International humanitarian law and its application on conflict

2. • 2.1 Who is a combatant? GC III art.4 & API art. 43 (2)
• All members of the armed forces of a party to a conflict (other than medical personnel & chaplains …)
• All members of the armed forces – Principle
• Medical personnel and chaplains – Exceptions
• Therefore, membership to armed forces is a prerequisite for combatant status – principle
• The armed forces of a certain state may Include:
• 1) members of regular armed force art. 4/a/1 GCIII
• 2) members of irregular armed force art. 4/a/2 GCIII, art 43/1 API
• 3) Members to war of WNLM art. 1 (4), 43, & 44 (3) API
• 4) participants in levee en masse, art. 4/a/6 GCIII & 44 (3) API
• Requirements art 4/a/1 and 4/a/6 GCIII art 44/3API
• Shall be under a command responsible to the parties
• Shall be subject to an internal disciplinary system, IHL
• Shall have fixed visible sign/uniform
• Shall carry arms openly

3. • Are all combatants required to fulfill all these requirements?
• The ff can not distinguish themselves as given under art 4(a)(2) GCIII
• members to WNLM: guerilla fighter
• participants in levee en masse
• Are members to WNLM and pparticipants in levee en masse exempted from all the requirements? art.
4(6)GCII & 44 (3)API
• they must comply with IHL
• must carry arms openly during each military engagement- each military attacks and preparation,
• 2.2. Rights of Combatants
• Primary status
• the right to participate directly in hostilities
• they may be attacked; may be killed
• Secondary status art 43 API
• the right to enjoy combatant immunity, POW status - GC III

4. • 2.3 Duties of Combatants
• The main aim of IHL is to protect civilian from the effects of AC
• To that end, it provides a duty to on combatants
• 1. Compliance with rules applicable in armed conflict
• What is the consequence of violating such rules?- art 43/2 API
• Prosecution
• 2. Duty to distinguish themselves from civilians, art 4(a)(2) & 44/3 API
• to promote the protection of the civilian
• What is the consequence of violating rules of hostilities by the combatants?
• loss of POW status art 43/2, 44 (3) & (4) API
• 2.4 Unlawful / unprivileged Combatants
• a person taking a direct part in hostilities without being entitled to do so
• 1. Combatants who fail to follow the laws of war
• What is secondary status?
• 2. Civilians who take part directly in hostilities art 51/3 API
• Exception - levee en masse

5. • 3. spies art. 46 API
• A person who wearing civilian clothes, infiltrate in to enemy territory to collect information or destroy designated
objects
• A person can not be civilian and soldier at a time
• Upon capture they are not entitled for POW status
• 4. Mercenaries art, 47/1 API
• professional soldiers who serve for money, do not have combatant and POW status
• unlawful combatants who can be held criminally liable for his actions
• 5. Terrorists
• Terrorists are not entitled to combatant status
• IHL prohibits acts of terrorism, art. 51(2) API, art. 13(2) APII, art. 33 of GCIV
• Acts of terrorism include those acts which provoke terror among individuals, groups and as well as the civilian
population as a whole
• 2.5 Retained personnel - art.28 GCI, art. 33 GC III]
• medical personnel & chaplains, although members of armed forces, are not combatants
• Upon capture they are not POWs, but entitled to receive the same treatment as POWs
• Retained by the detaining power with a view to provide medical care or religious service to POWs
• NOT lawfully be compelled to do work other than their professional work

6. • 2.6 Are unlawful / unprivilaged combatants protected? Art. 45(3) and 75 AP I
• These categories of person are not entitled to combatant status? Implication??
• they do not have a POW status
• They have to be prosecuted for engaging in AC
• Does tis mean that their prosecution is arbitral?
• Thy have the right to humane treatment and to a fair trial, art 75 API
• 2.7 Determination of Status (whether POWS)
• It may be difficult to determine the status of a detained persons
• The presumption :Art.45 (1), AP I and Art. 5, GC III
• A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to
be a POW & thus must be treated as POWs until status is determined by a competent tribunal.
• 2.8 Combatant status in NIAC
• Law of NIAC does not deal with combatant, and therefore no POW status
• Members of rebel armed groups/forces remain liable to prosecution under domestic law
• However, any person detained in NIACs must be treated humanely:
• Common Art.3, GC and Art.4, AP II

