Thesis

PANEURÓPSKA VYSOKÁ ŠKOLA FAKULTA PRÁVA

DIPLOMOVÁ PRÁCA FP-13466-9339

2015

Bc. Nina PÚPALOVÁ

PANEURÓPSKA VYSOKÁ ŠKOLA FAKULTA PRÁVA

NÁZOV PRÁCE FP-13466-9339

DIPLOMOVÁ PRÁCA

Študijný program:

Právo

Pracovisko (ústav):

Ústav medzinárodného a európskeho práva

Vedúci diplomovej práce:

prof. JUDr. Dalibor Jílek, CSc.

Bratislava 200915

Titul PRIEZVISKO

PANEURÓPSKA VYSOKÁ ŠKOLA FAKULTA PRÁVA

Zadanie záverečnej práce Autorka práce: Študijný program: Študijný odbor: Evidenčné číslo: ID študenta Typ záverečnej práce: Ústav: Jazyk práce: Meno a priezvisko školiteľa: Názov práce:

Bc. Nina Púpalová Právo 3.4.1 Právo FP-13466-9339 9339 Diplomová práca Ústav medzinárodného a európskeho práva anglický prof. JUDr. Dalibor Jílek, CSc. Modalities governing the loss of civilian protection in armed conflicts

Anotácia: Normy mezinárodního humanitárního práva upravují dvě formy účasti v nepřátelství: přímou a nepřímou. K otázce přímé a nepřímé účasti vydal Mezinárodní výbor Červeného kříže interpretační dokument v roce 2009. Otázka se také stala objektem zájmu jednoho z čísel odborného časopisu European Journal of International Law v roce 2013. Mezinárodní smlouvy o mezinárodním humanitárním právu coby leges speciales vymezují význam výrazu „civilista“. Kdežto sousloví „účast v nepřátelství“, ať přímá nebo nepřímá vysvětluje shora zmíněný interpretační dokument. Student/ka musí skoumat spúsoby straty ochrany civilistú, jako z temporálneho i z personálního hlediska. Dále musí vedle mezinárodních smluv zkoumat praxi států a rozhodnutí mezinárodních trestních tribunálů a mezinárodních i vnitrostátních soudů.

Schvaľujem: Vedúci ústavu: __________________________ Dátum schválenia:

Prehlásenie Prehlasujem, že som

diplomovú práca vypracovala samostatne, úplný zoznam

použitých prameňov uvádzam v zozname literatúry a zdroje som využil spôsobom vo vede obvyklým. .................................... Nina Púpalová

Poďakovanie

Na tomto mieste by som sa rada poďakovala svojmu vedúcemu diplomovej práce, prof. Daliborovi Jílkovi, za cenné pripomienky, rady a čas, ktorý mojej práci venoval.

Abstrakt Bc. Nina Púpalová, Modalities governing the loss of civilian protection in armed conflicts, Ústav medzinárodného a európskeho práva, Paneurópska Vysoká škola, Fakulta práva, vedúci práce prof. JUDr. Dalibor Jílek, CSc., Bratislava 2015

Cieľom tejto záverečnej práce je prezentácia spôsobov straty ochrany civilistu v ozbrojenom konflikte. Pre účel predstavenia témy, vysvetlím definičný rozdiel medzi kombatantmi a civilistami a poukážem na súčasné tendencie moderného vojnového konfliktu potierať toto základné rozlíšenie. Najprv je mojim zámerom vysvetliť negatívnu definíciu civilistu a vysvetliť všeobecný účel humanitárneho práva, ktorý spočíva v ochrane čo najväčšieho záberu osôb počas ozbrojeného konfliktu. Predkladám termín ochrany civilistov podľa interpretácie Medzinárodnej komisie červeného kríža. V druhom rade vysvetľujem potrebu interpretácie ochrany civilistu v kontexte moderných metód boja. Zmeny vo vedení vojny sú následne zhrnuté. Súčasne kladiem dôraz pozadie asymetrického vedenia boja. Následne dávam do pozornosti čitateľovi motiváciu neštátnych účastníkov vojny zúčastňovať sa boja so statusom civilistu. Po tretie a aj v najväčšom rozsahu sa práca sústreďuje na spôsoby straty právnej ochrany civilistu pomocou právneho interpretovania priamej účasti. Spôsob straty ochrany je vysvetlený na základe časovej a osobnej pôsobnosti priamej účasti. V rámci analýzy časovej pôsobnosti, rozoberám rozdielne interpretácie pre individuálnych civilistov a členov militantných skupín. V analýze personálnej pôsobnosti vyberám tri skupiny nezákonných kombatantov: žoldnierov, súkromné vojenské spoločnosti a dobrovoľné ľudské štíty, a testujem právne normy ktoré tvoria podmienky pre stratu ochrany proti priamemu útoku.

Kľúčové slová: medzinárodné humanitárne právo, priama účasť v ozbrojenom konflikte, princíp rozlíšenia, strata civilnej ochrany, asymetrcké motódy boja, definícia civilistu, ozbrojené skupiny, žoldnieri, súkromné vojenské spoločnosti, dobrovoľné ľudské štíty

Abstract Nina Púpalová, Modalities governing the loss of civilian protection in armed conflicts, Department of International and European Law, Pan-European University, Faculty of Law, supervisor prof. JUDr. Dalibor Jílek, CSc., Bratislava 2015

The aim of this thesis is to present the different modalities of loss of civilian protection in armed conflicts. To introduce the topic I explain the difference between civilians and combatants and point out the modern tendencies of blurring this distinction in contemporary warfare. Firstly, I intent to explain the negative definition of civilians and point out the goal of humanitarian law to protect the widest scope of persons possible. By introducing the definition of a civilian, I lay out to the notion of civilian protection accordingly to the interpretation of the ICRC on the notion of direct participation in hostilities. Secondly, I explain the need of interpretation of civilian participation in the context of modern methods of combat. The change in leading war is then summarised and I highlight the background of asymmetric warfare. Then, I put forward the motivation of non-state actors to participate in hostilities under civilian status. Thirdly and most importantly, the thesis concentrates on modalities of loss of protection by exploring the legal basis for direct participation in detail. The modality of loss of protection is then presented accordingly to the temporal and personal scope of direct participation. By elaborating the temporal ambit, I discuss different interpretations for individual civilians and members of para-militant groups. In analysis of the personal ambit, I depict three recognised groups of unlawful combatants: mercenaries, private military contractors and voluntary human shields; and challenge legal norms that create the conditions for the loss of protection against direct attack.

Key words: international humanitarian law, direct participation in hostilities, principle of distinction, loss of civilian protection, asymmetric warfare, definition of civilian, non-state armed groups, mercenaries, private military contractors, voluntary human shields

Table of contents List of abbreviations

8

Introduction

9

1.Civilians under the law of armed conflicts

11

1.1

Principal of distinction

11

1.2

Protection against direct attack

13

2.Civilians in modern armed conflicts

17

2.1

Character of modern armed conflicts

17

2.2

Involvement of civilians on the battlefield

19

3.Modalities governing the loss of protection against direct attack

20

3.1

Temporal scope and the meaning of ‘for such time’

20

3.1.1

Individual participation

21

3.1.2

Participation based upon membership in an armed group

24

3.2

Personal scope

27

3.2.1

Mercenaries

29

3.2.2

Private military contractors

32

3.2.3

Voluntary human shields

38

Conclusion

45

List of references

46

List of abbreviations Additional Protocol I.

I Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)

Additional Protocol II.

AP II Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)

CCF

Continuous Combat Function

DPH

Direct participation in hostilities

Geneva Convention III.

GC III Geneva Convention (III) relative to the Treatment of Prisoners of War (1949)

Geneva Convention IV.

GC IV Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949)

IAC ICC ICRC ICTY

International armed conflict International Criminal Court International Committee of the Red Cross International Criminal Tribunal for the former Yugoslavia International humanitarian law Non-international armed conflict Law of armed conflict Organised armed group Prisoner of War

IHL NIAC LOAC OAG POW

8

1 Introduction Contemporary armed conflicts do not more resemble classic wars as they are illustrated in history books. The battle happens often in the centre of civilian environment and the warfare has accustomed its method of combat to the phenomenon of civilian participation in hostilities. For my final diploma thesis, I have chosen a topic concerning the notion of direct participation in hostilities and its implication on civilian protection against direct attack in armed conflicts.

The publication of the ICRC’s Interpretative Guidance on the Notion of Direct Participation in Hostilities has provided a new perspective to analysis of civilian participation in armed conflicts. The missing legislation leaves the notion of direct participation to be interpreted by analogy of the fundamental principles of humanitarian law and grants the academic and professional floor with space for versatile approach to its interpretation. With my thesis, I want to try to introduce the polarised interpretations and give modest glance to their practical application.

My goal is not to follow one legal opinion but rather the explanation of the differences and their practicality in modern warfare situations. In order to present the distinctions of civilians, combatants and some particular group of non-combatants, I shall advert to the aspect of time and personal occupation of certain civilians. I have especially chosen mercenaries who are usually professional soldiers unfit to compare themselves to members of armed forces. Then I depicted private contractors, since the national armies more and more outsource combatant work from private industry. Finally, I describe the nation of voluntary human shields who bring the recourse of war to attention of media at most. In both temporal as personal aspect of direct participation, I try to analyse the legal protection of civilians. Conclusively, I try to determine the possibility of loss of civilian protection, either conditioned by duration of direct participation or by the roles that civilians nowadays identify themselves with on the battlefield.

