is in a second way broadened since the following persons are also regarded as mercenaries:

“Any person who: (a) is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at: (i) overthrowing a Government or otherwise undermining the constitutional order of a State; or (ii) undermining the territorial integrity of a State; (b) is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation; (c) is neither a national nor a resident of the State against which such an act is directed; (d) has not been sent by a State on official duty; and (e) is not a member of the armed forces of the State on whose territory the act is under taken.”272

Hence, the Convention gives two definitions of mercenaries. The first definition is shaped on art. 47 A.P. I and regards armed conflicts. According to this definition, a mercenary has to be motivated by private gain and, additionally, material compensation substantially in excess of that paid to the armed forces of the state. Since these are cumulative conditions, a person who only fights for ideological reasons and therefore without any compensation will not be qualified as a mercenary. If these conditions were not cumulative and private gain would have a larger meaning than the pure economic sense, such persons could be regarded as mercenaries in the light of the Mercenaries Convention. The second definition applies to any other situation than armed conflicts. In this situation, the private gain has to be significant, while no definition of material compensation is provided.273 Art. 47 A.P. I applies to international armed conflicts. The Mercenaries Convention adds a non-international element to the status of mercenaries. It includes, for instance, participation in overthrowing a government, which is internal in nature.274 In general, the Convention qualifies as crimes the recruitment, financing, use and training of mercenaries. For the first time in history, the use of mercenary troops is put in relation to the self-determination of peoples. Art. 5 of the Convention clearly condemns the use of mercenaries in wars against colonial regimes. States should make these offences punishable in their national legislation by appropriate penalties.275 Furthermore, the Convention emphasises that it shall be applied without prejudice to the law of armed conflicts and humanitarian law. This also includes

270 Resolution 44/34 of the United Nations General Assembly (4 December 1989) UN Doc. A/RES/44/34 (1989). (Hereafter: Mercenaries Convention); MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010). 271 FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611. 272 Art. 1, Mercenaries Convention. 273 Art. 1, Mercenaries Convention; MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010). 274 LIU, H.-Y., “Leashing the corporate dogs of war: the legal implication of the modern private military company”, Journal of Conflict and Security Law 2009, 1-28. 275 Art. 5, Mercenaries Convention; MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010).

the provisions regarding the status of combatant or prisoner of war. In essence, it says that mercenaries are continued to be seen as unlawful combatants under art. 47 A.P. I.276 The Convention also provides guidelines that states should follow if their nationals commit the crimes set forth in the Convention. There is an application of the aut dedere aut iudicare principle. This means that the state has the duty to extradite the person when another state requests his extradition. If they do not extradite him for some reason, the state has the obligation to judge him for these crimes. If a state wants to extradite a person, it has to submit the case to its authorities in order to initiate criminal proceedings, even if the crime has not been committed on its own territory. The offences provided by the Convention shall be regarded as causes of extradition in any extradition treaty signed by the states who are a party to the Mercenaries Convention.277

The main purpose of international humanitarian law is to provide protection to persons in armed conflicts. In this respect, it is rare that it sidelines mercenaries. The provisions regarding mercenaries have a rather symbolic significance; they are the subject of particular attention and are accorded less protection than combatants.278 The first convention referring to mercenaries was the Hague Convention of 1907 respecting the rights and duties of neutral powers and persons in case of war on land.279 It mainly deals with mercenary activity in terms of neutrality. It is prohibited to form corpses of combatants or open recruiting agencies on the territory of a neutral state to assist combatants in an armed conflict. It places a direct responsibility on neutral states to ensure that these acts do not take place on their territories.280 A person enlisted as a mercenary in favour of a state cannot claim neutrality, although he is still entitled to the protection afforded to the nationals of a belligerent state.281 This article reflects what the international doctrine thought about mercenaries. It was considered a lawful practice on the condition that the state was not involved. Mercenaries are not mentioned in the Geneva Conventions. Nevertheless, they could be brought under the scope of art. 4 G.C. III. They are granted prisoner of war treatment if they form part of the armed forces, militias or other volunteer forces whose members are entitled to such treatment.282 The term mercenary appears for the first time in a treaty in the First Additional Protocol. It only applies to international armed conflicts. As stated above, only 163 countries ratified this Protocol. However, the ICRC argues that art. 47 A.P. I reflects customary international law.283 They were only in 1977 literally mentioned in a treaty due to the fact that they largely had the same rights as any other soldier. No specific provisions

276 Art. 11 and 16, Mercenaries Convention; MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010). 277 Art. 9, 12 and 15, Mercenaries Convention; MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010). 278 FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611. 279 Hague Convention respecting the rights and duties of neutral powers and persons in case of war on land, 18 October 1907, League of Nations Treaty Series, vol. 54, p. 540. (Hereafter: Hague Convention on the rights and duties of neutral powers and persons in case of war on land). 280 Art. 4 and 5, Hague Convention on the rights and duties of neutral powers and persons in case of war on land. 281 Art. 17, Hague Convention on the rights and duties of neutral powers and persons in case of war on land; FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611. 282 Art. 4, G.C. III; MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010). 283 FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611.

were needed. However, since 1977 and the appearance of the First Additional Protocol, the legal position of mercenary soldiers definitely changed.284 According to art. 47 A.P. I no mercenary shall have the status of prisoner of war.285 The provision also gives a definition:

“A mercenary is any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; (e) is not a member of the armed forces of a Party to the conflict; and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.”286

Art. 47 was the result of a heated debate. Some authors say that many African and Eastern European states were in favour of a more severe text. This would have obliged the states to prohibit the recruitment and training of mercenaries.287 African states are not always in favour of mercenaries because during the decolonization period of the 1950s and 1960s mercenaries were hired to prevent the self-determination of the newly independent states.288 However, other authors believe that the provision was inserted to calm down the African countries and was intentionally narrow in its scope of application. Since to be qualified as a mercenary, one has to meet all six conditions. It is virtually impossible to find anyone who meets all these conditions. One of the most important conditions is the one that refers to the motivation. It is their motivation to take part in the hostilities that distinguishes mercenaries from other actors in armed conflicts.289 Art. 47 does not make a distinction between civil wars and international wars. It condemns mercenary activities in a general way. In that respect, it is a positive stipulation. Nonetheless, there is also a lot of criticism on the provision. In the first place, some people disapprove the definition of material compensation. The material compensation has to be in excess of that paid to combatants belonging to the armed forces of the state. It could be interpreted in such a way that its meaning would be lost. Any state can establish by itself the amount of compensation in excess of that paid to the other forces of the state. In that respect, it will depend on each state to qualify a combatant as a mercenary or a lawful combatant.290 Another criticism on the motivation criterion is that the excessive material compensation must be in addition to the motivation for private gain. This leads to problems when one has to interpret an individual’s motivation for

284 MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010). 285 Art. 47, A.P. I. 286 Ibid. 287 Art. 47, A.P. I; MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010). 288 LIU, H.-Y., “Leashing the corporate dogs of war: the legal implication of the modern private military company”, Journal of Conflict and Security Law 2009, 1-28. 289 Art. 47, A.P. I; FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611. 290Art. 47, A.P. I; MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010).

participation in hostilities. A definition that requires positive proof of motivation is, according to some authors, unworkable. They can only be defined by reference to what they do instead of why they do it.291 Another point of criticism is made with regard to the fourth condition, the one that says that nationals or residents of territory controlled by a party to the conflict are not considered to be mercenaries. Citizens or residents of a state who enlist as mercenaries and are being paid to fight against the same state cannot be seen as mercenaries since they are citizens or residents of a party to the conflict. Instead of being treated as mercenaries, they will be regarded as lawful combatants.292 However, the greatest problem with art. 47 A.P. I arises when it is read in the light of the rest of the Protocol. It provides a rather detailed definition of mercenaries, but the only consequence of being a mercenary is that one is regarded as an unlawful combatant. Nonetheless, it has an important consequence in the light of this thesis. Mercenaries are not really an exception to the rules regarding combatant status because they are not allowed to be members of the armed forces of a party whereas art. 43 A.P. I defines combatants as members of the armed forces.293

3.3.2. Other instruments for the elimination of mercenarism Apart from the Mercenaries Convention and art. 47 A.P. I, there are other instruments that focus on mercenaries. Their primary focus is to criminalize their activities. The first instrument worth mentioning is the Draft Convention on the prevention and suppression of mercenarism of 1976 (Draft Luanda Convention). It was the first convention that dealt with mercenaries on a regional level and was the result of the mercenary trials in Angola in 1976. It affirmed the responsibility of states to prevent their nationals from participating in mercenary activities and included provisions on state responsibility for the employment or recruitment of mercenaries by the government. According to the Convention, the crime of mercenarism can be committed by individuals, groups, representatives of states and states. These actors are liable when they organise or support mercenaries. Also punishable is the activity of mercenaries itself and when mercenary activities are taking place in a territory under its jurisdiction or under its control or when they are afforded transport. The aforementioned activities are punishable when they are committed with the aim of opposing by armed violence the process of self- determination. Furthermore, mercenaries give up their right to combatant and prisoner of war status upon capture.294 A second instrument is the Convention for the elimination of mercenarism in Africa. It was adopted in 1977 and is the work of the Organization of African Unity. The definition of a mercenary in this Convention is almost the same as art. 47 A.P. I. The only difference can be found with regard to the motivation. It only requires that a party to the conflict promises the mercenary material compensation. There is also an aspect of criminalisation, which can also be found in the Draft Luanda Convention. However, this criminalisation is nowhere to be found in A.P. I. The only purpose of art. 47 A.P. I is to deny mercenaries prisoner of war status. The list of offences in the1977 Convention is the same as in the Draft Luanda Convention. Every state has to ensure that mercenarism

