CHAPTER 6 INDIVIDUAL BATTLEFIELD STATUS

LAWFUL COMBATANTS/ PRISONERS OF WAR

General Classes of enemies in regular war:

1. Combatants (have the right to participate directly in hostilities); and
2. noncombatants.

Combatants fall into two categories:

1. members of the armed forces of a party to a conflict other than medical and religious
personnel)
2. any others who take a direct part in hostilities

The defining distinction of the lawful combatant’s status is that upon capture he or she is entitled to
the protections of the POW.

Downside of combatancy: a lawful combatant enjoys the combatant’s privilege, but also is a
continuing lawful target.

Citizenship is not the point of lawful combatancy; membership in an army of a party to the conflict
is the issue.

Common Article 2 makes clear that all of the Geneva Conventions continue to apply during cases of
partial or total occupation.

There are no POW and combatants, whether lawful or not, in common Article 3 conflict.

RETAINEES

1. are not POWs but they receive the same treatment as POWs.

2. They are the chaplains, officers of the medical staff, apothecaries, hospital nurses and servants
falling into the hands of the opponent but they are retained for some reasons.

3. Medical personnel and chaplains, although members of the armed forces, are not combatants.

NONCOMBATANT MEMBERS OF THE ARMED FORCES VERSUS

NONCOMBATANT MEMBERS OF THE GENERAL POPULATION OF THE
BELLIGERENT STATE

1. The presence of noncombatant members of the armed forces at a military objective does not
require an attacking enemy to take any special precautionary measures, as would the presence of
civilians.

2. Orderlies and chaplains assistants are armed and may lawfully directly participate in hostilities.
OTHERS WHOSE STATUS UPON CAPTURE IS POW

Remember: POW status arises only in common Article 2 international armed conflicts. In such
conflicts the 1949 Geneva Conventions apply in toot, along with the 1977 Additional Protocol I.

Lawful combatants make up the greater number of POWs. The other 6 groups under the 1949
POW Convention:

1. Members of Other Militias and Members of Other Volunteer Corps.

2. Regular Armed Forces Professing allegiance to an unrecognized Authority
3. Persons who accompany the armed forces without being members thereof
4. Merchant Marine and Civilian Aircraft Crews
5. Levee en Masse
6. Demobilized Military Personnel and Military Internees in Neutral Countries

1. Members of Other Militias and Members of Other Volunteer Corps. “reserved armed
forces”; not integrated in the nation’s armed forces but nevertheless actively participates in
hostilities. Requirements:
1. being commanded by a person responsible for his subordinates
2. having a fixed distinctive sign recognizable at a distance
3. carrying arms openly
4. conducting their operations in accordance with the laws and customs of war

Modification under the 1977 Additional Protocol I : requirements (2) and (3) which requires that
combatants distinguish themselves “fixed distinctive sign” only while in an attack or preparatory to
an attack and, if they cannot do that because of the nature of the situation, they still must carry their
arms openly during that period.

Additional 3 requirements for POW status of members of militias and other volunteer grouos:
1. hierarchical organization
2. belonging to a party to the conflict
3. nonallegiance to the detaining power

2. Regular Armed Forces Professing allegiance to an unrecognized Authority

3. Persons who accompany the armed forces without being members thereof
- Examples: war correspondents, supply contractors, members of labour units or services
responsible for the welfare of the armed forces, provided that they have received
authorization from the armed forces which they accompany, who shall provide them with an
identity card.

4. Merchant Marine and Civilian Aircraft Crews

-Not included in this category are civilians who are aboard ship or aircraft not as crew, but
passengers.
- Medical aircraft are exempt as well as fishing boats.
5. Levee en Masse means the people of that portion of an invaded country which is not yet
occupied by the enemy, at the approach of a hostile army, may rise en masse to resit the invader, and
if captured, are prisoners of war.

They are inhabitants of a nonoccupied territory who, on the approach of the enemy, spontaneously
took up arms to resist the invading force without having had time to form themselves into regular
armed units, carrying their arms openly and respecting the laws and customs of war.

Partisans, rebels, guerillas, and insurgents, are not levee en masse for they are not a last ditch defense
of a country.
Levee en masse can lawfully exist only during the actual period of invasion - a commonArticle 2
conflict. Resistance beyond the period of the actual invasion must be conducted by regular forces, or
the levee members must be incorporated into regular forces.

6. Demobilized Military Personnel and Military Internees in Neutral Countries

DIRECT PARTICIPATION IN HOSTILITIES

Direct participation in hostilities is a concept that applies only to civilians, and the hostilities may be
either international or non-international.

3 Criteria to be met for a civilian to be considered directly participating in and Artcile 2 international
armed conflict:

1. The civilian’s acts must be likely to adversely affect the military operations of a party to the
conflict or, alternatively, be likely to inflict death, injury or destruction of persons or objects
protected against direct attack. (Threshold of harm requirement)
- that the harm actually occur is not required, only that there is an objective likelihood that it
will occur.

2. There must be a direct causal link between the act and the harm likely to result. (Requirement of
Direct causation)

3. the act specifically be designed to directly cause the required threshold of harm in support of a
party to the conflict and to the detriment of another. (belligerent nexus between the civilian’s
act and the resultant harm).

Organized Group

1. Non-state party to a non-international conflict is comprised of individuals whose function is to

take a direct part in hostilities. The defining criterion for such individuals is that they have a
continuous combat function.

Continuous Combat Function

1. A civilian’s unorganized or occasional hostile act does not constitute membership in an organized
armed group or represent continuous combat function.

UNLAWFUL COMBATANTS/UNPRIVILEGED BELLIGERENTS

1. Unlawful combatant is a term frequently employed by the United States to mean a de facto
individual status.

2. They are the persons taking a direct part in hostilities without being entitled to do so and who
therefore cannot be classified as prisoners of war on falling into the power of the enemy.

DETAINEE, ENEMY COMBATANT, AND UNLAWFUL ENEMY COMBATANT

DETAINEE

1. Refers to any individual captured on the battlefield, the circumstances of whose capture do not
immediately indicate a status. May include the following categories:
1. enemy combatant
2. lawful enemy combatant
3. unlawful enemy combatant
4. enemy POW
5. retained person
6. civilian internee