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When it comes to armed conflict, special demarcations have been provided under Geneva Convention and its additional protocols in order to determine whether a person is a civilian or a combatant. Special attention is also given to children and women. However, there are times when a combatant drops arms and other times when a civilian picks up arms. Question remains, “What happens when a civilian picks up arms?”. In this paper, the author has used the principle of distinction and Hohfeldian theory in order to answer the question. Lastly, the paper discusses about the two school of thoughts emanating from the Hohfeldian theory and criticisms to it.
While we study International Humanitarian Law, there are two very important subjects to deal with: The Status of Combatants and The Status of Civilians during armed conflict.
Definition of the term “Combatant” is given under Chapter III, Article 43(2) of Additional Protocol 1 (hereinafter referred to as AP 1) to Geneva Conventions.
Combatants are members of the armed forces and
Combatants have the right to participate directly in hostilities.
Combatants have been given the power of prisoner of war under Article 44(1) of AP 1.
Definition of Civilian is provided under Article 50 of AP 1.
As understood by the definition, a civilian is any person who is not or no longer a member of armed forces.
Civilians are one group that becomes a notable victim of war and hence one of the cardinal objectives of International Humanitarian Law is to protect the life and property of civilians. Steps were taken to protect the civilians after serious crimes and atrocities were witnessed against them in the World War II. Later, Additional Protocols to Geneva Convention were adopted in order to reinforce the protection of civilians during armed conflict. However, they are protected as civilians only as long as they are not participating in direct hostilities as clearly mentioned under Article 51(3) of AP 1.
According to the principle of distinction, a military commander is required to distinguish between a civilian and military targets at all times. This principle is advocated for under Article 48 of AP1.
The language used in the abovementioned article is very strong yet simple. It clearly stipulates that in any case, a civilian shall not be attacked and the attacks shall only be directed towards the combatants.
A deeper analysis of principle of distinction may lead us to the assumption that only military personnel are to be attacked because they have consented to it by taking active role in the armed conflict whereas civilians are never to be attacked because they are mere innocent bystanders to the conflict. However, this is not always the case. Sometimes the combatants are not well aware of the real picture of an armed conflict or are forcefully pushed into it and sometimes, civilians aid the commencement of the conflict or rather play a crucial role in it.
However, keeping aside the criticism of principle of distinction, what’s important is that we focus on what happens and not what ought to happen because interpreting this principle in a more relaxed way would only lead to serious risks to the life of civilians.
Being well aware of the stark differences between a civilian and a combatant in an armed conflict now brings us to the question as to what happens when a civilian picks up arms.
Article 50 of AP 1 which defines ‘civilians’ also leads us to the answer of this question. This Article reinforces that a civilian who picks up arms loses his protection against attacks. However, such civilian also does not attain the status of combatant in order to avail prisoner of war.
Hohfeldian has analysed the rights into 7 categories. However, for the sake of this paper, we will only be dealing with his analysis of rights as a privilege and as immunity.
Right as a privilege– Hohfeldian says that “A has a privilege to φ if and only if A has no duty not to φ.” It means that these rights mark out what their bearer has no duty not to do. For example, Advocate’s license gives him/her a privilege to practice law.
Right as an immunity– According to Hohfeld, “B has an immunity if and only if A lacks the ability to alter B‘s Hohfeldian incidents.” In simpler terms, a right is immunity when the other party does not have the power to change the right holder’s situation in some way.
Two schools of thought emanates from this analysis made by Hohfeld on rights.
First School of thought advocates that civilians picking up arms during an armed conflict are unlawful and they have tried to prove their point through Hohfeld’s analysis of right as a privilege. They say that Article 43 of AP I has given the privilege of participating directly in hostilities only to the combatant since they are trained and are well versed with the rules of IHL.
There is a certain criterion that a combatant has to mandatorily follow during armed conflict which is provided under Article 4(2) of Geneva Convention III–
Carry arms openly
Commanded by a superior
Having fixed, distinctive sign and
Conduct operations in accordance with the laws of war.
According to this school, a civilian does not fulfil any of these criterions and therefore cannot be given the status of combatant. Moreover, a civilian might not carry arms openly or wear a distinctive sign which could be fatal and unfair to the combatant who is bound by the law to protect the civilians at all times.
The second school of thought favours the idea of a non-combatant picking up arms and participating in direct hostilities since Article 43 of AP I only defines the status of a combatant and does not expressly prohibits non combatant into taking part in direct hostilities. This school of thought interprets right as an immunity as analysed by Hohfeld and says that non-combatant’s right to participate in direct hostilities and pick up arms is their immunity since the other party i.e., combatants does not have any power to alter their normative situation. They say that combatants enjoy immunity against punishment for taking part in direct hostilities and a civilian cannot have it. However, if a civilian decides to pick up arms, he will be bound to follow similar legal rules and thus will be entitled to similar immunities.
This interpretation faces a lot of criticism because it gives unlimited rights to the civilians which is unfair to the combatants and could prove to be fatal for their life. A civilian is not supposed to be compared to a combatant who has been trained to use arms and to follow the rules of war. It is also in violation of Article 50 of AP I.
There are set rules to regulate everyone’s conduct in a specific way. May that be a combatant or a non-combatant, each one of them is supposed to follow these set rules and any deviation from it could lead to serious risks. A combatant is supposed to protect the civilians in every situation according to IHL and a civilian is not supposed to participate in direct hostilities and pick up arms. Both of them have their own repercussions if not followed. It is provided under the IHL that a combatant who drops his arm and is not to be attacked anymore and he loses his status of combatant. Civilian does not get the privileges as a combatant when he/she decides to pick up arms. This is to say that sometimes a civilian might have to face a situation where he/she will have to pick up arms such as in the case of self-defence from the combatants that are not abiding by the laws of war. In such cases the civilians do not have any protection.
ABOUT THE AUTHOR
Anshita Agrawal is a final year law student at SVKM’s NMIMS Kirit P. Mehta School of Law, Mumbai.
In Content Picture: Wikimedia Commons
Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.