The Hague Regulations The earliest developments in

The Hague Regulations

The earliest developments in
the law of armed conflict were based on the assumption that in a war between
two or more states, those who were legitimately entitled to take up arms were the
armed forces of those states. Thus “armed forces” was not a term which required
definition. Individual members of the armed forces were combatants, another
term which was treated as self-evident. The rules of armed conflict therefore
were to be applied to armies.

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It is generally accepted by
IHL experts that the first international attempt at defining combatants was
included in the International Declaration concerning the laws and Customs of
War adopted in Brussels in 1874.i Even more recent studies assert
without question that the process of definition began with that international
document.ii Despite this consensus, the
Brussels Declaration did not in fact define “combatants,” other than to say
that they are members of the armed forces.

Under the heading “Who
should be recognized as belligerent combatants and noncombatants,” the
Declaration simply states in Article 9 that:

 

the laws,
rights, and duties of war apply not only to armies, but also to militia and volunteer
corps fulfilling the following conditions: 1. That they be commanded by a
person responsible for his subordinates; 2. That they have a fixed distinctive emblem
recognizable at a distance; 3. That they carry arms openly; and 4. That they
conduct their operations in accordance with the laws and customs of war. In
countries where militia constitute the army, or form part of it, they are
included under the denomination army.iii

 

Art.11 then adds, somewhat
ambiguously, that “The armed forces of the belligerent parties may consist of
combatants and non-combatants. In case of capture by the enemy, both shall enjoy
the rights of prisoners of war.”iv Thus it can be easily seen
that the so-called definition is, in fact, just a statement with conditions
added to qualify fighting groups that do not constitute regular armies. The
four conditions referred to, with some modifications, became enshrined in the
law of armed conflict and are as close to a definition of combatant as the law
ever came. In terms of application, however, these conditions are provisions of
the law which are fairly marginal.

The Brussels Declaration
formed the basis of the definition of combatant which was incorporated into
Articles 1 and 3 of the Regulations annexed to the Hague Convention (II) with
Respect to the Laws and Customs of War on Land of 1899 and 1907.v In a later development,
the Brussels/Hague provisions were incorporated into the 1949 Third Geneva Convention
on Prisoners of War, in order to establish the qualifications required to receive
prisoner of war treatment.

Because there is no
definition of combatant as such, it has always been difficult to say whether
only members of the armed forces are to be considered combatants. This problem
is compounded by the fact that the Hague definition provides that the
armed forces can include “non-combatants,” with both categories being entitled
to prisoner of war status. In other words, in the Hague formulation, the
term “armed forces” is not limited to those officially engaged in combat.
This provision of the Regulations implies that militias are part of the “armed
forces” even though they are not to be considered part of the army, unless the
two terms are interchangeable.

To sum up, the Hague
Regulations did not define the concept of combatant and left it up to each
state to decide which members of its armed forces were combatants and which
were not. As Detter suggests, “the criteria for establishing combatant status
are still vague and difficult to apply in practice. There is no doubt that
there is still confusion as to who is a combatant and who is a civilian as a
result of the lack of stringent criteria for qualification as a combatant.”vi Moreover, there seems to
be no disagreement among experts that the law did not stipulate how combatant
status was to be specifically linked it to any particular privileged treatment.

The fact that other types of
‘fighter’ (or ‘combatant,’ in the non-technical sense of the word) would be
involved in armed conflict led inevitably to the elaboration of qualifications like
‘unlawful,’ ‘unqualified’ or ‘unprivileged.’ This has opened up a controversial
field of debate, most recently in connection with the wars in Afghanistan and
Iraq, as will be discussed below. How such ‘unqualified’ fighters should be treated
has been a contentious question from the earliest stages of the law of armed
conflict and, over time, has explained the inclusion of additional groups into
the combatant category. To illustrate that this is a controversy of long-standing,
Green quotes Wheaton’s comment that non-combatants are “all those not in
military service…but if they make forcible resistance, or violate the mild rules
of modern warfare, give military information to their friends or obstruct the
forces in possession, they are liable to be treated as combatants.”vii

 

The Geneva Conventions

The word ‘combatant’ does
not appear in the Geneva Conventions. However those provisions from the Hague
Regulations generally assumed to have constituted the ‘definition’ of combatants
are incorporated in Article 4 of the Third Convention to specifically
identify actors who qualify as prisoners of war. The Third Convention
relative to the treatment of prisoners of war did not however affect the Hague
provisions on combatant status.viii The most that can be
said for the convention is that it clarified the law, which previously, under
the Hague Regulations, had stated simply that members of the “armed forces”
were entitled to prisoner of war status. Under the Third Convention this was broadened
to include not only militias and volunteer corps who met the traditional
conditions (a logical extension), but also the levee en masse; persons
“accompanying” the armed forces (presumably the “non-combatant” members of the Hague
rules); technical crews and persons “belonging to the armed forces of an
occupied country”.ix

The provisions on prisoner
of war status are generally held to constitute the definition of combatant. The
ICRC Commentary on the Conventions provides a useful overview on how this happened.
The ICRC Commentary on the Third Geneva Conventionx asserts that the “key”xi provisions on the
definition of combatants are to be found in Article 4 whose history is traced back
to the Hague Convention (IV) respecting the Laws and Customs of War on Land
and its annex. The understanding of the meaning (if not definition) of
“combatants” is therefore established partly by reference to the provisions on
the entitlement to prisoner of war status (Art. 4A of Convention III)
and partly through the provisions distinguishing combatants from civilians in
the Fourth Convention. Interestingly enough, the Convention most closely
linked to situations of actual combat (Convention I on the Treatment of the Wounded
and Sick in the Field) does not make any contribution to our understanding of
the definition of combatants. As Pictet points out,xii those to whom the First
Convention was to apply (in its Article 13) were precisely those entitled
to be treated as prisoners of war. So we are back to Article 4A of the Third
Convention which is not incorporated by reference, but simply repeated
verbatim in Article 13 of the First Convention. Therefore, as Pictet
notes, it “adds nothing substantial” to the First Convention and its value is
“purely theoretical.”xiii

i Dieter
Fleck, The Handbook of Humanitarian law
in Armed Conflicts (Oxford: Oxford University Press, 1995) at 67

ii
Emily Crawford, The Treatment of Combatants and
Insurgents under the Law of Armed Conflict (Oxford:

Oxford University Press, 2010) at 15.

iii On
ICRC Website: http://www.icrc.org/ihl.nsf/FULL/135?OpenDocument

iv Ibid.

v Ibid.

vi Ingrid
Detter, The Law of War, 2d. (Cambridge University Press, 2000) at 135.

vii Wheaton,
Elements of International Law”
(1986).

viii
Elizabeth Wilmshurst & Susan Breau,
eds., Perspectives on the ICRC Study
on Customary International Humanitarian Law, (Cambridge,
New York: Cambridge University Press, 2007) at 101.

ix Article
4, Third
Geneva Convention.

x
Pictet, Jean ed. Commentary on III Geneva
Convention relative to the treatment of prisoners of war, Pictet,

Jean
ed., (Geneva: ICRC, 1958) and Commentary
on IV Geneva Convention relative to the Protection of

Civilian Persons in Time of War (ICRC
Geneva: ICRC, 1958).

xi Commentary on Third Convention.

xii Ibid. at 144.

xiii
Ibid.

x

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