291 Art. 47, A.P. I; FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611. 292 Art. 47, A.P. I; MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010). 293 Art. 43 and 47, A.P. I; FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611. 294 Draft Convention on the prevention and suppression of mercenarism, 13 June 1976, CM 433 Annex I Rev.1; FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611; WALTHER, P., “The legal status of private contractors under international humanitarian law”, http://www.guardian-gbs.com/Presse/afhandling.pdf (consultation 6 April 2010).

is a criminal offence according to their national law. They are also criminally responsible for any specific criminal act they commit during their duty. As the Protocol, it states that mercenaries are to be considered unlawful combatants since they are not entitled to prisoner of war status.295 It is not surprising that these instruments were formed in Africa. Mercenaries were and are frequently used in armed conflicts in the African continent. The African states have reacted by making mercenarism punishable.

3.3.3. Private military contractors/companies Since private military contractors and companies are a hot item nowadays, they deserve a small explanation. Like mercenaries, they are involved in armed conflicts for private gain. However, private military contractors are not the same as mercenaries. Only a minority of them falls under the definition of mercenaries provided by art. 47.2 A.P. I since they are rarely recruited for a specific armed conflict and for offensive combat. There are also problems with the nationality criteria and the financial motivation. They can receive combatant status in two ways. Firstly, this can be achieved by direct membership to the armed forces of state according to art. 4A.1 G.C. III and art. 43 A.P. I. Secondly, the private military company can be connected to the state according to art. 4A.2 G.C. III and art. 43 A.P. I. Private military companies provide martial services through a corporate legal framework. A connection with a state is highly unlikely because the reason why states use private military contractors is to outsource their defence. In other words, direct integration in the armed forces of state is rare because the purpose of hiring private military contractors is to avoid this responsibility. Moreover, they are mainly hired by multinational companies and not by states. In addition, they normally do not fight on behalf of a party to the conflict. As for private military companies, IHL does not afford status or does not impose obligations to legal persons. For these reasons, an overwhelming part of the private military contractors are to be seen as civilians. A small part can qualify as civilians who accompany the armed forces, according to art. 4A.4 G.C. III, as long as they do not take part in the hostilities. If a state hires civilian contractors to take a direct part in the hostilities on their behalf without incorporating them in their armed forces, they create unlawful combatants.296

3.3.4. Conclusion As unlawful combatants under international humanitarian law, mercenaries are not acting in a legal vacuum. The general rules for unlawful combatants should be applied to mercenaries. As they are not entitled to prisoner of war status or combatant status in international armed conflicts, they will not receive protection from the Third Geneva Convention. If they meet the nationality criteria set out in the Fourth Geneva Convention, they will be protected by this Convention.297 However, if they do not meet the nationality criteria, they can always rely on art. 75 A.P. I. Not all states have ratified this

295 Convention for the elimination of mercenarism in Africa, 3 July 1977, CM 817 (XXIX) Annex II Rev. 1; FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611. 296 Art. 4A, G.C. III; art. 43 and 47, A.P. I; WALTHER, P., “The legal status of private contractors under international humanitarian law”, http://www.guardian-gbs.com/Presse/afhandling.pdf (consultation 6 April 2010); LIU, H.-Y., “Leashing the corporate dogs of war: the legal implication of the modern private military company”, Journal of Conflict and Security Law 2009, 1-28. 297Art. 4, G.C. IV; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74.

instrument, but nowadays it is regarded as customary international law.298 In the third place, common art. 3 to the Geneva Conventions is applicable to mercenaries in international armed conflicts. In non- international armed conflicts, mercenaries can only invoke the protection of common art. 3 to the Geneva Conventions since it constitutes the minimum protection in both international and internal armed conflicts and is considered customary international law.299 As for the mercenary specific instruments, a mercenary can be criminally punished for his status as mercenary and for any other criminal act during his duty. Although drafted with good intentions, these instruments have not been so successful. In the Angolan mercenary trials some persons were convicted of the crime of being mercenary with the aim to extinguish the independence of Angola. However, these trials remain exceptions. The most prosecutions have been prosecutions under existing domestic law. In the most cases, the word mercenary is not even mentioned.300

3.4. Child soldiers In the last decades, armed groups all over the world have recruited hundreds of thousands of child soldiers. Nowadays, there are thought to be around 300 000 child soldiers participating in armed conflicts. Most of them are adolescents, but there are also children under the age of 10 taking part in hostilities. Some of them are forced to join the armed forces, others enlist voluntarily. However, voluntarily is a misleading term because they are mainly driven by social, cultural, economic or political pressure. They often do not have the free choice of adult soldiers to join armed forces. Additionally, nearly all girls abducted into armed groups are forced into sexual slavery. The reason why children are recruited is because they are widely obtainable, cheap and effective. Modern warfare in post-colonial states has been characterized by the abandonment of all standards and the creating of a sense of dislocation and chaos. This has led to the loss of distinction between combatants and civilians, high levels of violence, genocide and the recruitment of child soldiers in armed forces.301 However, the armies of the West have renounced the use of child soldiers. Most of them are used in conflicts in the poorest areas of the world. The overwhelming part of the child soldiers are acting for national liberation movements, rebels, militia or other armed groups functioning outside the formal structure of states forces but are sometimes allied with the state. Nevertheless, modern states such as Nazi Germany, Iraq and Iran have used child soldiers.302 Given their numbers and vulnerability due to their young age, it is important to determine which status they receive under international humanitarian law.

As mentioned above, international humanitarian law tries to make a distinction between civilians and combatants, and between lawful and unlawful combatants. Lawful combatants are to a certain extent

298 Art. 75, A.P. I; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 299 Common art. 3, G.C.; ICJ, Military and Paramilitary Activities in and against Nicaragua (the Republic of Nicaragua vs. the United States of America), Judgment, ICJ Reports 1986, 14; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 300 FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611. 301 MACHEL, G., “The impact of armed conflict on children”, http://saiv.net/SourceBook/Storage/documents/doc_armedconflict_children.pdf (consultation 24 March 2010); WELLS, S.L., “Crimes against child soldiers in armed conflict situations: applications and limits of international humanitarian law”, Tulane Journal of International and Comparative Law 2004, 285-213. 302 ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306.

privileged, whereas unlawful combatants are not. Due to these consequences, IHL tries to ensure that captured children who are lawful combatants retain prisoner of war status and that captured children who are unlawful combatants are protected from the severest punishments, even if they committed war crimes.303

Humanitarian groups try to promote the “straight 18” position. They try to prevent the recruitment and use of child soldiers in armed forces or groups. A child soldier is, according to them, any person under the age of 18. Furthermore, they try to block all criminal prosecutions for war crimes committed by children. The “straight 18” position has its origins in the universal definition of childhood found in the UN Convention on the rights of the child. This Convention defines childhood as beginning at birth and ending at the age of 18. However, the problem with this position is that it only reflects the view of Western humanitarian groups since there is no universal understanding of childhood. Each culture has its own understanding of childhood. It does not always end at the age of 18. In many Third World countries childhood ends a few years earlier than in the West. During the drafting of the Additional Protocols in the 1970s a universal standard of childhood was preferred. No attention was paid to any concerns about local understandings of childhood. The drafters argued that the age of 15 seemed reasonable at that time since most prior international agreements favoured this age. They also hoped to broaden the age beyond 15 in the future. This is the reason why no definition of childhood can be found in the Protocols.304

3.4.1. Status under the Geneva Conventions and Additional Protocols When throwing a glance at the Geneva Conventions, it becomes clear that they do not specifically address the situation of child soldiers. The lack of indication to child soldiers in the Conventions does not mean that they cannot rely on them.305 Children were already given a degree of protection in the Hague Conventions of 1907, but they mainly treated them as non-participants in the conflicts. There was no instrument that dealt directly with the role of children in armed conflicts. In no way their involvement was regulated.306 The first time they were mentioned by name in an international agreement was in 1977 with the adoption of the Additional Protocols. Additional Protocol I addresses international armed conflicts, whereas Additional Protocol II addresses non-international armed conflicts. Two categories of ages are used. The first category contains younger children, these are persons below the age of 15. The second category includes older children or persons between the age of 15 and 18. The way international law is applied to each category of age depends on the type of conflict.307

In international armed conflicts, art. 77 A.P. I requires states to take all feasible measures in order that those children who have not attained the age of 15 are not recruited or do not take direct part in the

