the combatant status of non-state actors in international armed conflicts, in light of the notion of

431 Pages·2014·4.88 MB·English

THE COMBATANT STATUS OF NON-STATE ACTORS IN INTERNATIONAL
ARMED CONFLICTS, IN LIGHT OF THE NOTION OF DIRECT PARTICIPATION
IN HOSTILITIES
An analysis of relief workers, journalists, voluntary human shields, private military
and security contractors, and under-aged child soldiers recruited into non-State
organized armed groups

Submitted in fulfillment of the requirements for a PhD through publications
University of KwaZulu-Natal

November 2012
Durban, KwaZulu-Natal, South Africa

Shannon Joy Bosch
BA (Hons) LLB (University of Natal) LLM (Cambridge)
Senior Lecturer, Howard College School of Law, University of KwaZulu-Natal
Attorney of the High Court of South Africa
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DECLARATION

This thesis has not previously been submitted for a degree in this, or any other
university, and it is wholly my own original work.

Shannon Joy Bosch

Ethical clearance approval: HHS/0765/012D

ACKNOWLEDGEMENTS

I wish to acknowledge the kind assistance of the following persons who supported
me during this academic endeavor:

Prof Marita Carnelley (Phd Supervisor)
Prof Managay Reddi (Dean of Law)
Prof Michael Cowling (initial Phd supervisor and IHL mentor)
Major Anthony PV Rogers (IHL mentor at the University of Cambridge)
The Editorial boards and peer reviewers of the following journals:
Comparative and International Law Quarterly of South
African Yearbook of International Humanitarian Law
African Security Review
Journal for Juridical Science
South African Yearbook of International Law
Dr David Barraclough (format editor)
Mrs Jo-anne Du Plessis (format editor)
Mrs Kadephi Majola (GMJ Sweeney Law librarian)
Mrs Seema Maharaj (EG Malherbe librarian)
Mr Alan Bosch & Masters Joel and Noah Bosch
Mr Timothy Goodricke & Mrs Wendy Goodricke
Rev Fred Bosch & Mrs Vera Bosch

In loving memory of:
Grace Bosch
Doreen and Dennis Howe
Joyce and Guy Goodricke

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ABSTRACT

The increased outsourcing of many traditionally military functions, together with the
fact that international armed conflicts are increasingly being fought in predominantly
civilian locations, is contesting the international humanitarian law (IHL) presumption
that civilians are necessarily non-participatory spectators in the theatre of war. The
legal lacunae which surrounds non-State actors like: private military and security
contractors (PMSCs), under-aged child soldiers, voluntary human shields (VHSs),
relief workers and journalists, is complicating the legal assessment of their primary
IHL status, obscuring crucial determinations around whether their actions amount to
direct participation in hostilities, and confounding certainty around the legal regime
applicable to them upon capture. Through critical analysis of customary and treaty
based IHL, this project explores the primary IHL status of each of these types of
non-State actors. Thereafter it seeks, through practical application of the ICRC’s
Interpretive Guide on the Notion of Direct Participation in Hostilities, to draw specific
conclusions on the range of activities that might compromise their civilian immunity
against direct targeting. In the final analysis the study concludes that engaging in
combat functions, operating weapons systems, participating in direct support
functions, conducting training for predetermined hostile acts, sabotaging military
capacity, guarding captured military personnel, gathering intelligence for use in
marking targets, divulging tactical information or acting as a lookout will amount to
direct participation in hostilities. Through similar investigation, the study concludes
that mere interference, defensive guarding or shielding of civilian or other dual-use
sites, and the defense of military installations against criminal elements, fails to rise
to the threshold required to compromise a civilian non-State actor’s immunity
against attack. While dispelling the misconception that civilian status itself can be
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legally forfeited, the project explores the practical legal consequences of civilian
direct participation in hostilities: including legitimate direct targeting of these non-
State actors for so long as their participation or membership of the combative group
persist, and their criminal prosecution upon capture.