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1. Civilians under the law of armed conflicts Civilian population becomes the victim of any armed conflict unfolding in its imminent distance. Its presence near battlefields, whether optional or not, poses a great risk individual civilians. Therefore, it has been inevitable for the humanitarian law to develop in a course of protection for the most vulnerable at the time of war. The distinction between combatants and civilians is crucial for this protection. A definition of a civilian as such has never been adopted and the key to make the distinction possible has been determined by the definition of a combatant. Thus by simple analogy, all who do not fall within the category of a combatant are civilians. The negative definition enables an approach that encompasses a broader mass of persons and grants protection against dangers arising from military operations in a larger scope. The First Additional Protocol to the 1949 Geneva Conventions has adopted a definition of civilians as persons who are not members of the armed forces. 1 Regardless of whether a definition uses the collective term ‘civilian population’ or the individual one, ‘civilians’, the opposition to the notion of a combatant 2 is crucial for establishing this status and safeguarding of the protection that is attributable to the group. In order for civilians to enjoy their protection against attack, they must be distinguished from the lawful military targets accordingly to the principle of distinction. The only exception to the definition of civilians, also identified by international law, is the legal status of laveé en masse. This category implies to inhabitants of an unoccupied territory. In case of an invasion the civilian population is free to take up arms in order to resist its enemy and while doing so, the fighting civilians are considered to be lawful combatants. The exceptional phase of switching statuses is conditioned by carrying arms openly and the respect of the laws and customs of war.3 However the exception exists, current armed conflicts do not create much opportunities for its application. The practice of states too affirms the custom, which clearly distinguishes members of armed forces and civilians in international armed conflicts. Likewise, the International 1

Additional Protocol I., Article 50 (1) Geneva Convention III., Article 4 (A) 3 Convention (IV) respecting the Law and Customs of War on Land, The Hague, 18 October 1907 (further Hague Regulations); Article 2; https://www.icrc.org/ihl/INTRO/195 and Geneva Convention III., Article 4(A)(6) 2

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Criminal Tribunal for the Former Yugoslavia has given its interpretation upon how to define civilians. The judgment on the Blaškić case from 2000 described civilians as ‘persons who are not, or no longer, members of the armed forces’ 4. However, the practice, defining members of armed opposition groups as members of armed forces in an inter-State armed conflict, is rather more discordant. Most military manuals define civilians as the counterpart of either ‘the members of armed forces’ or ‘combatants’, yet remain without any mention about other classes of persons, for example members of armed opposition groups.5

1.1

Principal of distinction

The obligation to distinguish between civilians and combatants is undoubtedly the pillar of law of armed conflict and forms a customary rule. The principal was already presented by the St. Petersburg Declaration, which describes it as ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’ 6. The following Hague Regulations did not go very much into detail of making a literal rule about distinguishing combatants from civilians. But the Regulations laid down prohibition of attacking civilian objectives, to be more precise: the bombardment of towns, villages, dwellings, or buildings which are undefended7. At last, the principle has been codified in the articles of the Additional Protocol I.8. The principal is described as the ‘Basic rule’ of the Additional Protocol I. codifying that ‘the Parties to the conflict shall at all times distinguish between civilian population and combatants, and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives’ 9. The development of humanitarian law has always tried to mirror the noble endeavour of safeguarding 4

ICTY judgement: The Prosecutor v. Tihomir Blaškić; case No. IT-95-14-T; 3 March 2000; para180; http://www.icty.org/x/cases/blaskic/tjug/en/bla-tj000303e.pdf 5 ICRC: Customary Rule No. 5. and commentary; https://www.icrc.org/customaryihl/eng/docs/v1_rul_rule5 6 Preamble of the Declaration Renouncing the Use, in Time of War, of certain Explosive Projectiles; Saint Petersburg, 29 November/11Decemebr 1868; https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp? action=openDocument&documentId=568842C2B90F4A29C12563CD0051547C 7 Hague Regulations, Article 25; supra note 3 8 Additional Protocol I., Article 48, Article 51(2) and Article 52(2) 9 Additional Protocol I., Article 48

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civilians’ protection against the atrocities of war. Modern conflicts often reflect an imbalance between parties fighting and their sources of means of combat. This has lead to the abuse of the cardinal rule, commonly in favour of the parties to the conflict lesser technically advanced. Unfortunately, the strategic blending that I intent to introduce in this thesis, blurs the lines between those, who shall be fundamentally distinct at the times of ongoing armed conflict. The dichotomy laid down by the principle 10 should not be left to distinction between civilians and members of armed forces only. Such partition is not always suitable since there are more groups of persons affiliated with armed forces yet not performing any combat function. At first, medical and religious personnel are excluded from the notion of combatant but they are comprised within armed forces. The rule is laid down already in the Hague Regulations according to which armed forces of the belligerent parties may consist of combatants and non-combatants.11 Secondly, there are dissident armed forces and other organized armed groups. It is not very clear whether also members of opposition armed groups shall be treated as combatants for the purposes of the distinction. Meanwhile, if treated as civilians who directly take part in hostilities, they shall lose their civilian protection against direct attack upon their action but only as long as and for such time they engage in hostilities.

1.2

Protection against direct attack

Bearing in mind the distinction, an obvious rule can be followed: all enemy combatants can be lawfully attacked at all times. The mode of enemy activity is irrelevant and the attack can be performed when advancing or maintaining position, or retreating. 10

Yoram DINSTEIN: Distinction and Loss of Civilian Protection in International Armed Conflicts; International Law and Military Operations / Michael D. Carsten, ed.; Naval War College 2008; p. 183 11 Hague Regulations, Article 3, supra note 3

12

Likewise, the relevance does not matter when attacking an individual or a whole unit. However, the law poses limitations in certain circumstances. The Hague Regulations do not allow the attack: on neutral territory; in the time of ceasefire; when performed by prohibited weapons; when performed by perfidious acts; when performed on combatants, who were made hors de combat either by own surrender or by injury; as well as when the attack may cause excessive civilian casualties.12 The essential feature of distinction is the protection of civilians and civilian objects. As opposed to combatants, civilians enjoy protection from attack by enemy in wartime. The intentional targeting of civilians is a war crime defined by the Rome Statute 13. Under the Statute, the term attack is an act of violence that can be understood as loss of civilian life, injury both physical and psychological as well damage to civilian property. Thus, the term ‘attack’ contains wide range of violent deeds and its interpretation is fairly but justifiably extensive. The purpose of an attack is an efficient weakening of the belligerent opponent and thus should not be aimed to terrorise civilians who happen to be the foes nationals. The goal of destroying populations moral cannot be the purpose of an attack and spreading terror among civilians is prohibited accordingly to humanitarian law14. Any attack or threat in densely populated areas is capable of producing casualties that spread fear and terror but its intentional purpose needs to aim at the military adversary. The distress interfering with civilian lives is a side effect of war and only attacks objected to cause such effect alone render the action unlawful15. However wrecking the repercussions of an attack might be, the legality of the attack is evaluated accordingly to its former intent. Furthermore, the principle of distinction does not reason the prohibition of deliberate attack only but also those attacks that are indiscriminate in their nature. When an attack is not specifically targeting any military objective or the attacker is incapable to control the aftermath of killing civilians, the attack is considered indiscriminate. The risk usually lies with launching missiles against objectives located within residential areas. Most of the indiscriminate attacks occur in non-international armed conflicts. The asymmetry of belligerent parties is regular in inter-state warfare and the ban on 12

Yoram DINSTEIN: Distnction and Loss of Civilian Protection, p.184; supra note 10 Rome Statute of the ICC, Article 8(2)(b)(i)-(ii) 14 Additional Protocol I., Article 51(2) 15 Dieter FLECK (ed.), The Handbook of International Humanitarian Law, 2nd edn., Oxford: Oxford University Press, 2008, p. 105 13

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indiscriminate attacks plays a bigger role than deliberate targeting of civilians. The current armies of civilised nations are not likely to target civilian population on purpose, however, there are non-state actors who repeatedly lack concern about civilian casualties and proceed in operations without sensible calculations. The adversary of national armed forces frequently operate with imprecise weapons and their attack responses lack premeditation. The chance of incidental indiscriminate attacks is much higher in this case and civilians are likely to be exposed to unavoidable risk. However, indiscriminate attacks is not solely the ruling method of warfare of nonstate parties. Performance of air raids in highly populated areas of Gaza strip 16 are the very example of such military practice. In this particular ongoing conflict, not only Palestinian side but also the very well trained and equipped army of Israel target military objectives in the middle of residential areas. Both parties to the conflict endanger civilians living near the Gaza/Israeli border. On the other side of the battlefield, Palestinian armed groups, including Hamas, use indiscriminate rockets, which they fire into South Israel17 and cause loss of civilian lives, injury and damage on infrastructure in a large scale too. Not only civilians and combatants must be distinguished but also the objectives ascribed to them. The civilian objectives are outlawed from attack. The definition of civilian objectives resembles the one of civilians. Protection against attack is attributable to all objectives that are not military. The exclusion follows the definition of a military objective that states: ‘Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.’18

16

HUMAN RIGHTS COUNCIL: HUMAN RIGHTS IN PALESTINE AND OTHER OCCUPIED ARAB TERRITORIES Report of the United Nations Fact-Finding Mission on the Gaza Conflict; A/HRC/12/48 25 September 2009, para 59.; http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf 17 Amnesty International: Israel/Gaza: All sides must protect civilians as conflict escalates; 8 July 2014; https://www.amnesty.org/en/articles/news/2014/07/israelgaza-all-sides-must-protect-civilians-conflictescalates/ 18 Additional Protocol I, Article 52(2)

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Like the civilian status does not exclude the lawfulness of direct attack against a civilian when conditions of his direct participation are met, the civilian objects are too targetable while used for military purposes. The buildings such as hospitals or places of worship of which purpose is solely civilian can be abused in times of war for storing weapons or sheltering combatants. The attacker shall always presume premises to be civilian in cases of doubt19. The presumption is automatic when it comes to places dedicated to civilian use. Only the severe abuse of such premises and its evidence make them targetable. As for example, many mosques hospitals and schools have been used in the Gaza strip to store rifles and ammunition. Rockets and mortar shells have been launched from these sides20. The properties of misusing the characteristics of a military objective remind of the thin line between a combatant and a civilian when they are at the same time on the same place. For the protection of civilians and civilian objects to be maintained, it is crucial that military operations are concentrating on identifiable lawful targets.

