Engaging civilian-belligerents leads to self-defense/Protocol I marriage

Army Lawyer, July, 2007 by Albert S. Janin

I. Introduction

The belligerents waging intense armed attacks against government armed forces in Afghanistan and Iraq are not agents of a Geneva Convention "high contracting Party," or any nation-state, or any armed force within the meaning of the law of war. They are non-uniformed "civilians," as are the militants conducting transnational suicide attacks around the world. This reality has profound operational and legal implications.

A dizzying array of legally charged terms are applied to persons found on or near a battlefield: armed forces, militias, spies, mercenaries, guerrillas, terrorists, revolutionaries, combatants, lawful combatants, unlawful combatants, noncombatants, belligerents, unprivileged civilian belligerents, civilians, protected persons, civilians accompanying the force, contractors, etc. One commentator enumerates those in legal peril on the battlefield--unlawful combatants, saboteurs, guerrillas, spies, mercenaries, and pirates--and states that "[n]one of this sheds much light on the law in relation to terrorism." (1) He then adds "unlawful belligerent" to the stew in an effort to classify terrorists, and suggests a way to fill a dangerous void in conventional law. (2) Unfortunately, the proposal never acquired the force of law. The threat (e.g., al Qaeda jihadist) or grocer-by-day/sniper-by-night problem must be addressed within the two-classification system of civilian or combatant until the law changes. (3)

"Though non-state combatants are inevitably part of the equation during internal armed conflict, they have almost no place legally in the structure of interstate conflict." (4) This article assumes an international armed conflict in order to discuss Additional Protocol I and enable the comparison to customary international law. Conflict-characterization and identification of the controlling body of law is complex and often debatable. The Geneva Conventions and Additional Protocol I are not universally applicable. (5)

Infantrymen do not care that the person hiding amongst the civilian population plotting to kill them is labeled an unlawful belligerent, unlawful combatant, terrorist, or a lawful guerrilla fighter. Their worries are (or at least should be) mission accomplishment, legal compliance, and survival with honor. Unfortunately, insurgencies are treacherous, (6) while positive international law can rationally be interpreted to place armed forces (7) engaged in counterterrorism and counterinsurgency operations in an untenable position, subject to an all-too-lethal double standard.

This article uses a hybrid term of civilian-belligerent in order to be consistent and functionally precise. The purpose is not to add yet another term to this body of law but merely to be descriptive. This article will also use the terms guerrillas, insurgents, and terrorists to describe people who physically carry out organized armed attacks, yet are de jure "civilians" according to Additional Protocol I. (8)

The law of war's "Basic Rule" (9) requires force to be directed at combatants and away from civilians. Unfortunately, contemporary operational realities make implementation of this Basic Rule extremely challenging because many combatants appear to be civilians and base their operations amongst non-combatants.

The lethal problem of civilian-belligerents is now the customary trend in warfare rather than the exception to the rule. Article 51(3) of Additional Protocol I contemplates this phenomenon to a limited extent, and permits the use of force against civilians "for such time as they take a direct part in hostilities." (10) The United States is not a party to Additional Protocol I, but regards the Basic Rule as a codification of the principle of distinction (11) and invokes the inherent right of self-defense to justify the use of force against civilian-belligerents. Israel is also a non-party and applies a policy similar to the United States. (12) On the other hand, the United Kingdom did ratify Additional Protocol I and is bound by Article 51(3). (13) All three countries have extensive, recent experience with civilian-belligerents. Each of these approaches will be discussed in this article.

This article will discuss the Additional Protocol I and self-defense differences that pertain to the counterinsurgency or counterterrorism operations. Specifically, it will explore the extent to which "direct part in hostilities" and "imminent attack" are related for targeting purposes. An appreciation of the context in which these legal standards will be applied and how the military controls the use of force is essential. Part II discusses insurgencies and counterinsurgencies. Part III covers the criteria that govern force-employment against civilians. Part IV discusses the inherent right of self-defense. Part V pertains to rules of engagement, distinguishes between status and conduct, and provides examples from the conflict in Iraq. Part VI explores targeted killing, the practical point of divergence for Additional Protocol I and self-defense law. Like civilian-belligerents and non-combatants, conventional law and customary law blend together. The article concludes that the legal issue falls within the scope of substantially similar legal standards; as a result pragmatic, not legal, considerations more powerfully restrain indiscriminate force.