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TABLE OF CONTENTS

CHAPTER 1:
INTRODUCTION 1
1.1 Research hypothesis and rationale 8
i Hypothesis and rationale for selecting these five particular non-State
actors 8
ii Hypothesis and rationale for limiting this analysis to the legal regime
applicable to international armed conflicts 9
iii Hypothesis and rationale for addressing the issue of status under
IHL 13
iv Hypothesis and rationale for canvassing the notion of direct
participation in hostilities 14
1.2 Research framework 15
i Literature review 15
ii Published chapters 16

CHAPTER 2:
THE INTERNATIONAL HUMANITARIAN LAW CONCEPT OF
COMBATANT STATUS: A LITERATURE REVIEW 19
2.1 Introduction 19
2.2 Defining the term ‘combatant’ 20
i Non-combatant members of the armed forces 21
ii Hors de combat 22
iii Military and religious personnel 22
2.3 The privileges attached to the authorisation to participate in hostilities:
immunity from prosecution and secondary POW status 23
2.4 The consequences attaching to combatant status: continuous lawful
targeting and prosecution for violations of IHL 24
2.5 Forfeiture of POW status and exposure to criminal prosecution 25
2.6 Combatant status prior to the IHL conventions 27
2.7 Combatant status under the Hague Conventions of 1899 and 1907 28
2.8 Combatant status under the Geneva Conventions of 1949 29
i Regular armed forces 30
ii Irregular armed forces 32
iii Persons accompanying the armed forces 37
iv Merchant mariners, civil aviators and the levée en masse 37
2.9 Combatant status under Additional Protocol of 1977 38
i Defining ‘armed forces’ 38
ii Combatant and POW status 40
iii The inviolability of combatant and POW status 40
iv Forfeiture of POW status 41
v Presumptive POW status 47
2.10 Combatant status under customary international law 47
2.11 Conclusion 48

CHAPTER 3:
THE INTERNATIONAL HUMANITARIAN LAW CONCEPT OF CIVILIAN
STATUS: A LITERATURE REVIEW 49
3.1 The historic emergence of the concept of civilian status 49
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3.2 Defining the term ‘civilian’ 50
3.3 Presumptive civilian status 52
3.4 The privileges attached to civilian status: immunity against targeted
attacks 52
3.5 The consequences attaching to civilian status: the notion of civilian
direct participation in hostilities 53
3.6 Civilian direct participation in hostilities: the ‘unlawful combatant’, and
the forfeiture of civilian status 54
i Unlawful combatant: legal term or misleading descriptor? 54
ii Forfeiture of civilian status 58
3.7 The consequences of unauthorised direct participation in hostilities
on the part of civilians 59
3.8 Persons accompanying the armed forces 60
3.9 Conclusion 64

CHAPTER 4:
UNDERSTANDING AND OBSERVING THE INTERNATIONAL
HUMANITARIAN LAW NOTION OF CIVILIAN DIRECT PARTICIPATION
IN HOSTILITIES: A LITERATURE REVIEW 65
4.1 A brief introduction to of the notion of direct participation in
hostilities 65
4.2 The treaty and customary international law basis for the rule limiting
civilian direct participation in hostilities 67
i Direct participation in treaty law 67
ii Direct participation in customary IHL 68
4.3 A brief introduction to the ICRC's Interpretive Guide on the notion of
direct participation in hostilities under IHL 69
i The drafting process and the legal implications of the guide 69
ii Introductory comments on the guide’s limitations & controversies 71
4.4 The specific hostile acts which amount to direct participation in
hostilities 73
i The threshold of harm 74
Military harm 75
Attacks against protected persons 75
Examples of activities which satisfy the threshold of harm
requirement 76
Examples of activities which fall short of the threshold of harm
requirement 77
Critique of the ‘threshold of harm’ requirement 78
ii The direct causation requirement 79
Examples of activities that satisfy the direct causation requirement 81
Examples of activities which fall short of the direct causation
requirement 82
Critique of the direct causation requirement 84
iii The belligerent nexus requirement 86
Examples of activities which satisfy the belligerent nexus
requirement 87
Examples of activities which fall short of the belligerent nexus
requirement 88
Critique of the belligerent nexus requirement 88
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iv General comments regarding the specific hostile acts which
amount to direct participation in hostilities 88
4.5 The temporal scope of the loss of protection ‘for such time as’
civilians take a direct part in hostilities 89
i The parameters of the ‘for such time’ window: execution,
preparation, deployment and withdrawal 91
ii A critique of the ‘revolving door’ concept 93
4.6 The ‘continuous combat function’ and its implications for civilians
participating directly in hostilities 96
i The rationale behind the concept of the ‘continuous combat function’ 96
ii Activating the loss of protection based upon a ‘continuous combat
function’ 97
iii Exclusion and cessation of the ‘continuous combat function’
classification 98
iv A critique of the continuous combat function 99
4.7 Presumptions in assessing direct participation in hostilities 103
i Critique of the presumption’s application to assessments of direct
participation 103
4.8 The legal consequences for civilians found participating directly in
hostilities 105
4.9 Conclusion 105