303 ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306. 304 A.P. I; A.P. II; Resolution 44/25 of the United Nations General Assembly (20 November 1989), UN Doc. A/RES/44/25 (1989). (Hereafter: United Nations Convention on the rights of the child).ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306. 305 G.C.; WELLS, S.L., “Crimes against child soldiers in armed conflict situations: applications and limits of international humanitarian law”, Tulane Journal of International and Comparative Law 2004, 285-213. 306 Hague Regulations on the law and customs of war on land; RENTELN, A.D., “The child soldier: the challenge of enforcing international standards”, Whittier Law Review 1999, 1-12. 307 A.P. I; A.P. II.

hostilities. When they recruit persons between the age of 15 and 18, states shall give priority to the oldest persons. For instance, if two children present themselves, the one 15 and the other 17, the state shall recruit the 17 year old child.308 The treaty is much weaker than the draft treaty. The draft treaty foresaw that all necessary measures should be taken instead of merely feasible measures. Furthermore, the treaty only speaks of direct participation in the hostilities, whereas the draft treaty also contained provisions on a prohibition of voluntary enrolment. There are a number of reasons why the Protocol is drafted in rather weak language on the part of children. First, states were unwilling to adopt clear and obligatory language. They wanted to determine the meaning of the provisions for themselves. It does not actually provide an obligation to reduce the use of child soldiers; it merely monitors the ambiguously defined efforts to reduce their numbers. Second, there was great resistance from states that supported national liberation movements. They argued that the large numbers of child soldiers were decisive in their success. The Protocol allows the voluntary enrolment of child soldiers under the age of 15 and the open recruitment of child soldiers from the ages of 15 to 18, giving priority to the oldest. In addition, by categorizing national liberation wars as international armed conflicts instead of civil wars, the international community decriminalized certain internal conflicts and permitted certain groups to recruit children below the age of 15.309 The drafters of A.P. I were aware of the fact that, despite the prohibition, children would participate in armed conflicts. Therefore, they adopted a provision that the recruiters are responsible but not the children. When the age limit is not respected, child soldiers will receive a beneficial status.310 Children below the age of 15 who take direct part in the hostilities and who are captured by the enemy benefit from the protection of the provision for children in A.P.I, whether or not they are prisoners of war.311 Hence, children who are unlawful combatants are also granted some level of protection. They shall receive the care and aid they require.312 Children shall also be the object of special respect and shall be protected against indecent assaults. If they are detained, children shall be held in quarters separate from adults.313 Additionally, the death penalty shall not be executed for any offence related to the armed conflict. This last provision applies to persons who have not attained the age of 18 at the time the offence was committed.314 Additional Protocol I thus regulates the participation of children in international armed conflicts. However, its protection aims in the first place to prevent the use of children in wars and does not expressly regulate their status or treatment. In addition to A.P. I, the Fourth Geneva Convention is also applicable in international armed conflicts. There are several provisions regarding children. They primarily guarantee the care and education of children and the reunion with their family members. However, they do not aim to regulate the participation of children in the hostilities.315

As for non-international armed conflicts, many of the states that supported anti-colonial rebellions and which had a more moderate view on child soldiers took a more radical position towards the use of child soldiers by groups that threatened their own sovereignty. This was expressed in Additional

308 Art. 77.2, A.P. I. 309 Art. 77, A.P. I; ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306. 310 Art. 77, A.P. I; ACKE, A., “Kindsoldaten in de juridische teksten”, Internationaal Humanitair Recht in de Kijker 2007, 63-78. 311 Art. 77.3, A.P. I. 312 Art. 77.1, A.P. I. 313 Art. 77.4, A.P. I. 314 Art. 77.5, A.P. I. 315 G.C. IV; WELLS, S.L., “Crimes against child soldiers in armed conflict situations: applications and limits of international humanitarian law”, Tulane Journal of International and Comparative Law 2004, 285-213.

Protocol II that applies to civil wars between the armed forces of a state and dissident groups.316 In internal armed conflicts, there is an absolute prohibition to recruit children below the age of 15, even voluntary enlistment, and to allow them to take part in the hostilities.317 When comparing the language of A.P. II with the one of A.P. I, it is a striking feature that A.P. II burdens states with a more enforceable obligation in the light of the situation of child soldiers.318 Like A.P. I, the Protocol prohibits the death penalty for offences committed by persons under the age of 18.319 In addition, it gives protected status to children under the age of 15 in the sense that they should receive the care and aid they require.320 The second important difference with A.P. I is that A.P. II creates an absolute ban on the recruitment and use of child soldiers under the age of 15. Nonetheless, these children should receive care and aid. When they participate in the hostilities without having attained the age of 15, they continue to receive the protection provided by art. 4.3. A.P. II.321 It is noteworthy that A.P. II is binding on state parties as well as armed opposition groups. This can be explained by the fear that rebel groups would use child soldiers to overthrow the government. States did not favour the idea that groups which threatened their sovereignty had the advantage of child soldiers. One of the problems of A.P. II is that not many states have ratified it. The states that ratified the Protocol frequently deny its application to the conflicts in which they are involved because they claim that the conflicts are merely internal disturbances of riots to which the Protocol does not apply. At present, there is no international body that determines which internal conflicts meet the conditions necessary for the application of A.P. II. This is especially problematic in the situation of child soldiers, because they are mostly used in non-international armed conflicts. Many children are lost in the gap of existing international law because states did not ratify the Protocol or simply deny its application. There is no point in having international standards if they are never used.322 Another instrument regulating internal armed conflicts is common art. 3 to the Geneva Conventions. However, persons protected under this provision are those who do not, or cease to, actively or directly participate in the hostilities. They are, for instance, guaranteed protection from violence to life and person. Hence, persons who take an active part in the hostilities fall outside the scope of A.P. II and common art. 3. Only when they have ceased to participate in the hostilities, they can rely on the protection of these instruments.323

The rules of international humanitarian law primarily aim to protect children from the effects of war. The Additional Protocols only provide some protection to child soldiers active in armed conflicts and regulate their participation in the hostilities. Despite prohibitions on their involvement in the hostilities, children do participate. In that situation, they are recognized as combatants and loose the

316 A.P. II; ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306. 317 Art. 4.3(c), A.P. II. 318 A.P. II; ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306. 319 Art. 6.4, A.P. II. 320 Art. 4.3, A.P. II. 321 Art. 4.3(c), A.P.II; ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306; ACKE, A., “Kindsoldaten in de juridische teksten”, Internationaal Humanitair Recht in de Kijker 2007, 63-78. 322 RENTELN, A.D., “The child soldier: the challenge of enforcing international standards”, Law Review1999, 1-12; ABBOTT, A.B., “Child soldiers: the use of children as instruments of war”, Suffolk Transnational Law Review 2000, 1-30. 323 Common art. 3, G.C.; A.P. II; WELLS, S.L., “Crimes against child soldiers in armed conflict situations: applications and limits of international humanitarian law”, Tulane Journal of International and Comparative Law 2004, 285-213.

more substantive protection afforded to civilians under international humanitarian law. As long as they take part in the hostilities, they become lawful military targets.324

3.4.2. The ongoing endeavour towards a ban on child soldiers After the adoption of the Additional Protocols, attempts have been made to grant child soldiers better protection. It started with the first international definition of childhood in 1989. This definition can be found in the United Nations Convention on the rights of the child. It defines childhood as: “any person below the age of 18 years”.325 However, the second part of the sentence states that majority can be attained earlier when the domestic law applicable to the child declares it. The last part of this provision makes it impossible to consider the age of 18, as the end of childhood, customary international law because the domestic legislator can set a lower age limit.326 Despite the definition, the language of the Convention excels in weakness. It is the same weakness that affects Additional Protocol I. The problem of child soldiers is explicitly addressed in art. 38. It declares that states shall take all feasible measures to ensure that all persons under the age of 15 do not take part in the hostilities. Furthermore, they shall not recruit persons under the age of 15 into their armed forces. States shall also attempt to give priority to the oldest persons when they recruit persons between the age of 15 and 18. Nonetheless, it does not make any reference to the problem of child soldiers in civil wars and it only limits the conduct of states. The Convention makes no reference to non-state actors. This flaw was addressed in the Optional Protocol to the Convention on the rights of the child on the involvement of children in armed conflict. When ratifying the Convention, many states attached declarations indicating that they would undertake obligations not to allow children to participate in armed conflicts under the age of 18. Instead of limiting their obligations with reservations, they expanded them.327 However, some states block the effectiveness of the Convention, especially the United States. They have not ratified it and do not endorse the efforts to protect children from the atrocities of armed conflicts. Although they provide financial support for the rehabilitation of former child soldiers, they fail to address the cause of the problem. The U.S. allows even persons of 17 to enlist in their forces. Establishing 18 as the minimum age would provide evidence of customary law because of the consistency with existing international norms.328

Another step towards a prohibition on child soldiers was made in 1998 with the adoption of the Rome Statute that constituted the International Criminal Court. It is a permanent court that has jurisdiction over war crimes and is located in Den Hague. The Rome Statute is applicable to both international and