2 Civilians in modern armed conflicts The current armed conflicts bring humanitarian law to face new challenges of modern warfare. A fast-growing number of non-state parties attempts to find their place on the battlefield. These parties try to hide themselves from the whole concept of dual distinction. First of all the increasing involvement of non-combatants call for a new qualification of combatants. Secondly, the complex mixture of participants disables their clear identification essential for targeting. Eventually the unclear status brings confusion to what treatment each group is ought to be afforded. In the following subchapters, I

19

Additional Protocol I, Article 52(3) Terrence McCoy: Why Hamas stores its weapons inside hospitals, mosques and schools; The Washington Post; July 31, 2014; http://www.washingtonpost.com/news/morningmix/wp/2014/07/31/why-hamas-stores-its-weapons-inside-hospitals-mosques-and-schools/ 20

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would like to introduce the character of modern armed conflicts and possible involvement of civilians on the battlefield.

2.1

Character of modern armed conflicts

The 21st century topic, terrorism, provides the output of modern warfare. The campaign on terrorism transforms the methods of combat. The risks poising the states and its citizens are growing with the possibilities that the information age offers. The ever more blending of domestic and international criminal acts leaves zero chance for civilian lives to be spared. Imbalance between fighting parties demands this change and the weaker party to conflicts have to come with perfidious tactics for achieving any military advantage. Warfare, which has been described as asymmetric, demands acting, organizing and thinking in alternatives as opposed to the one of the opponent. The success lies in exploitation of the opponent’s weaknesses and consecutive enhancement of one’s military advantage. The asymmetric warfare has been described as when a weaker party to an armed conflict seeks to defeat its superior adversary by using methods that are not in conformity with humanitarian law and disregard protection of civilians and civilian objects.21 The triumph in beating the stronger party stands on unlawful means of combat. Why is this so effective for non-state belligerents? It might be because their stronger opponent does not dare to deviate from the established international rules and cares about its reputation, as well as does not want to face the consequences and scrutiny by the media. The asymmetry of fighting parties is not completely a new phenomenon. Finding and using the opponents’ weaknesses is the way to succeed in war. The disparity between the parties to the conflicts is enhanced by innovation and technological lead. Even if the equipped and well-trained forces are in advantage, it is paradoxical how great the risk of defeat by non-state actor is. However, the stronger party now really makes the technological leap obvious by overcoming its weaker opponents without physically entering the country. This has been clearly represented by the example of using drones for more than intelligence gathering purposes.

21

Rod THORNTON: Asymmetric Warfare: Threat and Response in the 21st Century. Hoboken, N.I.: Wiley; Polity Press 2007, p. 2

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Generally, all states came to the consensus that casualties should be kept to minimum level and that all civilised nations should comply with the reasoning of humanitarian law to protect those who are at most jeopardised. This means that the conduct of hostilities should respect the ‘casualty aversion policy’ 22. However, the policy remains unthinkable for non-state actors who use asymmetric methods of warfare strategically. In order to win the war, striking against civilian population is a necessity. Non-state armed groups can benefit from the fear it spreads among its own population as well as the population of its adversary. The goal of state policy is to avoid any future casualties and this situation sets a non-state actor in the position of power. Furthermore, the non-state actor can avoid confrontation with state armed forces and carry on targeting civilians. The armed groups are aware of the time limitations that are posed on state armed forces and use this knowledge to their advantage. The reason is that states cannot present lengthy conflicts as justifiable23 forever. The state will usually fight for as long as its government has its support and usually retreat at the imminent risk of not being re-elected. On the other hand, it is not only the state armed forces risking its government reputation. The non-state actor too jeopardised its support by targeting civilians, most of all its own co-citizens. That is the reason why the asymmetric warfare is united with propaganda campaigns and the local sympathy with non-state armed groups.

2.2

Involvement of civilians on the battlefield

Civilians have always been involved in hostilities and played various roles in armed conflicts. The involvement varies also in distance from the battlefield. The range goes from a worker in an ammunition factory to a private contractor who is directly involved as sniper. As much as the humanitarian law tries to balance military necessity and humanity, it remains questionable to what extent subjection of other than privileged belligerents is possible. The fight does not take place between combatants only but drags in persons who are not anymore civilians in its full meaning and yet are not combatants either. The topic of lawful combatancy and targeting are at most relevant.

22

Maj CHARLES, K. HYDE: Casualty Aversion Implications for Policy Makers and Senior Military Officers; Aerospace Power Journal; Summer 2000; http://www.airpower.maxwell.af.mil/airchronicles/apj/apj00/sum00/hyde.pdf 23 Rod THORNTON: Asymmetric Warfare, p. 21-22, supra note 21

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Throughout the development of warfare, industrial advancing forced the incorporation of civilians into general war effort. Industrial sides with weapon production enlarged the chance of striking populated areas. Mostly air warfare has exposed civilians to direct attack and other consequences of hostilities. What aerial bombardment challenged in the 20th century, the information warfare is challenging now. Technological change challenges ideas of what determines an armed attack. It further leaves an open floor to asymmetric threats addressed to powerful states by those economically and military subordinate. Integration of civilians in the conduct of war takes miscellaneous forms. Before exposing the depicted groups of unlawful combatants in following chapter, I would like to introduce some aspects of civilian involvement in armed conflicts that are so troublesome for identification of the civilian status. These categories do not match with the distinction of combatants and so civilians may be provided with combatant-like treatment if certain circumstances occur. Firstly, there can be personnel integrated into military structure or only play a supporting role. Civilians performing near combatant tasks are acknowledged by humanitarian law as civilians accompanying armed forces. Both Hague Regulations and Geneva Conventions lay down the standing of civilians employed by or accompanying the armed forces. The assimilation of these professionals into armed forces provides with the rights of prisoner of war status upon capture 24. In modern armies, civilians fulfil supporting jobs such as maintenance, logistics and intelligence. Contrary to the awarded protection, if the civilians does take part in hostilities he shall be treated as any other unlawful combatant and loses his protection of POW status. At times were information warfare has become a standard component of combat it would be appropriate to rethink the notion of a civilians accompanying the armed forces. The level of integration often brings the civilians to the frontline and the recent developments signal that they are employable for combat functions. I shall discuss this topic further by introducing private contractors in armed conflicts in another chapter. Secondly, the position of civilian political leaders is to certain extent questionable when compared to its officially elected counterparts. The nature of involvement is very essential to establish constitution of direct participation in hostilities. It is common that 24

Geneva Convention III, Article 4(5)

18

the head of state is directly in the chain of command and bears responsibility by virtue of his public function. As opposed to the status of a president, a civilian leader cannot be vested a formal command responsibility and thus the nature of his involvement may not be easily identifiable. However, when war crimes are committed by subordinates and under customary law a civilian leader too may be held accountable. The war effort of a civilian leader puts him in a position when many acknowledge his participation in hostilities and often award him with the status of POW upon capture. 25 Eventually the involvement self designates the status and not the prior status. Thirdly, I would like to refer to civilians participating in the war effort. The todays’ war as it is shown in media is a ‚total war’ 26. The concept excludes a conflict solely between parties belligerent but involves a significant number of civilians. Armed individuals or groups on battlefield renounce a basic element of combatancy that establishes a connection to state or a recognised party to the conflict. In the past, the separation of civilians and combatant rejected any consideration of a semi-group of quasi-combatants as category of participants in armed conflicts. However, now humanitarian law needs to account for civilians taking direct part in armed conflicts and provide them with the necessary protection without obstructing application of the principle of distinction.

3 Modalities governing the loss of protection against direct attack In this chapter, I want to present the various modalities governing the loss of protection by concentrating on two points of the scope of protection. Firstly, I will present the temporal ambit of establishing direct participation in hostilities and hence its effect on the loss of protection against direct attack. The temporal scope varies depending on individual participation and participation within an armed group therefore I shall examine both separately. Secondly, I want to review the personal ambit of loss of civilian protection within particular groups that stand outside the definition of combatants and yet join in hostilities on voluntary basis. For that, I have chosen the 25

Colonel K.W. WATKIN: Combatants, unpriviliged belligerents and conflicts in the 21st century; Background Paper prepared for the Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law, Cambridge, January 27-29, 2003; http://hpcrresearch.org/sites/default/files/publications/Session2.pdf 26 Charles GARRAWAY: The Changing Character of the Participants in War: Civilianization of Warfighting and the Concept of “Direct Participation in Hostilities”; International Law Studies Volume 87; Naval War College Newport, Rhode Island 2011; p. 178

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most discussed-about groups of non-combatants: mercenaries, private military and security contractors and voluntary human shields.