CHAPTER 5:
THE COMBATANT STATUS OF ‘UNDER-AGED’ CHILD SOLDIERS
RECRUITED BY NON-STATE-ARMED GROUPS IN INTERNATIONAL
ARMED CONFLICTS, IN LIGHT OF THE INTERNATIONAL
HUMANITARIAN LAW NOTION OF CIVILIAN DIRECT PARTICIPATION IN
HOSTILITIES 109
5.1 Introduction 109
5.2 International law response to the issue of recruiting under-aged child
soldiers: IHL, international and regional human rights law,
international criminal law, and evolving customary international law 115
i International humanitarian law 115
ii International and regional human rights law 118
iii International criminal law 120
iv Evolving customary international law 123
5.3 The combatant status of under-aged child soldiers recruited
into non state-armed groups in international armed conflicts 126
i An introduction to combatant status under IHL 126
ii Under-aged child soldiers ‘recruited’ into non-state-armed groups
– ‘civilians’ participating directly in hostilities 129
Specific hostile acts which amount to direct participation in
hostilities on the part of civilians 133
The temporal scope of the loss of civilian immunity on the part of
child soldiers: the ‘for such time as’ or the ‘continuous combat
function’ test 140
5.4 Under-aged child soldiers recruited to participate directly in
hostilities in non-state-armed groups - assessing combatant and
POW status 145

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5.5 Prosecuting under-aged child soldiers recruited into non-state-armed
groups 155
5.6 Conclusion 159

CHAPTER 6:
THE COMBATANT STATUS OF PRIVATE MILITARY AND
SECURITY CONTRACTORS IN INTERNATIONAL ARMED
CONFLICTS, IN LIGHT OF THE INTERNATIONAL
HUMANITARIAN LAW NOTION OF CIVILIAN DIRECT PARTICIPATION IN
HOSTILITIES 161
6.1 Introduction 159
6.2 The importance of primary status under IHL and its legal
consequences 165
6.3 PMSCs as ‘combatants’ 169
i Members of the armed forces of a Party to the conflict 171
Regular armed forces 171
Irregular armed forces 172
ii Non-combatant members of the armed forces 178
Hors de combat 178
Religious and medical personnel 179
Persons accompanying the armed forces 179
Levée en masse, merchant mariners and civil aviators 180
PMSC – can they enjoy combatant status in international armed
conflicts in terms of customary IHL? 180
a) Acting on behalf of, or belonging to a party to a conflict 180
b) Subordinating themselves to the Party’s command 184
c) Behaving in accordance with the laws of war 186
Concluding remarks on the combatant status of PMSCs 187
6.4 PMSCs as ‘civilians’ 188
i ‘Persons accompanying the armed forces’ 189
ii PMSCs as civilians or ‘persons accompanying the armed forces’ 193
6.5 Are PMSCs, today’s mercenaries in a new guise? 195
i Defining a mercenary under IHL 198
Are PMSCs ‘specially recruited’? 199
Do PMSCs take a direct part in international hostilities? 200
Are PMSCs motivated by the desire for private gain, substantially
in excess of that promised or paid to combatants of similar ranks
and functions? 201
Are PMSCs not nationals of a Party to the conflict or residents of
territory controlled by a Party to the conflict? 202
Are PMSCs not member of the armed forces of a Party to the
conflict? 203
Are PMSCs sent by a State which is not a Party to the conflict on
official duty as a member of its armed forces? 203
6.6 Conclusions on the primary status of PMSCs 204
6.7 PMSCs and the notion of direct participation in hostilities 206
i The ICRC’s ‘Interpretive Guide’ 209
ii Specific hostile acts which amount to direct participation in
hostilities 210
The threshold of harm 211
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