324 WELLS, S.L., “Crimes against child soldiers in armed conflict situations: applications and limits of international humanitarian law”, Tulane Journal of International and Comparative Law 2004, 285-213; ABBOTT, A.B., “Child soldiers: the use of children as instruments of war”, Suffolk Transnational Law Review 2000, 1-30. 325 Art. 1, United Nations Convention on the rights of the child. 326 Art. 1, United Nations Convention on the rights of the child; ACKE, A., “Kindsoldaten in de juridische teksten”, Internationaal Humanitair Recht in de Kijker 2007, 63-78. 327 Art. 38, United Nations Convention on the rights of the child; Resolution 54/263 of the United Nations General Assembly (25 May 2000), UN Doc. A/RES/54/263 (2000). (Hereafter: Optional Protocol to the United Nations Convention on the rights of the child on the involvement of children in armed conflict); ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306; RENTELN, A.D., “The child soldier: the challenge of enforcing international standards”, Whittier Law Review 1999, 1-12. 328 ABBOTT, A.B., “Child soldiers: the use of children as instruments of war”, Suffolk Transnational Law Review 2000, 1-30.

non-international armed conflicts, but limited to the prosecution of individuals. It prohibits the enlistment of child soldiers in the armed forces and the use of them in the hostilities in international and internal conflicts. The recruitment and use of child soldiers constitutes a war crime. However, the prohibition is limited to children under the age of 15. Thus, the recruitment and use of children between 15 and 18 stays less stigmatised because it is not regarded as one of the most contemptible crimes since it is not punishable under the Rome Statute. Another disadvantage of the Rome Statute is the fact that the Court does not have jurisdiction over any person who was under 18 at the time of the alleged commission of the war crime. Thus, it leaves the issue of war crimes committed by child soldiers unaddressed. In addition, the Rome Statute created a universal prohibition on the use of child soldiers, but it mainly focused on children below the age of 15. It left out the children between 15 and 18. 329 A positive consequence of the Rome Statute is that the crimes regarding child soldiers no longer fall under the exclusive jurisdiction of the state, but are granted a level of universal jurisdiction. The ICC is not the only one that can prosecute; this obligation is extended to the states who are a party to the Rome Statute.330 Unfortunately, the United States did not ratify the Statute. They did not only oppose the establishment of the Court, they also specifically opposed the inclusion of the use of child soldiers in international armed conflicts as a war crime falling under the jurisdiction of the Court. The U.S. is even convincing states to adopt a statute that satisfies their needs. They are further undermining international efforts to provide an extended protection to children.331

In 1999, the International Labour Organisation also made a contribution with the Convention concerning the prohibition and immediate action for the elimination of worst forms of child labour. Child labour includes, amongst others, child soldiering. It prohibits the forced recruitment of children under 18 in armed conflicts. The voluntary enlistment on the other hand is not prohibited.332

An attempt to resolve the problematic situation of children between 15 and 18 was made with the Optional Protocol to the Convention on the rights of the child on the involvement of children in armed conflict. It aimed to establish an effective international ban on the recruitment and participation of children under the age of 18 by increasing their protection under art. 38 of the UN Convention on the rights of the child and art. 77 A.P. I.333 It also represents the most recent effort to move to the “straight 18” position. In essence, the Optional Protocol requires states to take all feasible measures that members of their armed forces, who are not 18, do not take part in the hostilities. Furthermore, states have to ensure that all persons below the age of 18 are not compulsory recruited in their armed forces and the minimum age of voluntary recruitment has to be higher than 15. In general, it repeats the weak language of Additional Protocol I; the only difference is that it raises the age bar to 18. In that way it

329 Rome Statute of the United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court, 12 July 1998, UN Doc. A/CONF./183/9 (1998) (Hereafter: Rome Statute); ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306. 330 Rome Statute; ACKE, A., “Kindsoldaten in de juridische teksten”, Internationaal Humanitair Recht in de Kijker 2007, 63-78. 331 ABBOTT, A.B., “Child soldiers: the use of children as instruments of war”, Suffolk Transnational Law Review 2000, 1-30. 332 Art. 3, Convention concerning the prohibition and immediate action for the elimination of worst forms of child labour of 17 June 1999, United Nations Treaty Series, vol. 2133, p. 163; DRUBA, V., “The problem of child soldiers”, http://www.springerlink.com/content/x738x20g12206kg0/ (consultation 2 April 2010). 333 Optional Protocol to the United Nations Convention on the rights of the child on the involvement of children in armed conflict; ABBOTT, A.B., “Child soldiers: the use of children as instruments of war”, Suffolk Transnational Law Review 2000, 1-30.

makes it more difficult for recruiters to claim confusion about the age of the youngest soldiers. Besides the weak language, the enforcement is also flawed. However, state parties have to submit a binding declaration setting forth a minimum age for voluntary recruitment. State use of child soldiers is justified but armed groups, distinct from the armed forces of state, are in all circumstances prohibited to recruit or use child soldiers. Hence, with regard to rebel groups, the language is stronger. This is needed because most child soldiers are not in government forces but in other armed groups. It also makes clear that persons under the age of 18 are granted protection under the UN Convention on the rights of the child.334 Hence, the age of 18 is been widely promoted but it does not constitute customary international law. The drafters of the Additional Protocols reasoned, as mentioned above, that the age of 15 seemed a reasonable age limit at that time. Nevertheless, not even the age limit of 15 has achieved this status. The status of customary law would make the provisions more enforceable. Nevertheless, there are claims that the age limit of 15 has become customary law. The people defending this position seek their evidence in state behaviour.335

A regional approach towards child soldiers was made in 1990 with the adoption of the African Charter on the rights and welfare of the child. State parties shall take the necessary steps to ensure that children are not recruited. Additionally, they also need to take measures that children do not participate in the hostilities. A child is every person below the age of 18. It is a striking feature that the Charter has stronger language than the UN Convention on the rights of the child. For instance, the age limit is fixed at 18 and the domestic legislator cannot state that majority is attained earlier. 336

A great point of critique for all treaties is that they only cover the direct participation of children. They forget to cover the indirect participation. This occurs when children accompany the armed forces or armed groups as messengers, cooks... These children are also exposed to the effects of armed conflicts and voices are raised to extend the concept of child soldiers to those juveniles participating indirectly in armed conflicts.337

Regardless of treaties prohibiting the use of child soldiers, they do fight in armed conflicts. Thus the international community had to answer the question whether child soldiers should be held responsible for their actions. There are arguments to answer this question negatively. Some scholars argue that there is no basis in international humanitarian law to prosecute children because they did not form the intent to commit crimes of genocide. Another argument is that international law treats children differently than adults. There is no punitive approach; it prefers rehabilitation as a way of handling child soldiers. Nevertheless, this rehabilitative approach cannot always be found in the domestic

334 Optional Protocol to the United Nations Convention on the rights of the child on the involvement of children in armed conflict; ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306; RENTELN, A.D., “The child soldier: the challenge of enforcing international standards”, Whittier Law Review 1999, 1-12. 335 RENTELN, A.D., “The child soldier: the challenge of enforcing international standards”, Whittier Law Review 1999, 1-12. 336 African Charter on the rights and welfare of the child (11 July 1990), OAU Doc. CAB/LEG/24.9/94 (1990); RENTELN, A.D., “The child soldier: the challenge of enforcing international standards”, Whittier Law Review 1999, 1-12; ACKE, A., “Kindsoldaten in de juridische teksten”, Internationaal Humanitair Recht in de Kijker 2007, 63-78. 337 ACKE, A., “Kindsoldaten in de juridische teksten”, Internationaal Humanitair Recht in de Kijker 2007, 63- 78.

law.338 Additionally, the ICC is not competent to try children who did not attain the age of 18 at the time they committed the crimes.339 It is left to the national courts to prosecute child soldiers according to their domestic law. The national courts have to respect the international norms, such as the UN Convention on the rights of child, if they are a party to those legal instruments. These contain procedural guarantees and the maximum punishments.340

3.4.3. From theory to practice A first opportunity to test international humanitarian law to the issue of child soldiers was the civil war in Sierra Leone between the government and the Revolutionary United Front. At the end of the ten year war a Court was founded where criminal charges were brought against individuals for recruiting child soldiers. It was the first international tribunal specifically mandated to address crimes committed against child soldiers. It was established by a resolution of the UN Security Council and an agreement with the government of Sierra Leone. In essence, individuals could be charged for war crimes committed under international law and for crimes under domestic law, including the recruitment and use of child soldiers. However, it incorporates an approach to child soldiering that is twofold. On the one hand, the leaders of the armed groups were indicted for recruiting and the use of children under the age of 15. Thousands of children were seized for their participation in the hostilities. In that way, they lost their civilian status. This can be categorized as a widespread attack on the civilian population satisfying the threshold of crimes against humanity. On the other hand, there was a lot of discussion about the culpability of the children because the Court also tried children. Eventually a compromise was reached about children’s culpability whereby the Court received jurisdiction over children between 15 and 17, although they could not be imprisoned. However, the majority of the cases involving children were referred to a Truth and Reconciliation Commission. After the truth and reconciliation mechanism they would be released back in their communities. Only those with the greatest responsibility for war crimes would be brought before the Court. Nonetheless, the Chief Prosecutor of the Special Court announced that no one under the age of 18 would be trialled. Hence, the only forum in which the criminal culpability of children could be addressed became the Truth and Reconciliation Commission. Nevertheless, it mainly treated child perpetrators as victims and focused on the truth.341