3.1

Temporal scope of protection and the meaning of ‘fur such time’

The ICRC presents in its DPH Guidance the temporal scope of protection according to provisions of Additional Protocol I.27 as well as to customary law28, as following:

‘Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities, whereas members of organized armed groups belonging to a non-State party to an armed conflict cease to be civilians, and lose protection against direct attack, for as long as they assume their continuous combat function.’29 The temporal scope encompasses the running of acts of a hostile nature attributable to the notion of direct participation in hostilities. Although such persons lose their protection against direct attack, they do not cease to be civilians. The temporal character of loss of protection is indisputable. Time, for which protection against direct attack is lost, is a very important factor. Firstly, the meaning phrase ‘for such time’ establishes the beginning and the end of hostilities. Secondly, the phrase ascertains the legal consequences of the pauses between acts of violence.

3.1.1

Individual participation

Civilians are suspended from the protection against direct attack for the time being while taking part in hostilities as within the phrase ‘unless and for such time’. Thus we can say that civilians regain protection against direct attack right after they desist from their engagement in hostilities and lose it again by their reengagement. This treatment is described as a ‘revolving door’ of civilian protection and prevents from direct attacks 27

Additional Protocol I.; Article 51 (3) ICRC: Customary Rule No. 6. and commentary; https://www.icrc.org/customaryihl/eng/docs/v1_rul_rule6 29 Nils MELZER: Interpretative guidance on the notion of Direct participation in hostilities under international humanitarian law, adopted by the General Assembly of the ICRC, February 2009; p. 70; https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf 28

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those who do not represent a military threat. As opposed to the members of organised armed groups whose combatant functions are continuous, civilians on the other hand behave according to constantly changing circumstances. Hence, their behaviour is uneasy to explain. The repeated participation of a civilian in hostilities cannot be a reason for presuming his future conduct. The common analogy ‘farmer by day, fighter by night’30 does not allow assumptions to behaviour of a sporadic fighter, as the concept refers only to specific individual acts of war.31 This is based on the interpretation of Article 51 (3), that states: ‘Direct participation means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces. It is only during such participation that a civilian loses his immunity and becomes a legitimate target.’32 In practice such interpretation could rule out figures in higher position of the chain of command structure to certain extent. The notion of direct participation is limited to belligerent acts. For instance, actions of recruitment or planning of belligerent acts would be difficult to determine their time frame, when they would be attributable to direct participation. These acts relate to preparatory acts. 33 Such preparatory measures and deployment must be of a specifically military nature and so closely linked to the subsequent execution of a specific hostile act that they already constitute an integral part of that act.34 However, two groups of preparatory acts must be distinguished in order to establish their capacity to amount as direct participation. Namely, they are the preparatory measures aiming to carry out specific hostile act and the preparatory measures aiming to establish the general capacity to carry out unspecified hostile acts. The latter do not qualify as direct participation.35 Furthermore, the act of direct participation does not require a temporal proximity. This means that preparatory measures do not have to occur immediately before a specific hostile act. The Supreme Court of Israel has expanded the interpretation of direct participation to preparatory measures such as guiding combatants in terrain as well as 30

Michelle LESH; Draft for Routledge Handbook of the Law of Armed Conflict; Chapter – 11 Loss of Protection: Direct Participation in Hostilities, p.14; http://law.huji.ac.il/upload/Lesh_LossofProtection.pdf 31 Supra note 29, p. 71 32 Additional Protocol I.; Art.51(3) 33 Supra note 30, p. 15 34 Supra note 29, p.65-66 35 DPH Guidance, p.66

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recruitment and planning of such activities. 36 Despite this, preparatory actions such as money donation or sale of supplies to combatants do not fall within this interpretation, since their nature reaches beyond possible attribution to a specific act. Neither the act must be executed in close geographical proximity. Therefore, weapons can be collected for a specific act in a greater distance from the place of actual attack yet this collection would amount to direct participation. Similarly, transport of units or collecting of intelligence constitutes direct participation when intended for a certain military operation.37 The moment of regaining protection against attack is when the individual has physically separated from the operation. The individual ceases his arms and resumes civilian activities distinct from the previous military operation. 38 The DPH Guidance describes the theory of ‘revolving door’ as an inherent result of treaty provisions and allows a person directly participating in hostilities more than once to revert to a civilian status between hostile acts. However this view is being criticised for lack of consideration of the persistent civilian participator.39 I agree with the opinion of professor Dinstein, who claims that a protection against direct attack should not be granted if a civilian conducts hostile activities on a steadily recurrent basis with brief pauses. 40 Meaning that an individual civilian persistent fighter loses protection and remains targetable irrespectively of the nature of activity he is engaging in. The time period of direct participation should not be understood too narrowly. For a narrow interpretation might be impractical for armed forces and consequently ignored. One must not forget that the normative purpose is to protect victims of armed conflicts. The interpretation should therefore be favourable to state armies and take into account what is happening on current battlefields. The objective is to permit targeting of those who participate on a persistent or a regular basis in the conflict.41

36

Supreme Court (sitting as High Court of Justice), The Public Committee against Torture et al. v the Government of Isreal et. al (HCJ 769/02), 2006; p.33 37 ibid. 38 DPH Guidance, p. 67 39 Bill BOOTHBY; “And for Such Time As“: The Time Dimension to Direct Participation in Hostilities; 42nd New York University Journal of International Law and Politics (2010); p.761 40 Yoram DINSTEIN; The Conduct of Hostilities under the law of International Armed Conflict;2nd edition, Cambridge University Press 2010;p 190 41 Bill BOOTHBY; “And for Such Time As“: The Time Dimension to Direct Participation in Hostilities; 42nd New York University Journal of International Law and Politics (2010); p.768

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On the other hand, it can be difficult to determine the point when an individual no longer intends to engage in hostilities. The U.S. claims that if a repeated participation takes place, an act of affirmative disengagement or extended non-participation from hostilities is in place to restore civilian protection against direct attack. 42 There might occur some misunderstanding as to concurrent status in case of previously attacked noncombatants. However, once a civilian exposes himself to the risk of direct attack by his participation and carries out hostile act repeatedly, the adverse party might miss his disengagement from hostilities and misunderstand his status. 43 Civilian takes a risk upon him by his persistent participation and shall bear this risk of misunderstanding by his counterparty after discontinuing of hostile activities. What is more, this broad interpretation might seem ignorant to the presumption of civilian status in cases of doubt. In case of doubt whether a civilian is directly participating or not an attack against such person must not be allowed. In spite of this, misunderstanding is not a case of doubt but a mistake of fact. 44 If the adversary attacker has no information of affirmative disengagement nor it can presume extended nonparticipation, it has no reason to doubt continuance of loss of protection. Although humanitarian law requires that participants to armed conflicts should take precautions in order to prevent mistakes, it is not prohibited to make reasonable mistakes in the battlefield. Lastly, from the military perspective it might not be possible to interpret the temporal scope of protection according to ‘revolving door’ theory. Civilian participation in hostilities is typical for asymmetric warfare and individual surprise attack is a usual method of combat. An attack might occur long after insurgents have departed the area. The most effective way for an adversary is to stop an individual from carrying on participation in hostilities. Following of sufficient intelligence insurgents can be located in their hiding place.

45

An attacker must take all feasible steps to verify confirm that

targets are not protected civilians.46 Eventually, a balance between military necessity and principle of humanity must be met.

42

Gherebi v. Obama, 609 F.Supp.2d 43 (D.D.C.2009), Memorandum Opinon Bill BOOTHBY; supra note 39., p. 760 44 Michael N. Schmitt; The Interpretative Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis; Harvard national Security Journal/Vol.1; May 5th, 2010; p. 39 45 ibid. (land mine attacks); p. 39 46 Art.57(2)(a)(i) of Additional Protocol I. to GC 43

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3.1.2

Participation based upon membership in an armed group

The time frame for loss of civilian protection can be also bound by civilian membership in a non-State armed group. Members of organized armed groups may be attacked any time according to the virtue of lasting membership. 47 Hence the membership approach considers the function of a member that actuates the loss of protection. Accordingly to LOAC there are three cumulative elements of an organized armed group (OAG): 

sufficient degree of military organisation,



belonging to a party to the conflict, and



continuous combat function (CCF)48.

Regarding the temporal scope of loss of protection, I will mainly discuss the criterion of continuous combat function. Through assessment of function with an OAG a person can be determined as targetable. Pursuant to the DPH Guidance, continuous combat function reflects direct participation. Therefore, members to be engaged in action attributable to direct participation can be subjected to attack. Their membership and function makes them a lawful target and so, they can be attacked not only at times of actual direct participation. This analogy quite resembles the status of state army forces members. On the other hand, members without such function are still considered civilians and lose their protection only for such time as they engage in hostilities. The element of CCF is applicable for member of OAGs in both international and noninternational armed conflicts. It can be indicated either by uniforms or distinctive signs or by behaviour. The latter is far more useful for identification since members of nonState armed groups do not usually distinct themselves with uniforms or emblems. Conclusive behaviour is observed in repeated direct participation in support of a certain OAG, thus indicates a CCF generally rather than a temporary participation. However, membership is attributable also by other means. For example, through intelligence it is possible to gain lists of members or locate insurgents in isolated camps. 49 Membership determined in such way is irrefutable but leaves a place for uncertainty towards establishing CCF.