8. • 3.1 Who is a prisoner of war?
• As a rule combatants
• GC III: Captured combatants are entitled to POW status; and enjoy certain rights & protections
• Additional persons who enjoy POW status,
• A. there are Persons who are not combatants but entitled to POW status
• GC III, Art. 4(4) and (5))
• B. there are persons who are not combatants and POWs, but entitled, to the same benefits and protection as
POWs,
• Medical and religious personnel who have fallen into the hands of an adverse party GCI, Art. 28(2); GC
• Retained person??
• Is there any conditions that entitled spy and mercenaries to POW status? See Art 46 and 47 API
• 3.2 What is POW status? Secondary status
• Is to be combatant a crime?
• Combatants will not be prosecuted for engaging in AC
• This protection emanated from the saying “It is sweet and honorable to die for the father land.”
• One cannot be held accountable for having defended his country

9. • 3.3 Internment of POWs
• If being a combatant is not a crime? What is the purpose of detaining POWs?
• For the sole purpose
• to hinder their direct participation in hostilities & to protect them
• May be tried for:
• unlawful pre-capture acts
• acts they commit while in captivity
• Tried as per the applicable international law or the national law of the detainee power
• Does a combatants always enjoy POW status?
• What are the situations for the denial of such status?
• Failure to distinguish, art 44/3 and 4 API
• Engaging in espionage - art 46 API
• 3.4 Treatment of unlawful combatants, art. 75 API
• Combatants who loss their POW status, spy, mercenaries…
• Shouldn’t be subject to arbitrary treatment
• they have the right to fair trial

10. • 3.5 Rights, protection and treatment of POWs
• POWs enjoy their right from the time they are captured until they are repatriated
• Secondary status - combat immunity
• is not available always – may be lost
• unlawful pre-capture acts or unlawful acts they commit while in captivity
• Protection from inhuman treatment (Art 13 GC III)
• shall at all times be treated humanely
• the detaining power shall treat POWs humanely
• arbitrarily treatment is prohibited
• Protection from Any measures of reprisal
• reprisal against prisoners of war are forbidden without exception
• POWs enjoy their right from the time they are captured until they are repatriated
• Protection from torture other sever ill-treatment
• are considered as war crimes
• Cannot be compelled to provide further information except personal status like name, date of birth, rank
etc
• Entitled for capture card so that families know the whereabouts through the ICRC.

11. • Protection from discriminatory measures
• the Equal treatment of POWs , art. 16GCIII
• the Detaining Power has a duty to treat POWs without any adverse distinction on thee bases of any
grounds
• What is the rule of favorable treatment under art 14 GCII?
• Is the prohibited grounds of discrimination in art. 16 enumerative/ exhaustive?
• When does the protection to a POW start and end? Art. 5 of GCIII
• from the time they fall into the power of the enemy and until their final release and repatriation
• 3.6 Repatriation of Prisoners of War
• When the reason for the confinement cease, POWs must be released and repatriated without delay
• Release and repatriation may takes place during hostilities
• Severely wounded and sick must be repatriated without delay as soon as they are fit to travel, Art. 109
GCIII
• the parties to the conflict may repatriate POWs on humanitarian grounds
• the parties to the conflict may also repatriate POWs in a reciprocal basis by means of exchange of POWs
• Release and repatriation may also takes place at the end of hostilities art. 118 &119 GCIII
• What if POWs are not happy with the repatriation?

12. • 3.7 Duties of POWs?
• the duty to give minimum amount of information art. 17
• Regarding his surname, first names and rank, date of birth…
• Does such duty include a duty to give military information?
• What is the consequence of denial of such information by POWs?
• The duty to show identity card when demanded
• to comply with the orders they are given by their superior who are themselves POWs
• Duty to respect the laws, regulations & orders of the detaining power
• May be required to work if they are freely consented to do the job. 21ff GCIII
• 3.8 NIAC
• The law applicable in NIAC does not foresee a combatant’s privilege
• the right to participate in hostilities and impunity for lawful acts of hostility is not recognized
• Common Article 3 and AP II
• Parties to a NIAC are under no obligation to set their prisoners free during or after hostilities
• If they do so, it will be entirely at their discretion or under special agreements