Another opportunity to test international law was the war on terror by the United States, who detain children at Guantanamo Bay. The military defines juveniles or children as any person under the age of 16. These child soldiers were imprisoned separately from the adults in Camp Iguana. The ICRC visited the facilities and stated in their report that the U.S. made efforts to provide special measures for the juvenile detainees, such as housing them separately from the adults and providing them with

338 RENTELN, A.D., “The child soldier: the challenge of enforcing international standards”, Whittier Law Review 1999, 1-12. 339 Art. 28, Rome Statute. 340 United Nations Convention on the rights of the child; ACKE, A., “Kindsoldaten in de juridische teksten”, Internationaal Humanitair Recht in de Kijker 2007, 63-78. 341 Resolution 1315 of the United Nations Security Council (14 August 2000), UN Doc. S/RES/1315 (2000); ROMERO, J.A., “The Special Court for Sierra Leone and the juvenile soldier dilemma”, http://www.law.northwestern.edu/journals/jihr/v2/8/8.pdf (consultation 29 March 2010); ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306; WELLS, S.L., “Crimes against child soldiers in armed conflict situations: applications and limits of international humanitarian law”, Tulane Journal of International and Comparative Law 2004, 285-213.

everything they need. Nonetheless, it was not an appropriate place to detain them because they were held away from their families. In addition, the ICRC was worried with the possible psychological consequences. As a result, they were released in 2004. However, the children, who were ages 16 and 17, remained at Guantanamo. As the U.S. considered them to be adults, they were detained with the other detainees.342

3.4.4. Conclusion A preliminary remark has to be made insofar that international humanitarian law is primarily concerned with the involvement of children in the hostilities by regulating the age of recruitment and the age of participation in the conflicts. It is only on a secondary basis worried with the status child soldiers receive in their actions. In the first place, IHL tries to prohibit and limit their participation. That is the reason why only limited attention is paid to the status of children participating in armed conflicts. Because regardless of the age limits for children, they do participate in the hostilities and therefore their status needs to be examined.343

If considering that children are defined as persons under 18, they may lawfully participate in the hostilities when they have attained the age of 15. If they fulfil the conditions for lawful combatancy, they are to be treated as prisoners of war. However, they can also act as unlawful combatants. In those circumstances, they are not operating in a legal vacuum, as no unlawful combatant does. In international armed conflicts, if they meet the nationality criteria of G.C. IV, child soldiers receive its protection.344 If they fail to meet the criteria of G.C. IV, they can still rely on art. 75 A.P. I.345 Nevertheless, child soldiers, regardless of the fact that they fall under the scope of the Fourth Geneva Convention or not, are granted the protection of art. 77 A.P. I. It contains specific provisions for children although it is not regarded as customary international law.346 Besides G.C. IV and A.P. I, common art. 3 to the Geneva Conventions applies to their situation. In internal armed conflicts, the only applicable provision is common art. 3 to the Geneva Conventions. It contains the minimum provisions applicable in international and internal armed conflicts.347 Finally, there are several instruments attempting to ban child soldiers. However, these treaties are drafted in weak language and are not effective.348

342 JAMISON, M.A., “Detention of juvenile enemy combatants at Guantanamo Bay: the special concerns of children”, U.C. Davis Journal of Juvenile Law and Policy 2005, 1-28; ICRC, “Guantanamo Bay: overview of the ICRC’s work for internees”, http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList74/951C74F20D2A2148C1256D8D002CA8DC (consultation 9 May 2010). 343 WELLS, S.L., “Crimes against child soldiers in armed conflict situations: applications and limits of international humanitarian law”, Tulane Journal of International and Comparative Law 2004, 285-213. 344 Art. 4, G.C. IV; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 345 Art. 75, A.P. I; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 346 Art. 77, A.P. I; ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306. 347 Common art. 3, G.C.; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 348 ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306.

3.5. Spies and saboteurs Spies and saboteurs have a special status under international law. Spies have the task to collect information from the adversary parties, whereas saboteurs are given the mission to disrupt the actions of the enemy. Obviously they do not want to be recognized as belonging to another party in the conflict. That is why they will not wear a uniform. In this way, they fail to distinguish themselves from the civilian population, one of the conditions for lawful combatancy.349 A.P. I states that any person who is engaged in espionage and is captured shall not have the right to be a prisoner of war.350

3.4.5. Spies There is no international convention that addresses the legality of espionage in peacetime. It has been practiced by nations worldwide for centuries. Nevertheless, states have adopted laws that punish espionage if it is against their own interests. This is the consequence of one of the basic principles in international law, namely the territorial integrity and political independence of states. More interesting is the question whether espionage is allowed in times of war. Espionage is not prohibited by the international community as a fundamentally wrong activity. International humanitarian law even recognizes the well-established practice of employing spies. Although recognized by IHL, spies may be severely punished when they are captured by the enemy.351 Hugo Grotius already stated in the 17th century that sending spies in war is permitted but when they were caught, spies were usually treated very harsh. They often were subjected to the death penalty. This position was confirmed by the Lieber Code, a military instruction book for the Union troops during the American Civil War. According to the Lieber Code, a spy is a person who secretly seeks information with the intention of communicating it to the enemy. They were to be punished with death by hanging. Though, if a successful spy returned to his army and was captured afterwards, he would not be the subject to punishment for his acts a spy.352

The first important indication of spies in armed conflicts in conventions can be found in the Hague Regulations of 1907.353 According to the Hague Regulations, a person is considered a spy when: “acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.”354 On the one hand there are the military spies who belong to the armed forces and on the other hand there are the civilian spies who belong to the civilian population. What they have in common is that they try to gain military relevant information, act under false pretences or secretively and mostly fail to distinguish themselves from the civilian population. Under the Hague regulations, spies would not receive prisoner of war status if they would be captured. This reflected the international doctrine at

349 DETTER, I., “Symposium on the new face of armed conflict: enemy combatants after Hamdan v. Rumsfeld: the law of war and illegal combatants”, George Washington Law Review 2007, 1050-1121. 350 Art. 46.1, A.P. I. 351 SCOTT, R.D., “Territorially intrusive intelligence collection and international law”, Air Force Law Review 1999, 1-9. 352 SCHINDLER, D. And TOMAN, J., The laws of armed conflicts, Martinus Nijhof Publishers, The Hague, 1988, 3-23; CHESTERMAN, S., “The spy who came in from the Cold War: intelligence and international law”, Michigan Journal of International Law 2007, 1077-1151. 353 Hague Regulations on the law and customs of war on land; BILKOVA, V., “Members of private military and security companies and/as unlawful combatants”, Academy of European law 2009, 1-15. 354 Art. 29, Hague Regulations on the law and customs of war on land.

that time. Furthermore, they may be prosecuted for espionage under domestic law. However, the treaty states that no spy shall be punished without trial.355

There is only one explicit reference to spies in the Geneva Conventions. It can be found in art. 5 G.C. IV. Civilian spies do not lose their civilian status if they are detained during espionage. However, if military security requires so, they shall be regarded as having forfeited their rights of communication.356 There is also a six-month waiting period before the death sentence can be carried out.357 At the very least, they should be treated with humanity.358

In 1977 a specific provision was reserved for spies in international armed conflicts. It states that spies are not entitled to prisoner of war status.359 However, some customary rules needed to be preserved. Firstly, a member of the armed forces who gathers or attempts to gather information in the territory of an adverse party, shall not be seen as a spy if he wears a uniform.360 A second customary rule that needed to be safeguarded was the one stipulating that spies who avoid capture and rejoin their forces cannot –if captured thereafter- be prosecuted for previous acts of espionage.361 Besides the confirmation of these customary rules, a new element was added:

“A member of the armed forces of a Party to the conflict who is a resident of the territory occupied by an adverse Party and who, on behalf of the Party on which he depends, gathers or attempts to gather information of military value within that territory shall not be considered as engaging in espionage unless he does so through an act of false pretences or deliberately in a clandestine manner. Moreover, such a resident shall not lose his right to the status of prisoner of war and may not be treated as a spy unless he is captured while engaging in espionage.”362

The first part of this provision may seem obvious since the customary definition of a spy is one who acts secretly, but it is important with regard to residents of occupied territory. An underground combatant who is a resident of the occupied territory and who observes military actions while engaging in legitimate activities, cannot be seen as a spy because he uses the gathered information for the underground forces. However, if he acts clandestinely, he may be treated as a spy. Nonetheless, it is especially the second part of the provision that marks the most important change. It restricts the treatment as spies to those resident combatants who are captured in the act of espionage. The provision excludes a tempting clause by which an occupying power could deny prisoner of war status to resident guerrillas. Nevertheless, it still should frighten persons to engage in espionage because the risk of being caught in the act may be significant in occupied territory because the occupying power still has