47

DPH Guidance, p.72 Michelle LESH; Draft for Routledge Handbook of the Law of Armed Conflict; Chapter – 11 Loss of Protection: Direct Participation in Hostilities, p.21 49 Michael N. Schmitt; above n 18 48

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Members of OAGs are treated as lawful combatants only when it comes to targeting rules. However, they do not cease to be civilians and cannot be treated as combatants upon capture by enemy forces because they do not fulfil the criteria of Geneva Conventions50. Thus we cannot consider them as combatants but we can regard them as fighters51. With this approach we are able to perceive OAGs more likely as an equal side to an armed conflict. It should be noted, that members of irregular forces take a position of a targetable civilian upon beginning of his continuous combat function de facto. In my opinion, contrary to that of DPH Guidance, members of irregular non-State armed forces shall have more similar standing as those of state armies. The performance of military operations demands a certain level of command in a group and organisation regardless of a belonging to a State or a non-State party. 52 It is not only members of State armies who perform logistics necessary to conduct of military operations and gathering of intelligence. Yet the position of members of non-State party who conduct the same job is different. Thus, not only fighters of irregular belligerents should be targetable at all times but also its members with any combat function. Considering the nature of modern warfare, namely in non-international conflicts, there should not be space left for those members of irregular forces who misuse their unclear position and apply the methods of guerrilla warfare. Functional membership could entail combat function of broader sense: ‘combat, combat support, and combat service support functions, carrying arms openly, exercising command over the armed group, carrying out planning related to the conduct of hostilities, or other activities indicative of membership in an armed group.’53 This approach offers a challenging application upon members of non-State belligerents since their account is more likely to fluctuate and its structure of command to be less formal. 54 This brings a bigger uncertainty towards establishment of exact time frame of loss of civilian protection conditional to membership in OAGs.

50

Article 4 of Geneva Convention III. ICTY: Blaškić Trial Chamber Judgments; Case no IT-98-029-T; 3rd March 2000; para 192 52 Watkin, K.W., Combatants, Unprivileged Belligerents and Conflicts in the 21st Century,Background Paper prepared for the Expert Meeting on the Reaffirmation and Development of International Humanitarian Law, Cambridge, January 2003 53 Ibid. 54 Nils MELZER: Interpretative guidance on the notion of Direct participation in hostilities under international humanitarian law, adopted by the General Assembly of the ICRC, February 2009; https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf 51

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Conclusively, I do not want to propose that all members of irregular OAGs shall lose their civilian protection merely depending on their membership. But from military perspective it would be preferred if the term ‘combat function’ was understood in broader scope.

3.2

Personal scope

3.2.1

Mercenaries

Mercenaries introduce a whole category of unlawful combatants and their right to protection is to some extent restricted. Although a mercenary engages in hostilities, he is neither a national nor a party to the conflict. The humanitarian law subjects mercenaries to particular attention and accords little protection to this group. The law denies mercenaries the status of a combatant as well as the prisoner of war status. At the same time, the legal provisions do not treat them as unambiguous civilians either. Mercenaries are recognised as special actors of war in their own right.55 Bearing in mind the concern of humanitarian law to provide protection in times of war to all its actors, at least the minimal protection is awardable to mercenaries. The ad minima protection 56 provides the basic protection established by customary law and therefore affordable in international as well as non-international armed conflicts. As opposed to their historic predecessors who were hired as soldiers before the emergence of national regular armed forces, modern mercenaries reached their peak after the creation of new States in the 1960’, mostly on the African continent. They have been hired to fight national liberalisation movements often advancing into civil wars 55 56

Dieter FLECK and Michael BOTHE: The Handbook of Humanitarian law in armed conflict Aniciee Van ENGELAND: Civilian or Combatant? A challenge for the 21st century, p. 122

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and coups d’Etat. The law did not operate with a general black letter definition of a mercenary until the creation of the Additional Protocols to the Geneva Conventions. However, the former Hague Conventions already place responsibility on neutral states to ensure that any military corps or combatants are not to be formed nor recruiting agencies opened on their territory57. Individuals acting on behalf of one belligerent party to the conflict by taking up arms as mercenaries cannot avail themselves of their neutrality58, accordingly to Hague law. At the same time, they are entitled to the same amount of protection as the nationals of state parties to the conflict. Thus, a mercenary has been afforded the protection of a civilian taking direct part in hostilities. The First Additional Protocol for the first time deals with mercenaries specifically in its Article 47. This class of persons is not similar to the traditional classes of unlawful combatants since they are not linked to the principle of distinction between combatants and civilians59 in the Article. Although the Additional Protocol I. is applicable only in international armed conflicts and binds few states, the Article has been observed to reflect custom60 by the ICRC and therefore may be recognised as a legal instrument binding all at the time of war. The Article 47 defines a mercenary as a person who: a. is specially recruited locally or abroad in order to fight in an armed conflict; b. does, in fact, take 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 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.61

57

Hague Convention (V), Article 4 and 5 Hague Convention (V), Article 17 59 Supra note 10 60 ICRC: Customary Rule No.108 61 Additional Protocol I, Article 1(2) 58

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The definition itself is quite restrictive and provides a narrow scope for individual application since all six of the listed conditions are cumulative. Such conditions makes the definition almost inapplicable in reality since it is rare, perhaps impossible, to come across a person meeting all the criteria. Nevertheless, there is a criterion being depicted as the most important one and that of their desire for private gain. It is considered that the feature making mercenaries distinct from any other group of unlawful combatants is their motivation. This linchpin alone is thought to be the force behind joining the hostilities62. The motivation alone does not make this group any different from private contractors, who supposedly join combat also for financial compensation. In many sources the terms of a mercenary and that of a private contractor interchange and are used as synonyms. I believe the correct use of these legal terms should remain separated, since private contractors could not practically meet all the listed conditions. Firstly, they often are the nationals of the belligerent party to the conflict and most of them are hired for noncombat functions. Former members of armed forces often work for well-sophisticated private military companies. Secondly, they provide security services under a contract. Hence, they do not fulfil the condition of being recruited for a specific armed conflict as such. A long-term employment leaves some place for consideration about special recruitment63. Freelance contractors would more fit the mercenary criteria, since they can be hired for specific jobs. Eventually, it can be argued besides the time ambit of involvement whether the corporate veil as such provides a detour from defining them as mercenaries. On the other hand, when a private military contractor is under a long-term contract with a state army, it does not mean that it is incorporated in armed forces. A prolonged involvement does not necessarily rule out its special recruitment. The wording ‘specially recruited’ was initially meant to disqualify members of volunteer military corps such as the French Foreign Legions or the Gurkhas in the British Army to be defined as mercenaries and not private contractors, who were never entailed to be incorporated into state armed forces.

62

Yoram DINSTEIN; The Conduct of Hostilities under the law of International Armed Conflict;2nd edition, Cambridge University Press 2010;p. 57 63 Walker, Clive; Whyte, Dave, Contracting out of War? Private Military Companies,Law and Regulation in the United Kingdom, International and Comparative Law Quarterly, July 2005

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Furthermore, the provision states that a mercenary shall be promised a compensation that is substantially in excess in comparison with that of a member of armed forces of the same rank. The definition itself attaches motive to a legal status rather than only define what actions would attribute a person to fall within this definition. Although a motivation as a psychological element is complex and hard to evaluate, we connect the motive with material compensation and greed rather than with any other kind of interest behind the purport of joining hostilities. The interest driving a civilian to take up arms can be also religious or ideological 64. Any fighting civilian could claim that his motivation is based purely on his sympathy to the belligerent party. For instance, the unlawful combatants in Bosnia volunteered to fight for a moral or religious reason. Some of the ex-military from Britain came to the country in order to engage in fighting and help the locals to fight their cause.65 Further, Mujahedin soldiers from abroad were driven as well by their belief to come to Bosnia and take up arms against those who would supress the peoples’ religious rights. What is interesting is that they were compensated with houses66 at the end of war. Another important feature of a mercenary is his nationality and that of a different state than of any belligerent party to the conflict. The threshold of nationality and residency is much easier to identify. Private contractors find employment all over the world and thus, it is less difficult to meet this condition. A notorious example are South African mercenaries fighting in Sierra Leone from the private military company Executive Outcomes. The military president of Sierra Leone bought the restoration of law in the country with millions of dollars and diamond mining concessions 67. There is also a more current examples of a company Blackwater hired by the United States. During the period when the US governed Iraq, private armed guards were taking active part in hostilities68. As difficult as it might seem to find a person who meets the definition of a mercenary, his protection is somewhat trussed within the denial of both protective statuses usually awarded to combatants leaving him with the legal protection enshrined in the fundamental guarantees of humanitarian law. To assume that mercenaries enjoy no 64

SINGER Singer, Peter W., War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law, Columbia Journal of Transnational Law, January 2004 65 http://www.independent.co.uk/news/britons-flock-to-fight-in-bosnia-thousands-of-exsoldiers-anduntrained-idiots-and-psychopaths-said-to-be-serving-as-mercenaries-with-all-three-sides-1471991.html 66 Aniciee Van ENGELAND: Civilian or Combatant? A challenge for the 21st century, p. 123 67 http://www.crimesofwar.org/a-z-guide/mercenaries/ 68 http://www.ohchr.org/EN/Issues/Mercenaries/WGMercenaries/Pages/WGMercenariesIndex.aspx

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protection under humanitarian law is misguiding. The group of mercenaries is being specially isolated from the wide group of unlawful combatants and left with the protection awardable to every non-combatant who takes direct part in hostilities. Their rights to protection are contained in the same document that defines them, Additional Protocol I. The indiscriminate Article 75 deals with generally with rights affordable to all persons in an armed conflict. The states may have the full right to prosecute those who also in time of war kill without the combatant status, yet they must treat them humanly. Murder, torture, corporal punishment or outrages upon personal dignity, collective punishment and threats to commit any of the forgoing are prohibited.69 Modern mercenaries are often seen as volunteers devoting themselves to fight either for financial security or to higher morals worth risking their lives, such as jihad. The use of civilian fighters raises questions not only whom the fighting parties are comprised of but also whether they are actual combatants who can be lawfully attacked. Defining their status, either as combatants or civilians, may often been a political decision. However, widening the scope of application cannot happen under the risk of blurring the principle of distinction that is so crucial for affording protection against attack. Local instabilities require international military action. The frequent use of private military companies is inevitable since the risk of lives of servicemen is widely unpopular with most of states governments. The changing face of war leads to multitude of actors as opposed to traditional duel of states. Civil wars are becoming more international than ever. The involvement of state coalitions creates a demand of private actors on the battlefield and their activity often reaches the definition of mercenaries. The danger of their involvement lies in bringing more uncertainty into identifying combatants and distinguishing them from civilians. Suggestions to overcome the current definition might be in place in order to furnish clearer distinction between those who are to be protected at all times and those whose combat function denies them protection against a direct attack. In my opinion, if a change of status leads to greater motivation to respect humanitarian law, the possibility should not be ignored. The conventional definition is likely to be subjected to revision as a reaction to the boom of private military industry. Eventually, if a change on restriction of mercenary activity occurs, it shall be designed in keeping the fundamental protection affordable untouched as well as the right to fair trial in case of prosecution of mercenary acts. 69

Article 75 (2), Additional Protocol II.

