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  • Print publication year: 2016
  • Online publication date: May 2018

6 - Individual Battlefield Status

from LAW OF ARMED CONFLICT AND INTERNATIONAL HUMANITARIAN LAW: A FRAMEWORK

Summary

Introduction

We have resolved, more or less, the first foundational question that a LOAC/IHL (law of armed conflict/international humanitarian law) student should answer regarding any armed conflict: What is the conflict status – what law of war, if any, applies in the armed conflict under examination? Now the second foundational question: What are the statuses of the participants in that conflict? For example, are all of them, or someof them, combatants, or are they unprivileged belligerents? Some of themor all of them? Are they civilians or insurgents? Prisoners of war (POWs) or retained personnel? A levée en masse or protected persons?

The first foundational question, status conflict, is critical because it determines if domestic law, limited LOAC or the entire spectrum of LOAC is in play. It is the difference between a criminal trial for murder in a domestic court and POW status with the protection of the combatant's privilege.

The second foundational question, the individual status of those on the battlefield, is just as significant. Individual status determines the rights and protections afforded a fighter, if captured, aswell as the prohibitions that may apply to his/her conduct. If you are the officer-incharge of a military unit ordered to parachute into, say, an African country that has requested U.S. training assistance, and several U.S. Army trainers have already been kidnapped and murdered by a splinter rebel group in the course of an internal rebellion, you know that you probably are going into a common Article 3 armed conflict in which Additional Protocol II probably does not apply – you know LOAC that will apply on your battlefield.

You also want to know if you are going to jump as part of a uniformed airborne unit, in civilian clothes, or disguised as a local resident or as a soldier from a neighboring country. Different statuses are involved, each dictating how you should conduct yourself and how you should be treated, if captured. True, if you are captured by insurgents, it probably will not matter what Geneva calls for – you are in for a hard day; however, one does not observe or disregard LOAC according to the enemy's conduct. We know and respect LOAC because, as a nation, we have pledged to do so through our ratification of particular LOAC-related treaties.

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