355 Art. 30, Hague Regulations on the law and customs of war on land; BILKOVA, V., “Members of private military and security companies and/as unlawful combatants”, Academy of European law 2009, 1-15. 356 Art. 5, G.C. IV. 357 Art. 75, G.C. IV; CHESTERMAN, S., “The spy who came in from the Cold War: intelligence and international law”, Michigan Journal of International Law 2007, 1077-1151. 358 Art. 5, G.C. IV. 359 Art. 46.1, A.P. I. 360 Art. 46.2, A.P. I; ALDRICH, G.H., “Civilian immunity and the principle of distinction: guerrilla combatants and prisoner of war status”, American University Law Review 1982, 1-8. 361 Art. 46.4, A.P. I; ALDRICH, G.H., “Civilian immunity and the principle of distinction: guerrilla combatants and prisoner of war status”, American University Law Review 1982, 1-8. 362 Art. 46.3, A.P. I.

to determine what engaging in espionage means.363 When comparing the definition of a spy in art. 46.2 A.P. I to the one in art. 29 of the Hague Regulations, it becomes clear that the first definition is more transparent. The Hague Regulations define a spy as a person who acts secretly and excuses soldiers who do not wear a disguise. It was intended to cover combatants who wear civilian clothing within the definition of a spy, but it does not explicitly state so. Under A.P. I, the key element is wearing the uniform of the nation of the combatant. Whereas members of armed forces wearing the nation’s uniform while gathering information in enemy territory are not considered spies, members of armed forces wearing another uniform under the same circumstances may be treated as spies. In this way, art. 46.2 A.P. I removes the uncertainty created by art. 29 of the Hague Regulations since it substitutes the uniform of his armed forces for acting secretly and not wearing a disguise. The consequence of this change is that a member of the armed forces found in enemy territory while not wearing his uniform is presumed to act secretly.364

At the heart of the provision about spies in A.P. I is the term espionage, which means gathering or attempting to gather information. Art. 46 is primarily intended to address spies in which gathering information is a critical component. It is crucial to define espionage and spies because art. 44.3 A.P. I does not require combatants to distinguish themselves constantly from civilians. They only have to distinguish themselves during an attack or in operations preparatory to an attack. Consequently, members of armed forces may enter enemy territory without wearing a uniform as long as they do not gather information and properly distinguish themselves from the civilian population. They are not engaged in acts of espionage and do not violate the principle of distinction. However, there seems to be a problem with the concept of the uniform of his armed forces. Generally speaking, it is the same uniform as defined elsewhere in Additional Protocol I. A customary uniform that clearly distinguishes a member wearing it from a non-member should suffice.365

Spies enjoy the protection of art. 75 A.P. I. However, a distinction has to be made between military and civilian spies. On the one hand, civilian spies are granted the protection of the Fourth Geneva Convention if they meet the nationality criteria. If not, they can rely on art. 75 A.P. I, that reflects customary international law. On the other hand, military spies do not fall under the scope of G.C. IV since the Convention is only applicable to civilians. Nonetheless, military spies are granted the protection of art. 75 A.P. I.366 In addition, spies in international armed conflicts can also rely on common art. 3 to the Geneva Conventions. In treaties regarding non-international armed conflicts there is no reference to spies. A minimum of protection in internal armed conflicts is provided by common art. 3 of the Geneva Conventions. It applies to all persons –spies included- involved in armed conflicts.367

363 Art. 46.3, A.P. I; ALDRICH, G.H., “Civilian immunity and the principle of distinction: guerrilla combatants and prisoner of war status”, American University Law Review 1982, 1-8. 364 Art. 29, Hague Regulations on the laws and customs of war on land; art. 46.2, A.P. I; FERRELL, W.H., “No shirt, no shoes, no status: uniforms, distinction and special operations in international armed conflict, Military Law Review 2003, 1-33. 365 Art. 44.3 and 46, A.P. I; FERRELL, W.H., “No shirt, no shoes, no status: uniforms, distinction and special operations in international armed conflict, Military Law Review 2003, 1-33. 366 Art. 4, G.C. IV; art. 75, A.P. I; BILKOVA, V., “Members of private military and security companies and/as unlawful combatants”, Academy of European law 2009, 1-15. 367 Common art. 3, G.C.; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198.

There is a dual approach in international law towards espionage. It does not engage the responsibility of a state but spies bear the liability for their acts, although they are not regarded as war criminals. This situation is even made more complex due to the fact that a spy who rejoins his forces without being captured is rewarded. In a way, it reflects the double standards of states denouncing the spies of the enemy while maintaining their own agents.368

3.4.6. Saboteurs Besides spies, the status of saboteurs also needs to be clarified. Saboteurs are persons who destroy or damage material, works or installations that add to the efficiency of the enemy’s armed forces. It actually covers all the destruction connected with warfare. Depending on the target and the method used, their acts are either lawful or unlawful. If, for instance, civilian structures are targeted, their mission is unlawful. As for spies, saboteurs can be divided in two groups, namely civilian and military saboteurs. Military saboteurs belong to the armed forces of state, whereas civilian saboteurs do not. If military saboteurs wear uniforms or distinguish themselves from the civilian population, they are to be treated as prisoners of war. It they fail to distinguish themselves, their status is not clear, but it seems that their position is similar to that of spies. Thus, if saboteurs are considered unlawful combatants, they nonetheless enjoy protection since they do not act in a legal vacuum. In international armed conflicts, civilian saboteurs fall under the scope of G.C. IV if they meet the nationality criteria.369 However, their rights of communication can be suspended when saboteurs are detained in occupied territory and when military security requires so. They shall nonetheless be treated with humanity and shall not be deprived of their right of fair and regular trial.370 If they fail to meet these conditions, they will enjoy the protection of art. 75 A.P. I. Military saboteurs cannot rely on the Fourth Geneva Convention, but they can rely on art. 75 A.P. I.371 Saboteurs in international armed conflicts can also invoke art. 3 common to the Geneva Conventions. As for non-international armed conflicts, saboteurs are not mentioned in any treaty. However, the application of common art. 3 to the Geneva Conventions cannot be denied because it constitutes the minimum protection to persons involved in both international and internal armed conflicts.372

368 CHESTERMAN, S., “The spy who came in from the Cold War: intelligence and international law”, Michigan Journal of International Law 2007, 1077-1151. 369 Art. 4, G.C. IV; BILKOVA, V., “Members of private military and security companies and/as unlawful combatants”, Academy of European law 2009, 1-15. 370 Art. 5, G.C. IV. 371 Art. 75, A.P. I; BILKOVA, V., “Members of private military and security companies and/as unlawful combatants”, Academy of European law 2009, 1-15. 372 Common art. 3, G.C.; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198.

Conclusion

As mentioned earlier, international treaty law does not refer to unlawful combatants. As a result, some scholars argued that they are not entitled to protection under international humanitarian law. Suggestions were made that there is a third category of people acting in armed conflicts besides civilians and combatants. These people would act in grey area where no rules of IHL apply.373 This thesis has demonstrated that these claims are not flawless since IHL applies an all-inclusive approach. Everybody fits a category, one is either a combatant or a civilian.374 Unlawful combatants do not act in a legal vacuum.

There are several categories of unlawful combatants. In the first place, civilians who directly participate in the hostilities and lawful combatants who fail to distinguish themselves from the civilian population are classified as unlawful belligerents. Furthermore, members of Al Qaeda and the Taliban, mercenaries, a fraction of the child soldiers, spies and saboteurs undergo the same fate. They participate in hostilities without the entitlement to do so. Therefore, they are not granted prisoner of war status. Nevertheless, unlawful combatants in international armed conflicts receive the protection of the Fourth Geneva Convention. Nonetheless, this will only happen if they meet the nationality criteria set forth in art. 4 G.C. IV.375 However, military spies and saboteurs do not fall under the scope of G.C. IV.376 If unlawful combatants fail to meet the nationality criteria, they can always rely on art. 75 A.P. I. This provision has attained the status of customary international law. States are bound by this stipulation irrespective of the question whether they ratified the instrument or not.377 A third provision available for unlawful combatants is common art. 3 to the Geneva Conventions. As customary international law it constitutes a minimum in both international and internal armed conflicts.378 In addition, unlawful child soldiers can invoke the specific protection of art. 77 A.P.I in international armed conflicts.379 Furthermore, there a some specific instruments that try to ban child soldiers and mercenaries. A common feature of these treaties is that they excel in weak language.380 Since a different legal regime applies to non-international armed conflicts, unlawful combatants cannot invoke the same provisions as in international armed conflicts. They can only rely on common

373 WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. 374 WATKIN, K., “Combatants, unprivileged belligerents and conflicts in the 21st century”, http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (consultation 5 May 2009). 375 Art. 4, G.C. IV; DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. 376 BILKOVA, V., “Members of private military and security companies and/as unlawful combatants”, Academy of European law 2009, 1-15. 377 Art. 75, A.P. I; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 378 Common art. 3, G.C.; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 379 Art. 77, A.P. I; ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306. 380 FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611; ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306.

art. 3 to the Geneva Conventions. 381 Although they are granted a degree of protection, unlawful combatants can be prosecuted for their mere participation in the conflict and when they take direct part in the hostilities, they become lawful military targets.382 For these reasons, the assumption that unlawful combatants act in a grey area or a legal vacuum is erroneous.