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3.2.2

Private military contractors

Recent developments over the last two decades show an enormous increase of civilian factor ever more involved in war practice. The so called ‘privatisation of war’ has emerged merely from practical interest, however does not stay disclosed from discussions of legal professionals. The necessity of practical guidance on legal position of private military companies and security companies (PMSCs) has been brought to the spotlight by its large involvement in military operations in Iraq, also known as Operation Iraqi Freedom (OIF), established by the invasion of U.S. troops to Iraq in 2003.70 In the recourse of this war, the qualitative use of private actors has become more visible. Civilians no longer perform only logistical support but directly take part in hostilities. Their accompanying role is now more crucial to conducting military operations traditionally performed by national armed forces. In this chapter, I intent to discuss the possible legal challenges created by new tasks of private contractors as well as their legal status under LOAC. First of all, a fundamental distinction needs to be made between members of the armed forces and civilians, since the constraint of this distinction is not restricted to limitation of civilian casualties, but also illustrates the aspect of traditional international relations: ‘members of the army are organs of state and, when captured, are expected to benefit from this official status’71. Meaning they enjoy the protection that excludes their subjecting to prosecution by the adversary state upon capture. Hence, they cannot be tried for acts usually associated with combatants taking part in hostilities, such as killing and inflicting grievous bodily harm72. This norm is being recognised from early on as the LOAC was formed: 70

Michal N. SCHMITT; Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees; submitted as an expert paper to ICRC Second Expert Meeting on the Notion of Direct Participation in Hostilities in Hague, 25/25 October 2004 71 Louise DOSWALD-BECK; Chapter 7 - Private military companies under international humanitarian law; from MERCENARIES TO MARKETS: The Rise and Regulation of Private Military Companies edited by Simon CHESTERMAN and Chia LEHNARDT; Oxford University Press 2007; ISBN-13: 9780199563890 72 Yoram DINSTEIN; The Conduct of Hostilities under the law of International Armed Conflict;2nd edition, Cambridge University Press 2010; ISBN: 978-0-521-12131-6; page 33

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‘So soon as a man is armed by a sovereign government and takes the soldier’s oath of fidelity, he is a belligerent; his killing, wounding or other warlike acts are not individual crimes or offenses.’73 Generally, the prisoner of war status and the protection provided is not applicable to civilians. The concept of particular protection is limited to official state army members. However the entitlement of POW status is fundamentally restricted to lawful combatants, this is not the fact at all circumstances. The Third Geneva Convention includes civilian categories that enjoy this very status. The provisions assimilate protection of certain persons associated with the army. The standing of POW is attributable to civilians only when they are employed by or accompanying the armed forces74. Noticeably, when a civilian is employed by or accompanies the armed he does not become a combatant and further deemed as a civilian in its full sense. Protection of private contractors and civilian employees PMC’s are more likely to be considered civilians than combatants in the eyes of LOAC. They can be subjected to a lawful target in case they directly take part in hostilities. 75 The ICRC Interpretative Guidance deemed the protection as following: ‘Private contractors and employees of a party to an armed conflict who are civilians are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. Their activities or location may, however, expose them to an increased risk of incidental death or injury even if they do not take a direct part in hostilities.’76 In this context, the protection of private contractors and civilian employees of belligerent parties depend on the same criteria as would apply to any other civilian. Therefore, they are not entitled to take direct part in hostilities, but are afforded the immunity from direct attack. Nevertheless, their special role requires careful determinations of their legal position when direct participation occurs. Above all, private contractors relate to army personnel and we have to bear in mind their 73

Article 57, Lieber Code Article 4(A)(4)-(5) of Geneva Convention III 75 Art.51(3) of Additional Protocol I. to GC (this rule is also considered to be customary) 76 Niels MELZER: Interpretative Guidance on the Notion of Direct Participation in Hostilities under International law; adopted by the Assembly of the ICRC; published by ICRC in May 2009; part 1.A (III) Private contractors and civilian employees 74

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geographic and organisational closeness to the armed forces during the ongoing hostilities.77 Denial of entitlement to protection under GC III. granted to combatants leaves PMCS’s with the protection attributable to unlawful combatants. In particular humane treatment, non-discrimination, prohibition of torture awarded in GC IV78. Due to possible internment for direct participation, a private contractor that becomes a detainee has also the rights to fair trial. Although GC IV Article 4 is to be interpreted in broad terms, some persons are excluded from status as protected persons under this convention, in particular nationals of the power in whose hands they find themselves. On basis, that GC IV applies to unlawful combatants who satisfy the Article 4 requirement of nationality. However, those who are excluded from the protection of the convention are not left unprotected. The minimum legal guarantees in customary international law are recognised in Common Article 3 and AP I Article 75 and hence provide legal protection upon capture.

Direct participation of private contractors Private contractors like other civilians are protected against direct attacks “unless and for such time as they take a direct part in the hostilities” 79. The private contractors might be easily mistaken when they openly carry weapons the simple fact of carrying a weapon does not imply per se that the bearer takes a direct part in the hostilities. 80 The use of weapons may be linked to security against criminal activity. There might not be any problem if contractors hired for security carry handguns. It may well happen that can provide the services in a country, which is involved in an armed conflict. Although, it would look suspicious if they would carry submachine guns. Interestingly enough, the term of security services does provide a neat cover name for firms that would want to exclude themselves from mercenaries. Direct participation of contractors becomes questionable when they are involved in purely military activities, albeit logistical. Transportation of weapons and other military 77

ibid. GC IV., Article 4 79 Article 51 (3) of Protocol I for international armed conflicts, and Article 13 (3) of additional Protocol II for non-international armed conflicts 80 Involvement of Private Contractors in Armed Conflict: Implications under International Humanitarian Law 78

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commodities, intelligence, strategic planning or procurement of arms, may loosen the protection against direct attack afforded to civilians. Regulations of states may vary from each other on the point direct participation. For instance, the United States Naval Handbook confirms that activities regarding military intelligence are classified as direct participation in hostilities as following: ‘Collecting information or working for the enemy’s intelligence network’81. When contractors provide security to civilian objects like schools, hospitals, and private housing buildings, their position in the eyes of law is simple. In the situation of an attack on such object, force used by security contractors would be based on the reason of self-defence and hence they would not lose their civilian status and legal protection against attack. However, if contractors provide security to military objects their position as civilians fades. These private security guards could not be considered as civilians since they are usually heavily armed and ready to take direct part in hostilities. Their right to protection is not straightaway clear and they remain operating in a ‘grey area’82 of blending quasi combatants, such as mercenaries, paramilitary non-state actors or irregular fighters. The U.S. Air force Commander’s Handbook subjects persons, acting as a guard for military activity, to attack.83 The loss of protection is, according to the Handbook, bound by the performance of safeguarding. Thus once the personnel of a private company goes off-duty his protection against direct attack is restored. However, persons whose job is security of military sites cannot be compared with civilians working in possible military objects, such as airports or power plants. When targets fulfil the criteria of lawful military objectives84 their targeting is legal also at the time of presence of civilians albeit the attack constitutes killing of civilian life. For such scenario, a mandatory deliberation of possible collateral damage would have to be calculated and tested by the principle of proportionality before launching any attack. According to the rules on the conduct and methods of warfare, incidental loss of civilian life or injury to civilians would have to be proportionate in relation to the military advantage anticipated for the act deemed legal.85 81

United States Naval handbook (1995), Par. 11.3 Private Military Contractors and International Law: An Introduction Francesco Francioni 83 Commander's Handbook on the Law of Armed Conflict, Air Force Pamphlet, Department of the Air Force, United States, AFP 110-34, 25 July 1980, p. 2-2 84 Additional Protocol I. Article 52(2) 85 Additiona Protocol I. Article 51 (5) 82

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Membership and Specific Act as criteria for the loss of protection There are two approaches to define the loss of protection in case of PMSC’s with different impact on the loss of protection. Firstly, the approach concentrates on the membership to private company, which is quite unrealistic. It would be unfair to treat all employees in the same way. The membership approach might be more reasonable when applied on armed opposition groups, however very inadequate in case of military and security ventures. The condition of membership may prove to be helpful for the purposes of distinction once they directly participate in hostilities. Then, there is the Specific Act approach that is favourable to wording of humanitarian law. The loss of protection is bound by the temporal ambit of a hostile act. Qualification of direct participation according to a specific hostile act tends to provide more often protection since it treats contractors as civilians most of the time. Although a contract between a company and a civilian is not always concluded for one specific act, the more welcome approach provides the contractors with protection in transition during the times of disengagement from hostilities. Lastly, in order to avoid the possible discriminatory character of the membership approach and the revolving-door effect of participation in case of the specific act approach, a third options presents itself, and that of the functional approach. It is a compromise of conditioning the function for establishing direct participation in hostilities.86 Hence, the direct participation is constituted by fighting function and only its abandonment restores the protection against direct attack of the contractor. The function has to require the contractor to DPH on regular basis 87. The benefit of determining combat function would simplify practical identification of direct participation not only of private contractors but also of civilian militants. In conclusion, contractors taking direct part in hostilities without the combatant entitlement qualify as unlawful combatants. They participation in combat makes them liable to direct attack for such time they fulfil their combat function. The attacking adversary should presume protection against direct attack in case of doubt. Provided, that a contractor is injured or captured he shall be awarded protection under the Fourth

86 87

Supra note 25 Ibid.

