| By A. P. V. Rogers
During an armed conflict, only “combatants” are permitted to “take a direct part in hostilities.” Noncombatants who do so lose any protected status that they might have. That is likely to mean that they lose their protection from attack; they are not entitled to be treated as prisoners of war; and they are liable to be prosecuted either as war criminals or, where domestic law applies, as common criminals in respect of any attacks on people or property they have carried out. Some, but not all, authorities consider that unprivileged belligerency or unauthorised combatancy is a war crime in itself. Combatants are all members of the armed forces of a party to the conflict except medical and religious personnel. Members of a levée en masse are also regarded as combatants. Combatants cannot be punished for their hostile acts and if captured can only be held as POWs until the end of hostilities. The term “taking a direct part in hostilities” certainly includes attacking enemy combatants or military objectives and it may extend to some support activities but the precise meaning of the term remains controversial. The armed forces consist of all organized armed forces, groups and units which: a. are under a command responsible for the conduct of its subordinates to a party to the conflict; b. are subject to an internal disciplinary system which enforces compliance with the law of armed conflict; and c. whose members, at least when deployed on military operations, wear uniform or combat gear that distinguishes them from the civilian population.
Medical and religious personnel, like civilians, are noncombatants. They may not take a direct part in hostilities and so long as they do not do so are legally protected from attack. Medical personnel may, however, use small arms in self-defence if unlawfully attacked. Religious personnel are not armed. The composition of the armed forces is a matter for the State or faction concerned. Its components may be regular units, reservists, territorial defence units, citizens called up for part-time service or full-time soldiers as long as the conditions set out above are fulfilled. It is normal for members of the armed forces to have ranks, the more senior ranks having power to give orders to, and exercise discipline over, their subordinates. Violation of the law of armed conflict does not mean loss of combatant status so long as those responsible are tried and punished. If members of an armed group consistently violate the law of armed conflict and are not punished, that is strong evidence that the group does not qualify as “armed forces”, since it fails to meet the criterion of an internal disciplinary system, and that its members do not have combatant status. In unusual circumstances where it is impossible to wear uniform or combat gear all the time, such as when operating in areas under adverse occupation, behind enemy lines or, in liberation conflicts, in areas controlled by government forces, combatants must, at the very least, carry their arms openly during military engagements or when visible to the enemy in military deployments preceding the launch of any attack. When they surrender or are captured, combatants are entitled to be treated as prisoners of war, though this can mean their internment until the close of active hostilities. If there is any doubt about their status, this must be resolved by a properly constituted tribunal. Unauthorised combatants, or unprivileged belligerents, who surrender or are captured may also be interned if the security of the detaining State makes it absolutely necessary. Those of them who qualify as “protected persons” under the Geneva Civilian Convention are entitled to the protection of that convention. Others are entitled at the very least to the rights of humane treatment and of fair trial. |
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