A final remark has to be made. This thesis has mainly examined the situation of unlawful combatants from a theoretical point of view. The way rules are applied in practice differs in many cases from the way the drafters meant since there is usually an inconsistency between the rules in the field and the rules in the books. This is also true regarding the situation of unlawful combatants. This assertion is illustrated by the treatment of child soldiers after the civil war in Sierra Leone, as mentioned above. It is especially true for the captured Al Qaeda and Taliban members. Since the U.S. are a major power in the world, they can permit more than other countries without the approval of the international community.

381 Common art. 3, G.C.; VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191-198. 382 DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74.

Dutch summary

Na de aanslagen van 11 september 2001 besloten de Verenigde Staten het terrorisme hard aan te pakken. Ze vielen onder meer Afghanistan binnen om de verantwoordelijken, die zich daar ophielden, te straffen. Verschillende leden van Al Qaeda en de Taliban werden gevangen genomen. Volgens de Amerikaanse regering hadden deze personen geen recht op een behandeling als krijgsgevangene en kregen ze bijgevolg de stempel van onrechtmatig strijder mee. Deze beslissing blies de eeuwenoude discussie over de positie van onrechtmatige strijders in het internationaal humanitair recht nieuw leven in. Volgens sommigen glippen zij immers door de mazen van het net van het internationaal humanitair recht en genieten ze dan ook geen bescherming. Deze thesis toont aan dat dit niet het geval is.

In een eerste deel wordt het onderscheid tussen internationale en niet-internationale gewapende conflicten uit de doeken gedaan omdat voor elk conflict een aparte set van regels is voorzien. De internationale gewapende conflicten worden gedefinieerd in het gemeenschappelijk art. 2 van de Geneefse Conventies (G.C.) en art. 1 van het Aanvullend Protocol I (A.P.). De interne gewapende conflicten vallen enerzijds onder de noemer van het gemeenschappelijk art. 3 G.C. en anderzijds onder die van art. 1 A.P. II.

Het tweede deel van deze thesis is gewijd aan de status en het toepassingsgebied van de belangrijkste categorieën van personen actief in gewapende conflicten, namelijk rechtmatige strijders en burgers. De definitie van rechtmatige strijders is terug te vinden in art. 4 G.C. III en art. 43 A.P. I. Het grote voordeel is dat deze personen bij gevangenname als krijgsgevangenen behandeld worden. Daarnaast mogen ze deelnemen aan de vijandelijkheden en andere strijders elimineren maar ze kunnen zelf ook rechtmatig geliquideerd worden. Burgers daarentegen mogen evenwel niet het doelwit vormen van vijandelijk vuur. Als keerzijde van de medaille mogen ze niet participeren in de vijandelijkheden. Volgens art. 50 A.P. I is iedereen die geen rechtmatig strijder is een burger.

Een derde deel behandelt de situatie van onrechtmatige strijders. Deze categorie beslaat verschillende soorten personen: burgers die deelnemen aan de vijandelijkheden, strijders die zich niet onderscheiden van burgers, leden van Al Qaeda en de Taliban, huurlingen, kindsoldaten, spionnen en saboteurs. Dit zijn personen die deelnemen aan de vijandelijkheden zonder daartoe gerechtigd te zijn. Daardoor kunnen ze niet als krijgsgevangenen worden beschouwd en kunnen ze geen beroep doen op G.C. III. Maar, wanneer ze aan de nationaliteitsvoorwaarden van art. 4 G.C. IV voldoen, vallen ze onder het toepassingsgebied van deze Conventie in internationale gewapende conflicten. Militaire spionnen en saboteurs kunnen in geen geval beroep doen op G.C. IV aangezien zij niet als burgers kunnen worden aangeduid. Als onrechtmatige strijders niet aan de nationaliteitsvoorwaarden voldoen, kunnen ze altijd terugvallen op art. 75 A.P. I. Deze bepaling is gewoonterechtelijk gewaarborgd. Bovendien kan men ook het gemeenschappelijk art. 3 G.C. inroepen. Ook deze bepaling heeft de status van gewoonterecht bereikt en geldt voor zowel internationale als interne conflicten. Onrechtmatige kindsoldaten kunnen zich daarenboven ook beroepen op art. 77 A.P. I. In niet-internationale gewapende conflicten kan men niet dezelfde bepalingen inroepen. Onrechtmatige strijders kunnen enkel aanspraak maken op de bescherming van het gemeenschappelijk art. 3 G.C. Alhoewel ze bescherming genieten onder het internationaal humanitair recht, kunnen ze vervolgd worden voor hun loutere deelname aan de vijandelijkheden. Dit is niet het geval voor rechtmatige strijders. Tevens vormen ze ook rechtmatige doelwitten voor vijandelijk vuur.

References

1. Treaties and resolutions - Hague Convention respecting the laws and customs of war on land, 18 October 1907, League of Nations Treaty Series, vol. 54, p. 435. - Hague Convention respecting the rights and duties of neutral powers and persons in case of war on land, 18 October 1907, League of Nations Treaty Series, vol. 54, p. 540. - Charter of the United Nations, 26 June 1945, United Nations Treaty Series, vol. 1, p. 1. - Common art. 2 and 3, Geneva Conventions, 12 August 1949, United Nations Treaty Series, vol. 75, p. 31. - Geneva Convention relative to the treatment of prisoners of war, 12 August 1949, United Nations Treaty Series, vol. 75, p. 135. - Geneva Convention relative to the protection of civilian persons in time of war, 12 August 1949, United Nations Treaty Series, vol. 75, p. 287. - Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331. - Draft Convention on the prevention and suppression of mercenarism, 13 June 1976, CM 433 Annex I Rev.1. - Convention for the elimination of mercenarism in Africa, 3 July 1977, CM 817 (XXIX) Annex II Rev. 1. - Additional Protocol I to the Geneva Conventions concerning the protection of casualties of international armed conflicts, 8 June 1977, United Nations Treaty Series, vol. 1125, p. 3. - Additional Protocol II to the Geneva Conventions concerning the protection of casualties of non- international armed conflicts, 8 June1977, United Nations Treaty Series, vol. 1125, p. 610. - African Charter on the rights and welfare of the child (11 July 1990), OAU Doc. CAB/LEG/24.9/94 (1990). - Rome Statute of the United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court, 12 July 1998, UN Doc. A/CONF./183/9 (1998). - Convention concerning the prohibition and immediate action for the elimination of worst forms of child labour of 17 June 1999, United Nations Treaty Series, vol. 2133, p. 163. - Resolution 44/25 of the United Nations General Assembly (20 November 1989), UN Doc. A/RES/44/25 (1989). - Resolution 44/34 of the United Nations General Assembly (4 December 1989) UN Doc. A/RES/44/34 (1989). - Resolution 54/263 of the United Nations General Assembly (25 May 2000), UN Doc. A/RES/54/263 (2000). - Resolution 1315 of the United Nations Security Council (14 August 2000), UN Doc. S/RES/1315 (2000). - Resolution 1368 of the United Nations Security Council (12 September 2001), UN Doc. S/RES/1368 (2001).

2. Jurisprudence - ICJ, Military and Paramilitary Activities in and against Nicaragua (the Republic of Nicaragua v. the United States of America), Judgment, ICJ Reports 1986, 14. - ICJ, The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 256. - ICTY, Prosecutor vs. Tadic, decision on the defence motion for interlocutory appeal on jurisdiction, case no. IT-94-1-A (2 October 1995). - ICTY, Prosecutor vs. Delalic et. al., Judgment of the Trial Chamber, case no. IT-96-21-T (16 November 1998). - Ex Parte Quirin, 317 U.S. 1 (1942). - Public Prosecutor vs. Koi et al. (1967), [1968] A.C. 829. - Bin Haji Mohamed Ali et al. vs. Public Prosecutor (1968), [1969] 1 A.C. 430. - Rumsfeld vs. Padilla, 542 U.S. 426 (2004). - Hamdi vs. Rumsfeld, 542 U.S. 507 (2004). - Hamdan vs. Rumsfeld, 548 U.S. 557 (2006).

