Author: Annalisa Clarizio
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Date of Publication: 14/06/2023
In international law several states have signed conventions that determine the rules of war. First of all, the principle of distinction is fundamental for which attacks that do not affect fighters and military are prohibited.
Conduct of military operations
According to fundamental principles in the conduct of military operations it is necessary to distinguish two categories of fighters.
The first category is the privileged fighters who qualify for the status of prisoner of war at the time of capture. Privileged fighters can be members of the armed forces, members of militias or volunteer corps part of armed forces.
Not privileged fighters
The second category is the not privileged fighters who are not entitled to prisoner of war status when captured by the enemy. These fighters are for example spies, mercenaries, saboteurs.
Regular and not regular fighters
There are then regular fighters and not regular. Regular fighters are members of the armed forces and voluntary militias such as those of the foreign legion. While being part of the armed forces are not considered fighters, health personnel and spiritual assistants.
The members of the volunteer corps outside the armed forces can benefit from the status of prisoners of war only if they respect strict requirements.
The first requirement is the chain of command and control. According to this the volunteer corps must be led by a person responsible for subordinates.
The second requirement is a visible distinctive sign: they must have a fixed and recognisable distinguishing sign at a distance.
The third requirement is visible weapons: they must openly carry weapons.
The mass rise
Many elements are described in international convention as the mass rise.
The mass rise occurs when the population of an unoccupied territory sees the approach of the enemy. Moreover, it occurs when the population decides to take up arms spontaneously and fight. Weapons must be brought openly and the rules of law of armed conflict must be respected in this case too. Mass raising is never possible in an already occupied territory where organized movements of resistance can be formed.
Another element is the resistance. The resistance forces during World War II contributed to the liberation of the territories occupied by Nazis. At the time they were considered as legitimate fighters so in case of capture they did not have the status of prisoner of war. Now instead under humanitarian law members of the organized resistance corps are considered legitimate fighters.
Fighters in Geneva Convention
Members of national liberation movements are also considered to be combatants under the Geneva Convention. These are those who fight against colonial domination, foreign occupation and racist regimes. They also fight in the exercise of the right of self-determination of peoples.
The guerrillas are organized fighters who do not participate in the field clashes but hit the enemy with targeted actions in small units. Guerrillas always have the support of the local population.
Israel and the United States opposed the extension of legitimate combatant status to liberation movements and guerrillas. For this reason, the equivalence between regular and irregular combatants has never become part of customary law. This equivalence applies only to states signatory to the first protocol of the Geneva Convention.
Fighters have only one duty under the first protocol: to distinguish themselves from the civilian population during an attack or military operation. If this does not happen they lose the status of legitimate fighter and the privilege of the treatment given to the prisoner of war.
The general rule in Geneva Convention
The Additional Protocol to the four Geneva Conventions of 1977 to Article 51 lays down a general rule. According to this rule the civilian population enjoys general protection against the dangers arising from military operations.
This general rule is very extensive:
1. civilians must not be directly attacked;
2. the population must not be subjected to acts of threat or violence aimed at spreading terror;
3. civilians must not be subjected to indiscriminate attacks that affect indiscriminately military targets;
4. civilians must not suffer reprisals;
5. civilian movements should not be used to secure areas or targets from military operations.
Difference between direct and indirect participation in hostilities
Finally we can speak about direct and indirect participation in hostilities.
The direct participation occurs when there is the use of weapons against the enemy and the collection of information on behalf of their part. Also you can talk about direct participation for the transport of fighters, weapons or ammunition in the places of operations.
It’s important an Israeli Supreme Court ruling on targeted Israeli executions in the Palestinian territories. This ruling included those who offer themselves as human shields in the conflict. It also broadens the notion of direct participation to the point of including conduct outside the conflict’s geographical area.
Indirect participation occurs with the supply of food or medicines even if sent to the opposing party. In case of doubt to the status of a fighter or his belonging to the category of civilians, Article 5 of the Third Geneva Convention shall apply. For this article, people who have fought and been captured by the enemy shall enjoy the protection of the Geneva convention. This is possible pending its being determined by the competent court.