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Geneva Convention and if he does not fulfil the necessary criteria the fundamental and customary protection are guaranteed to the extent applicable.

3.2.3

Voluntary human shields

During war individuals risk their lives in order to protect others or objects that have great value for them. For instance, people in Yugoslavia blocked bridges of Belgrade with the intention of preventing bombing by NATO forces in Kosovo, in 1999. 88 Such 88

Jaen Francois QUEGUINER: Precautions under the law governing the conduct of hostilities; International Review of the Red Cross, Volume 88, No. 864, December 2006; p. 815

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actions ever more blur the lines between those who fight and those who shall be safeguarded from the atrocities of war. Thus the danger of attacks against civilians is becoming inevitably higher. Voluntary human shields present a challenge to lawful targeting on the battlefield. The tactic of voluntary human shields has been frequently used in conflicts that can be described as asymmetric. There is a remarkable difference between the sophistication of weaponry and the availability of technical resources of the opposite belligerent parties to the conflict.89 A weaker party tends to outweigh the imbalance with vicious and perfidious methods of warfare. However, such action should not be considered just even if a discrepancy between the adversaries is considerable. Voluntary human shields intentionally protect a military objective against an attack. Their passive position at shielding a lawful target is sometimes disputable. Whether such act should be considered as direct participation in hostilities or not is a prerequisite for enjoying protection against direct attack. The variable interpretation of direct participation may create uncertainty towards voluntary human shields, since they do not literally take up arms against their enemy but rather misuse their civilian status for the military advantage of their favourite. The decision to encompass this behaviour within the notion of direct participation decides the whole matter of deprivation of civilian protection against direct attack. Direct participation is perceived through hostile acts, which do not have to be necessarily defined by the use of weapons. Attacks as such comprise offensive and defensive deeds.90 Thus, we could deduce that also unarmed civilians who intentionally shield military objectives also directly participate in hostilities. The Israeli Supreme Court has supported the opinion of direct participation and held that civilians who act as human shields ‘of they own free will, out of support for the terrorist organisation, they should be seen as persons taking direct part in hostilities’ 91. So indiscriminately of wearing weapons or conducting acts capable of exposing the enemy to an immediate threat, a civilian human shield is considered as directly participating and deprived of his immunity against direct attack. Merely his wilful position directly contributes to the 89

Stephanie BOUCHE de BELLE: Chained to Cannons or Wearing Targets on their T-shirts: Human shields in international humanitarian law; International Review of the Red Cross; Volume 90 No.872; December 2008, p. 885 90 AP I.; Article 49. 91 HCJ 769/02, above

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perpetration of hostilities by the belligerents against each other. The attempt to utilise civilian status to enrich the advantage of one party to the conflict itself is reprehensible. By safeguarding weapons systems, command and control facilities, and infrastructure a civilian can be denied his protection.92 However, this opinion is not shared by all. The war in Iraq has presented a category of voluntary human shields who came before the outbreak of hostilities in 2003. The pacifists have taken up positions on infrastructure and military objectives in order to prevent the conflict as such, not for the advantage of one side alone. The Human Rights Watch claimed in this case that such participation is of indirect nature and does not contribute to the war capability of a state93. According to this view, their immunity from direct attack should not have been suspended at that time. Although many volunteers left the country before the actual fighting began. Eventually, whether voluntary human shields are regarded as directly participating or not the military objective remains the same and that is the destruction of the shielded object not the shielding civilian himself. There is no point directing an attack against a human shield additionally to a military object. It all comes to the point of whether the person acting as a human shield directly participates in combat. I believe that the presence of a civilian in front of a lawful target presumes the ongoing immunity. Otherwise, such act would be pointless. Therefore, it is an obligation of the adversary to apply the principle of proportionality when targeting a shielded object. The commander of the opposite party must take into account the voluntary nature of individual’s behaviour. The result of such behaviour is the civilians’ tacit exposure to attack and his conciliation with the risk of rendering himself casualty. The law addressing human shields The Geneva Convention on Protection of Civilians in Time of War articulates that ‘the presence of a protected person may not be used to render certain points or areas immune from military operations’94 and the subsequent First Additional Protocol widened the scope of application with using the term ‘civilian population’. The Article is held to 92

Richard PARRISH: The International Legal Status of Voluntary Human Shields; presented at International Studies Association, Montreal, Canada; 17th March 2004; p. 9 93 Human Rights Watch: International Humanitarian Law Issues in a potential War in Iraq; 20 th February 2003 94 Geneva convention IV., Article 28

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reflect customary law applicable to both international and non-international armed conflicts, and stipulates explicitly that: ‘The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.’95 The norm matches the involuntary nature of human shielding and protects civilians that are forced to shield military objects. Such action could be observed in the actions of the former president of Iraq, Saddam Hussein, who in 1997 coerced people to create a shield against unjust aggression. Fearing the coalition forces entering the country, Hussein proclaimed that the Iraqi citizens voluntarily gathered near potential targets. 96 The so-called volunteers shielded factories and installations because they were aware of painful consequences if they would stand by their dictator. Individuals were compelled to shield factories and other installations yet were under the legal protection against direct attack. The ICRC interprets the in favour of protecting civilians and does not consider them as directly participating in hostilities. The existing legal norms provide protection to human shields assuming that they all are constrained by a superior force, such as state or non-state armed groups that use them for realisation of their policy. The wording of the First Additional Protocol ascribes the accountability only to the coercive actors and excludes voluntary operations of individuals. When considering voluntary human shields, they de facto lose their protection staying close to or directly in a military target even if they would be considered, from the legal point of view, to maintain their civilian protection. Either the actor of shielding as well as the force who directed the actions should subjected to scrutiny. Employment of human shields is a war crime, also classified by the Rome Statute of the ICC97 and it remains questionable whether a voluntary human shield is committing this 95

Additional Protocol I., Article 51(7) DR. NADA AL-DUAIJ: The Volunteer Human Shields in International Humanitarian Law, p. 128 97 Rome Statute of the International Criminal Court, Article 8(2)(b)(xxiii) 96

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crime too. According to the definition of human shielding as a crime, we may say that also if performed in voluntary fashion most of the element criteria are met. The elements of the crime of using protected persons for shielding follow as: 1) The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict. 2) The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations. 3) The conduct took place in the context of and was associated with an international armed conflict. 4) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

As we can observe, voluntary human shields could easily fulfil the conditions except the first one, which describes the use of shields and does not refer to shields as such. The existing law narrows the focus on international armed conflicts with state actors as acting in the position of the belligerent party to the conflict.

It is apparent that clear reference to voluntary human shields has not been made in international law, yet we might see the reach out of the former contemplation of drafters in practice. After all, the law should be operated with accordingly to the ‘evolving nature of warfare’98. Hence, the status of voluntary human ought to be discussed by legal bodies.

The surrounding of Ramallah in 2003 is one of many examples of volunteer shielding. Palestinian civilians encircled Yasser Arafat’s headquarters to prevent an attack by Israeli forces.99 Likewise in 2006, Palestinian women were in invited to a mosque where Hamas militants sought shelter and protection from Israeli security forces. The Hamas fighters then could leave the mosque accompanied by female volunteers and masked with women’s clothes. This behaviour of the opposition combatants lets Israel to struggle on how to fight volunteer human shields. Since it is not completely plausible to treat Hamas as a power with constant ability to control its command over Palestinian 98

DR. NADA AL-DUAIJ: The Volunteer Human Shields in International Humanitarian Law, p. 120 Ibid, p.125

99

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people, we may consider the women shielding targetable objects as volunteers. The level of intervention in this case made Israel to decide to treat them as persons directly participating in hostilities without the protection against attack during the time of shielding. The Supreme Court of Israel claimed about human shields in its judgment in case of Targeted Killings that:

‘if they are doing so because they were forced to do so by terrorists, those innocent civilians are not to be seen as taking a direct part in the hostilities. They themselves are victims of terrorism. However, if they do so of their own free will, out of support for the terrorist organization, they should be seen as persons taking a direct part in the hostilities’100.

However, the interpretation by the ICRC differs from the standing of Israel and its courts. The ICRC states that there is some margin of judgement. The restriction of direct participation to military operations and combat is too narrow, while widening of the concept to all acts of war effort too broad. Thus in current armed conflicts civilians do take part in hostilities, albeit this participation is indirect. 101 The combatant-like treatment then only embraces those who would need to be in reach of direct chain of command or accountability for their action.

