STATUS OF PERSONS AND

PROTECTION OF PERSON IN
ARMED CONFLICTS
(WEEK III)

University of Khartoum, Law faculty, Semester 4

 The Fundamental Distinction between Civilians and Combatants

The basic rule underlying International Humanitarian Law (IHL), i.e. that even in an armed
conflict the only acceptable action is to weaken the military potential of the enemy, with
various principles off war meant to distinguish and limit objects and methods to achieve
this balance. Therefore, it becomes necessary for warring parties to be able to clarify and
accept those who may take part in direct hostilities and as such be a target of attacks, and
what rights and obligations is assigned to them once they do. The primary distinction
remains of the two categories of combatants and civilians, whom both have different
criteria’s that establishes who they are and at the same time assigns their “privileges” and
responsibilities.

A. DEFINITION AND CHARACTERISTICS OF COMBATANTS

1. Definition of "combatants": Combatants are members of the fighting forces of the

belligerent parties. In principle, therefore, all members of the armed forces of a
party to an international armed conflict are combatants, except medical and
religious personnel assuming exclusively humanitarian functions. The only weapon-
bearers who may be regarded as combatants without being members of the armed
forces are participants in a levée en masse (only example being Crete). Persons
fighting outside these categories, such as mercenaries or civilians taking a direct
part in hostilities, are not entitled to combatant status. As such the following
criterias classify who combatants are:
(a) Members of the armed forces: The armed forces of a party to a conflict comprise “all
organized armed forces, groups and units which are under a command responsible
to that Party for the conduct of its subordinates.” This broad and functional concept
of armed forces has evolved since the adoption of the Hague Regulations, which
already recognized that the “laws, rights, and duties of war” applied not only to the
regular armed forces, but also to irregular militia and volunteer corps, provided
 that they fulfilled four conditions assimilating them to regular armed forces: (1)
they were commanded by a person responsible for his subordinates; (2) they had a
fixed distinctive emblem recognizable at a distance; (3) they carried arms openly;
and (4) they conducted their operations in accordance with the laws and customs of
war. The requirements of visible distinction from the civilian population and respect
for IHL are no longer considered to be constitutive elements of the armed forces per
se, but have become individual obligations, the violation of which may entail
consequences for the individual combatant, most notably loss of the privilege of
combatancy and prisoner-of-war status. In sum, today, all armed forces, groups or
units showing a sufficient degree of military organization and belonging to a party
to a conflict must be regarded as part of the armed forces of that party. Lastly, as in
accordance with Article 4A1-3 & 6 GCIII & 43 (2), the three categories of combatants
belonging to armed forces would be members of the armed forces, militias and
volunteer corps which includes resistance movements, and militias which are
connected to the armed forces of a State.

(b) Participants in a levée en masse: In IHL, the term levée en masse is used to describe
the 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. As soon as a levée en masse becomes
continuous and organized, it is no longer regarded as such, but as an organized
resistance movement. Participants in a levée en masse are the only armed actors
regarded as combatants even though, by definition, they operate spontaneously and
lack sufficient organization and command to qualify as members of the armed
forces. All other persons who take a direct part in hostilities on a merely
spontaneous, sporadic or unorganized basis must be regarded as civilians.

2. Combatant status and combatant’s privilege:

For the purposes of the principle of distinction, the most important consequence associated
with combatant status is the loss of civilian status and of protection against direct attack.
Moreover, combatant status entails the “combatant’s privilege,” namely “the right to
participate directly in hostilities” on behalf of a party to an international armed conflict.
The combatant’s privilege as such has no immediate consequences in terms of the principle
of distinction but is of greater relevance for the status and rights afforded to an individual
after capture by the enemy. Combatant status and combatant’s privilege are exclusive to
situations of international armed conflict and are not provided for in IHL governing non-
international armed conflicts. This includes the prisoner of war status, and immunity from
prosecution.

3. “Unprivileged” combatants:

The term “unprivileged combatants” is used to refer to an individual who directly

participates in an international armed conflict but who either does not have or has lost
their combatant status. As a result, they are not entitled to combatant privilege
(i.e. immunity from prosecution for lawful acts of war) and do not benefit from prisoner of
war status if they fall into enemy hands. Sometimes the term is equally used to designate
(fighting) members of a non-state armed group in a non-international armed conflict.
Therefore, not everyone taking up arms in an international armed conflict necessarily
qualifies for the privilege of combatancy. Members of the armed forces may lose that
privilege for failing to distinguish themselves from the civilian population. Others –
mercenaries, private contractors, civilian intelligence agents, organized criminals, other
civilians – may directly participate in hostilities without being entitled to the privilege in
the first place. Strictly speaking, IHL does not prohibit anyone from taking up arms in a
situation of armed conflict; it simply requires that all those doing so comply with its rules
on the conduct of hostilities.

4. “Unlawful” combatants:
Not mentioned in the Hauge or Geneva Conventions. “Unlawful” combatants is not actually
a legal term, rather a term used by the USA during the “war against terror”. The term aims
to create a third category other than that of combatant and civilian and alter their
privileges, for instance do not grant them POW status. It must be noted that this is
presently not accepted under IHL.

