Presentation on theme: "Protected Persons Matthew J. Festa Professor of Law, South Texas College of Law Associate Professor, International & Operational Law, U.S. Army Judge Advocate."— Presentation transcript:
Protected Persons Matthew J. Festa Professor of Law, South Texas College of Law Associate Professor, International & Operational Law, U.S. Army Judge Advocate General’s Legal Center & School* *Non-attribution policy: materials and ideas presented are those of the instructor and, are not to be attributed to any institution or to the U.S. Government
I NTERNATIONAL H UMANITARIAN L AW K EY I SSUE : C OMBATANTS V. C IVILIANS
W HO IS A L AWFUL C OMBATANT ? Hague IV (belligerents) / GC III (POW) definitions Armed forces of a State party to a conflict—art. 4(1) Militia / volunteer corps / org resistance movements belonging to a State party if (art. 4(2)): Under responsible command; Fixed, distinctive, recognizable sign; Carry arms openly; & Conduct operations IAW laws of war AP I (art. 43(2)) (1977) Members of the armed forces of a Party to the conflict Under AP I, a “Party” is a State (with a limited exception that the United States rejects)
L AWFUL C OMBATANT S TATUS Right to participate directly in hostilities Lawful targets Excludes those hors de combat / non-combatants Combatant Immunity Legal privilege for combatants to use lethal force Except war crimes/not connected to armed conflict Entitled to POW status if captured
N ONCOMBATANTS Medical / Medical Admin / Chaplains IAC (GC I) Exclusively engaged Exclusively engaged Abstain from hostile acts Abstain from hostile acts Respect and Protect Respect and Protect Retained Personnel Not POWs Retained Personnel Not POWs Armlet / ID card—art. 40 Armlet / ID card—art. 40 NIAC (CA 3 / AP II) Respect and Protect Respect and Protect Wear emblem Wear emblem
R ETAINED P ERSONNEL ? Al Warafi v. Obama -May 24, 2013 Al Warafi claim: GC I, art. 24 status DC Circuit Ct denied Habeas Petition Captured during early part of Afghan war – possibly as part of State armed force in an IAC (not decided) Holding: GC I status requirements not applicable because “mandatory indicia” required by GC I art. 40 not met Concurrence: Not all of GCs will apply as broadly as CA 3
DPH (Direct Participation in Hostilities) Civilians shall enjoy the protection afforded by this section/part, unless and for such time as they take a direct part in hostilities. AP I, art. 51(3) AP II, art. 13(3)
U NPRIVILEGED B ELLIGERENTS Targetable (DPH/CCF) Not entitled to engage in combat activities Traditionally: War criminals or national criminals War criminals or national criminals Not expressly recognized in GCs but arguably by AP I (arts. 44(4); 45(3)) & AP II (e.g., art. 1(1)) No combatant immunity
D EFINING C IVILIANS GC IV (1949) – not defined AP I (1977) “The civilian population comprises all persons who are civilians” –art. 50 “The civilian population comprises all persons who are civilians” –art. 50 Civilian ≠ Combatant (defined in the neg.) Civilian ≠ Combatant (defined in the neg.) CA 3 / AP II – not defined
C IVILIANS IN M ILITARY O PERATIONS General population, including: Wounded/injured/ displaced Criminals Rescue workers/ police/ first responders, including national Red Cross Civilians accompanying the forces Third country nationals, including ICRC, NGOs, security contractors, journalists, etc.
P ROTECTIONS FOR CIVILIANS < 19 th Century Lieber Code (1862) Hague (1899/1907) GCs < WWII IAC GC IV (1949) GC IV (1949) AP I AP I NIAC CA 3 CA 3 AP II AP II
T REATY VS. C USTOMARY L AW Of 4 GCs, only GC IV expressly protects civilians (other than civilians accompanying forces) Under GC IV, greatest protection afforded to “protected persons” AP I expands protection to all situations in IACs United States not party to AP I but fills gaps as customary law or by policy Less protection for civilians in NIACs generally CA 3 applies; AP II (US not party) or CIL also fills gaps
Questions? Matthew J. Festa South Texas College of Law Dept. of Int’l and Operational Law U.S. Army Judge Advocate General’s Legal Center and School Phone 713.646.1857 firstname.lastname@example.org
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