The missing link of voluntary human shield in humanitarian law polarises the interpretations in direct and indirect participation approach. Actions of human shields might be considered as direct participation, since they hinder the adversary from attack from the legal point of view. However, a group of people is blocking a road is no real barrio for armed forces and their machinery. For instance, civilians shielding a military target do not constitute a real impediment to airstrikes but the attacker will rest cease its military operation in fear of breaching the law.

The ambiguities in civilian protection The interpretation of legal scholars is not united in the point of direct participation of voluntary human shields. The approach of the ICRC, the Human Rights Watch and many professionals tends to favour the maintenance of civilian status and the 100 101

HCJ 769/02 para 36, above DPH Guidance, above

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undisturbed right to protection against direct attack. Their analogy stems from the denial of the fact that voluntary human shields actively pose a threat or cause harm to the adversary. The presence of civilians deliberately creating an obstacle to enemy forces will not always suffice in rendering the attack itself. Even though their the law might stand on their side the military necessity is weighs out the loss of individual lives. A more approachable employment of this interpretation would be possible if there is a tolerable application of principle of distinction. Civilians would anyway de facto lose their protection since they find themselves close to military targets.

On the other hand, the interpretation could also incline to the other direction when action of voluntary human shields are considered to constitute direct participation. 102 The purport is their will to serve the military interest of one belligerent party to the conflict. The aim of human shields establishes aid to the enemy and thus is targetable. However, a temporal ambit must be considered as well and the loss of protection apply only to the duration of shielding action. The time limitation offers an advantage of interchanging between statuses of a civilians direct participant and a civilian in its proper sense. To the disadvantage of the state-actors in the conflict, such common shifting of faces erodes the concept of distinction.

The gap left in the law drives opponents of human shielding tactic to exclusion of directly participating civilians from civilians. Meanwhile, they do not become combatants, their standing furnishes them with referral to subcategories of unlawful combatants. Then, the act of unprivileged combatancy can be prosecuted by local judicial bodies. The action undertaken by civilians may be granted a definition of a war crime or treason. The ambiguity of the status exposes human shields to loosening of civilian protection and gives space to constitution of civilian classes during war.

Furthermore, voluntary human shields step out from other non-combatants as mercenaries, guerrilla fighters or private contractors. The dispensation from others lies in alternative nature of negative and nonviolent participation in hostilities. In an armed conflict, shielding is an obstacle for direct attack but as a method of political participation it might be of great potential. Voluntary human shields try to recourse the passive position of civilians in a conflict and give voice to those who will at most 102

Dinstein, 2004; Schmitt, 2009; Rubenstein and Roznai, 2011

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impacted by the result of war. Any actions of civilians are depoliticised by belligerents who play the leading roles. Therefore human shields attempt to challenge the status quo and settle a new position for politically active non-state players.

Eventually, perhaps the most ambiguous point of the topic is the principle of military necessity. The application of this principle as a legal instrument can limit the civilian protection and break through the humanitarian interest of the law. Comprehensive relation between military and civilian objections is guided, in favour of the military, by the standard of collateral damage. I personally endorse the opinion of Van Engeland who calls for re-humanisation of current humanitarian law103. The goal of human shields is possibly the interaction with belligerents and the reminding of necessary adherence with law and moral in war.

103

Anicee Van Engeland: Civilian or Combatant?: A Challenge for the 21st Century (Terrorism and Global Justice), Oxford University Press (April 19, 2011)

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Conclusion The interpretation of direct participation on hostilities puts loss of civilian protection in the context of humanitarian law. The presented analysis demonstrates that the interpretation has developed in relation to individuals and groups in an attempt to cover the complex range of situations when civilian fighters or non-combatants engage in hostilities. My introduction into the topic of direct participation in hostilities presents a spectrum of opinion applicable to contemporary situations in armed conflicts. Practice inevitably challenges legal interpretation and since state armed forces increasingly face attack from a wide range of actors, including those who may appear to be civilians, rules must be modified to meet the context of modern warfare. Who is considered to be directly participating in hostilities and may lose his civilian protection is the essential question in this thesis. The ICRC’s Guidance on Direct Participation in Hostilities interprets the existing law with the most care of applying the principle of humanity and avoids any questionable interpretation favourable to practicality of military operations. On the other hand the practice of states, such as Israel and U.S., try to come up with an alternative style that avoids the revolving-door in the concept of civilian protection. Therefore, a careful assessment must be undertaken before targeting of civilians occurs. Eventually, it is today perhaps more important than ever that IHL serves as protection in armed conflicts. Daily, we can see insurgencies and terrorist attacks getting more and more common, leading to devastating effects for those affected. New instruments governing these types of asymmetric conflicts in more detail would certainly be helpful. However, since it is a very long way before such legal instruments would establish a common practice of states and non-state actors, it would be a useful first step if states could start agreeing upon fundamental definitions and unite against the increased violence directed against innocent civilians.

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List of references Literature: Yoram DINSTEIN; The Conduct of Hostilities under the law of International Armed Conflict;2nd edition, Cambridge University Press 2010;p.320 ISBN: 978-0-521-12131-6; Yoram Dinstein: Distinction and Loss of Civilian Protection in International Armed Conflicts; International Law and Military Operations / Michael D. Carsten, ed.; Naval War College 2008; ISBN1884733557 Dieter FLECK (ed.), The Handbook of International Humanitarian Law, 2nd edn., Oxford: Oxford University Press, 2008, 775pp; ISBN 978-0-19-923250-5 Rod THORNTON: Asymmetric Warfare: Threat and Response in the 21st Century. Hoboken, N.I.: Wiley; Polity Press 2007, ISBN: 074563365X Zegveld, Lisbeth; Kalshoven, Frits, Constraints of the Waging of War – an introduction tointernational humanitarian law, ICRC, 2001; ISBN:978-1-107-01166-4 Anicee Van Engeland: Civilian or Combatant?: A Challenge for the 21st Century (Terrorism and Global Justice), Oxford University Press (April 19, 2011), p.192, ISBN13: 978-0199743247

Articles: Charles GARRAWAY: The Changing Character of the Participants in War: Civilianization of Warfighting and the Concept of “Direct Participation in Hostilities”; International Law Studies Volume 87; Naval War College Newport, Rhode Island 2011; Gillard, Emanuela-Chiara, Business goes to war: private military/security companies and international humanitarian law, International Review of the Red Cross, Vol. 88, Number 863, September 2006 Henckaerts, Jean-Marie; Doswald-Beck, Louise, Customary International Humanitarian Law, Volume 1: Rules, Cambridge University Press, 2005 Sassòli, Marco, State Responsibility for violations of international humanitarian law, International Review of the Red Cross, Vol. 84, Number 846, June 2002 Schmitt, Michael N., War, International law, and Sovereignty: Reevaluating the Rules of the Game in a new Century: Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, Chicago Journal of International Law, winter 2005 Schmitt, Michael N., Direct Participation in Hostilities and 21st Century Armed Conflict, Krisensicherung und humanitärer Schutz, 2004 Singer, Peter W., War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law, Columbia Journal of Transnational Law, January 2004, 45

Singer, Peter W., Corporate Warriors: The rise of the Privatized Military Industry, Cornell University Press, 2003 Walker, Clive; Whyte, Dave, Contracting out of War? Private Military Companies,Law and Regulation in the United Kingdom, International and Comparative Law Quarterly, July 2005 Watkin, K.W., Combatants, Unprivileged Belligerents and Conflicts in the 21st Century,Background Paper prepared for the Expert Meeting on the Reaffirmation and Development of International Humanitarian Law, Cambridge, January 2003 Quéguiner, Jean-Francois, Direct Participation in Hostilities under International Humanitarian Law, Working Paper, International Humanitarian Law Research Initiative – Reaffirmation and Development of IHL, November 2003 Newspaper Articles etc. Amnesty International: Israel/Gaza: All sides must protect civilians as conflict escalates; 8 July 2014; https://www.amnesty.org/en/articles/news/2014/07/israelgaza-all-sidesmust-protect-civilians-conflict-escalates/ Terrence McCoy: Why Hamas stores its weapons inside hospitals, mosqueand schools; The Washington Post; July 31, 2014; http://www.washingtonpost.com/news/morningmix/wp/2014/07/31/why-hamas-stores-its-weapons-inside-hospitals-mosques-andschools/ Reports etc.: ICRC. Third Expert Meeting on the Notion of Direct Participation in Hostilities. Geneva, 23 – 25 October 2005. Summary Report ICRC. Second Expert Meeting. Direct Participation in Hostilities under International Humanitarian Law. The Hague, 25-26 October 2004 ICRC. Direct Participation in Hostilities under International Humanitarian Law, Report prepared by the ICRC, September 2003 ICRC. Commentary to Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 ICRC. FAQ. International humanitarian law and private military/security companies. 23 May 2006 ICRC. Privatization of War. 23 May 2006 ICRC. The ICRC to expand contracts with private military and security companies. 4 August 2004 ICRC. The ICRC and Business Enterprises, December 2006

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UN HUMAN RIGHTS COUNCIL. Report of the United Nations Fact-Finding Mission on the Gaza Conflict; A/HRC/12/48 25 September 2009 IHL treaties: Annex to the 1907 Hague Convention IV: Regulations Respecting the Laws and Customs of War on Land Hague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, of 18 October 1907 Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in time of War,12 August1949 Lieber Code, General Orders No. 100, 1863 Protocol (I) Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 Protocol (II) Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977 Rome Statute of the International Criminal Court, 2187 UNTS 90 Cases: ICTY: Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Trial Chamber, Judgment of 3 March 2000 Supreme Court of Israel: HCJ 769/02, The Public Committee Against Torture in Israel v. the Government of Israel, 11 December 2006 Websites: ICRC: www.icrc.org

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