B. DEFINITION AND CHARACTERISTICS OF COMBATANTS

1. Definition of "civilians" and "civilian population":

In IHL, the civilian population is negatively (a contrario) defined as comprising all persons
who are neither members of the armed forces of a party to the conflict nor participants in a
levée en masse. Thus, the definition also includes civilians accompanying the armed forces
without being incorporated therein, such as war correspondents and, as a general rule,
private contractors and civilian intelligence or law enforcement personnel, even if some of
them may be entitled to prisoner-of-war status upon capture. On the other hand, as has
been shown, all armed forces, groups and units showing a sufficient degree of military
organization and operating de facto on behalf of and with the agreement of a party to the
conflict must be regarded as part of its armed forces and therefore do not qualify as
civilians, irrespective of their entitlement to prisoner-of-war status or the combatant’s
privilege, and regardless of their denomination in domestic law. If there is any doubt about
a person’s civilian status, that person must be considered a civilian.

2. Civilian status:

Civilians cannot be targeted for any purposes and cannot be indiscriminately attacked as
part of a military operation. Civilians are not granted immunity from prosecution if they
choose to participate in hostilities and can be tried under national law. Only minimal
guarantees such as fair trial are afforded to them.
Please note, the basic (or golden) rule in situations of armed conflict, is that civilians are
entitled to protection against direct attack “unless and for such time as they take a direct
part in hostilities.” In other words, for the duration of their direct participation in
hostilities, civilians may be directly attacked as if they were combatants.

CIVILIANS COMBATANTS

all persons other than combatants members of armed forces or participants of a

levée en masse

Do not take a direct part in hostilities Take a direct part in hostilities

Do not have the right to take a direct Have the right to take a direct part in

part in hostilities hostilities (but have the obligation to

(but have the right to be respected) observe IHL)

May be punished for their mere May not be punished for their mere

participation in hostilities participation in hostilities

Are protected because they do not Are protected when they no longer

participate: participate:

-as civilians in the hands of the enemy -if they have fallen into the power of the enemy

-against attacks and effects of -if wounded, sick or shipwrecked

hostilities -if parachuting out of an aircraft in distress

-are protected against some means and methods

of warfare even while fighting
 C. PRISONERS OF WAR

Those who have prisoner-of-war status enjoy prisoner-of-war treatment. Prisoners of war
may be interned without any particular procedure or for no individual reason. The purpose
of this internment is not to punish them, but only to hinder their direct participation in
hostilities. Any restriction imposed on them under the very detailed regulations of
Convention III serves only this purpose. Due to the inter-State aspect and in their own
interest, prisoners of war cannot renounce their rights or status.

Treatment and conditions of internment (detention)

(a) Responsibility and humane treatment:

According to the Third Geneva Convention, prisoners of war “are in the hands of the
enemy Power, but not of the individuals or military units who have captured them.”
Thus, ultimate responsibility for the treatment given to prisoners of war lies with
the party to the conflict detaining them.

(b) Conditions of internment:

The detaining power may subject prisoners of war to internment or restrict their
movements, but it may not hold them in closed confinement or penitentiaries except
where necessary to safeguard their health or for the purpose of penal and
disciplinary sanctions. Prisoners of war should be interned in groups according to
their nationality, language and customs, and with the comrades with whom they
were serving at the time of capture.

a. Basic needs:
The detaining power must provide prisoners of war in its custody with the
necessary food, water, shelter, clothing and medical care free of charge, while taking
into account the local climate, the nature of their daily work, and their habits and
customs. Prisoners of war must be accommodated under conditions comparable to
those of the forces of the detaining power. Where female prisoners of war are held
in the same camps as male, separate dormitories and sanitary facilities must be
provided for them. Within the financial means available to them, prisoners of war
must also be allowed to procure additional foodstuffs, soap and tobacco and similar
articles at local market prices.

b. Labour and financial resources

In principle, prisoners of war who are fit may be compelled to work, taking into
account their age, sex, rank and physical condition. Officers or persons of equivalent
status may not be compelled to work, and non-commissioned officers may be
required to carry out supervisory tasks only. Both may, however, request that
suitable work be found for them..

c. Relations with the world outside

It is of paramount importance that prisoners of war be able to maintain relations

with the world outside, most notably with their families and their country of origin.
Hence IHL requires that individual prisoners of war be enabled to send a capture
card rapidly to their family and to the ICRC's Central Tracing Agency, informing
them of their capture, postal address and state of health.

Relations with the authorities, requests, complaints and representatives

Prisoners of war have an unrestricted right to make requests and complaints

regarding their conditions of internment to the detaining power, the representatives
of the Protecting Power or the ICRC delegates.
D. STATUS OF PERSONS IN NIACs

In a non-international conflict, there are two categories of persons possessing a

different status under IHL: fighters and civilians. Fighters are not to be confused
with combatants, as they do not enjoy the same privileges rights. Fighters are
defined as those person who belong to an organisation and which they constitute
the armed forces within that organization. Fighters have no immunity, and do not
enjoy POW status. They can be tried under domestic (national) law and imprisoned.
IHL applications under NIACs is limited and merely compromises of customary
international law along with additional protocol II. The “golden rule” is applicable to
fighters who DPIH, and can be legitimately targeted during a conflict. It is important
to note that fighters have no international and national status and once they drop
their weapons they regain their civilian status.