3. Books - BOSSUYT, M. and WOUTERS, J., Grondlijnen van internationaal recht, Intersentia, Antwerpen, 2005, 1086 p. - BOTHE, M., PARTSCH, K.J. and SOLF, W.A., New rules for victims of armed conflicts: commentary on the two 1977 Protocols additional to the Geneva Conventions of 1949, Martinus Nijhoff Publishers, The Hague, 1982, 746 p. - COGEN, M., Handboek internationaal recht, Kluwer, Mechelen, 2003, 490 p. - DINSTEIN, Y., The conduct of hostilities under the law of international armed conflict, Cambridge university press, Cambridge, 2004, 275 p. - GREEN, L.C., The contemporary law of armed conflict, Manchester University Press, Manchester, 2008, 434 p. - HAYASHI, M.N., “The principle of civilian protection and contemporary armed conflict” in H.M. HENSEL (ed.), The law of armed conflict: constraint on the contemporary use of military force, Ashgate Publishing Ltd., Aldershot, 2005, 105-129. - KWAKWA, E., The international law of armed conflict: personal and material fields of application, Kluwer Academic Publishers, Dordrecht, 1992, 208 p. - MOIR, L., The law of internal armed conflict, Cambridge University Press, Cambridge, 2002, 307 p. - PEJIC, J., “Unlawful/enemy combatants: interpretations and consequences” in M. N. SCHMITT and J. PEJIC (eds.), International law and armed conflict: exploring the fault lines: essays in honour of Yoram Dinstein, Martinus Nijhoff Publishers, Leiden, 2007, 335-355. - SCHINDLER, D. And TOMAN, J., The laws of armed conflicts, Martinus Nijhof Publishers, The Hague, 1988, 3-23. - SHAW, M.N., International law, Cambridge University Press, New York, 2008, 1542 p.

4. Periodicals - ABBOTT, A.B., “Child soldiers: the use of children as instruments of war”, Suffolk Transnational Law Review 2000, 1-30. - ACKE, A., “Kindsoldaten in de juridische teksten”, Internationaal Humanitair Recht in de Kijker 2007, 63-78. - ALDRICH, G.H., “Civilian immunity and the principle of distinction: guerrilla combatants and prisoner of war status”, American University Law Review 1982, 1-8.

- ALDRICH, G.H., “The Taliban, Al Qaeda and the determination of illegal combatants”, The American Journal of International Law 2002, 891-898. - AZUBUIKE, L., “Status of Taliban and Al Qaeda soldiers: another viewpoint”, Connecticut Journal of International Law 2003, 1-25. - BIALKE, J.P., “Al Qaeda and Taliban unlawful combatant detainees, unlawful belligerency and the international laws of armed conflict”, Air Force Law Review 2004, 1-64. - BILKOVA, V., “Members of private military and security companies and/as unlawful combatants”, Academy of European law 2009, 1-15. - CASEY, A.L., RIVKIN JR., D.B. and BARTRAM, D.R., “Unlawful belligerency and its implications under international law, Federalist Society White Paper 2003, 1-22. - CHESTERMAN, S., “The spy who came in from the Cold War: intelligence and international law”, Michigan Journal of International Law 2007, 1077-1151. - DETTER, I., “Symposium on the new face of armed conflict: enemy combatants after Hamdan v. Rumsfeld: the law of war and illegal combatants”, George Washington Law Review 2007, 1050-1121. - DORMANN, K., “The legal situation of unlawful/unprivileged combatants”, International Review of the Red Cross 2003, 45-74. - DUCHEINE, P.A.L., “Rechtsregimes tijdens militaire operaties”, Ars Aequi 2009, 490-497. - FALLAH, K., “Corporate actors: the legal status of mercenaries in armed conflict”, International Review of the Red Cross 2006, 599-611. - FERRELL, W.H., “No shirt, no shoes, no status: uniforms, distinction and special operations in international armed conflict, Military Law Review 2003, 1-33. - FORSYTHE, D.P., “Legal management of internal war: the 1977 Protocol on non-international armed conflicts”, The American Journal of International Law 1978, 272-295. - GOLDMAN, R.K. and TITTEMORE, B.D., “Unprivileged combatants and the hostilities in Afghanistan: their status and rights under international humanitarian and human rights law”, ASIL Task Force Papers 2002, 1-58. - HARRIS, G.C., “Terrorism, war and justice: the concept of the unlawful enemy combatant”, Loyola of Los Angeles International and comparative Law Review 2003, 1-13. - HONIGSBERG, P.J., “Chasing enemy combatants and circumventing international law: a license for sanctioned abuse”, UCLA Journal of International Law and Foreign Affairs 2007, 4-95. - JAMISON, M.A., “Detention of juvenile enemy combatants at Guantanamo Bay: the special concerns of children”, U.C. Davis Journal of Juvenile Law and Policy 2005, 1-28. - LIU, H.-Y., “Leashing the corporate dogs of war: the legal implication of the modern private military company”, Journal of Conflict and Security Law 2009, 1-28. - MEISELS, T., “Combatants- lawful and unlawful”, Law and Philosophy 2007, 31-65. - MERON, T., “The Martens clause, principles of humanity and dictates of public conscience”, The American Journal of International Law 2000, 78-89. - MIRELES, M.S. and RAVAGAN, S., “The status of detainees from Iraq and Afghanistan conflicts”, Utah Law Review 2005, 1-51. - RENTELN, A.D., “The child soldier: the challenge of enforcing international standards”, Whittier Law Review 1999, 1-12. - ROSEN, D.M., “Child soldiers, international humanitarian law and the globalization of childhood, American Anthropologist 2007, 296-306. - SCOTT, R.D., “Territorially intrusive intelligence collection and international law”, Air Force Law Review 1999, 1-9. - SHUMATE, B., “New rules for a new war: the applicability of the Geneva Conventions to Al Qaeda and Taliban detainees captured in Afghanistan”, New York International Law Review 2005, 1-86.

- VARK, R., “The status and protection of unlawful combatants”, Juridica International 2005, 191- 198. - WATKIN, K., “Warriors without rights? Combatants, unprivileged belligerents and the struggle over legitimacy”, HPCR Occasional Paper Series 2005, 1-77. - WELLS, S.L., “Crimes against child soldiers in armed conflict situations: applications and limits of international humanitarian law”, Tulane Journal of International and Comparative Law 2004, 285- 213.

5. Other - CHOVANEC, O., “Unlawful combatants: war in Afghanistan and the legal situation of captured Taliban and Al Qaeda belligerents”, http://web.abo.fi/instut/imr/courses/webinfo/terrorism2007/essays/UNLAWFUL%20COMBATANTS .doc (consultation 5 May 2009). - DRUBA, V., “The problem of child soldiers”, http://www.springerlink.com/content/x738x20g12206kg0/ (consultation 2 April 2010). - ICRC, Commentary to art. 6, G.C. IV, § 1, http://www.icrc.org/ihl.nsf/COM/380- 600009?OpenDocument (consultation 3 Mai 2010). - ICRC, Commentary to art. 44, A.P. I, § 1688, http://www.icrc.org/ihl.nsf/COM/470- 750054?OpenDocument (consultation 3 Mai 2010). - ICRC, “Guantanamo Bay: overview of the ICRC’s work for internees”, http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList74/951C74F20D2A2148C1256D8D002CA8DC (consultation 9 May 2010). - ICRC, “How is the term armed conflict defined in international humanitarian law?: International Committee of the Red Cross, opinion paper, March 2008”, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/armed-conflict-article-170308/$file/Opinion-paper- armed-conflict.pdf (consultation 6 December 2009). - MACHEL, G., “The impact of armed conflict on children”, http://saiv.net/SourceBook/Storage/documents/doc_armedconflict_children.pdf (consultation 24 March 2010). - MICCOLI, M., “Mercenaries: unlawful soldiers”, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=279631 (consultation 15 March 2010). - ROMERO, J.A., “The Special Court for Sierra Leone and the juvenile soldier dilemma”, http://www.law.northwestern.edu/journals/jihr/v2/8/8.pdf (consultation 29 March 2010). - STEWART, J.G., “Towards a single definition of armed conflict in international humanitarian law: a critique of internationalized conflict”, http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5PYAXX/$File/irrc_850_Stewart.pdf (consultation 6 December 2009). - VANT, M., “In legal limbo? The status and rights of detainees from the 2001 war in Afghanistan”, http://adt.waikato.ac.nz/uploads/approved/adt-uow20070312.120934/public/01front.pdf.pdf (consultation 4 April 2010). - WALTHER, P., “The legal status of private contractors under international humanitarian law”, http://www.guardian-gbs.com/Presse/afhandling.pdf (consultation 6 April 2010). - WATKIN, K., “Combatants, unprivileged belligerents and conflicts in the 21st century”, http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (consultation 5 May 2009). - WHITE HOUSE PRESS OFFICE, “Fact sheet”, 7 February 2002, http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf (consultation 28 April 2010). - X., “NATO’s role in Afghanistan”, http://www.nato.int/cps/en/natolive/topics_8189.htm (consultation 16 April 2010).

- X., “Q&A: closing Guantanamo”, http://news.bbc.co.uk/2/hi/americas/7844176.stm (consultation 23 April 2010). - X., “Editorial: gitmo is primo”, http://www.washingtontimes.com/news/2010/apr/20/gitmo-is-primo/ (consultation 24 April 2010).