Session 7

Question 1

Question: Is the concept of “unlawful enemy combatants” a U.S. invention?

Answer 1

• No, the distinction between lawful and unlawful combatants predates the Geneva Conventions and can be traced back to the Hague Regulations of 1899 and 1907.
• Historical examples include pirates, spies, and saboteurs.

Question 2

Question: What determines whether a captured combatant receives POW status?

Answer 2

Answer: Under Article 4 of the Third Geneva Convention, POW status is granted to lawful combatants—such as members of a recognized armed force—who follow the laws of war. Those who fail to meet these criteria do not qualify.

Question 3

Question: Why are al Qaeda and Taliban detainees not considered POWs?

Answer 3

• Not a party to the Geneva Conventions.
• does not meet the requirements for lawful combatants.
• Taliban also fail to distinguish themselves from civilians
• do not consistently follow the laws of war.

Question 4

Question: How does the principle of distinction justify denying POW status to unlawful combatants?

Answer 4

• The laws of war require combatants to distinguish themselves from civilians.
• if no = risk to non-combatants and lose protections under the Geneva Conventions.

Question 5

Question: How does the U.S. justify its treatment of detainees in the war on terror?

Answer 5

• extending POW protections to unlawful combatants would weaken the incentive to follow the laws of war.
• detainees must still be treated in accordance with Common Article 3 of the Geneva Conventions, which prohibits torture and inhumane treatment.

Question 6

Question: Is there consensus on how to classify unlawful enemy combatants?

Answer 6

• No, legal scholars and international bodies recognize ambiguity in detainee status.
• The OSCE Rapporteur on Guantanamo, notes that further legal work is needed to clarify how these combatants should be treated under international law.

Question 7

Question: Under what legal framework did the Israeli Supreme Court analyze the policy of targeted killings?

Answer 7

• The Court considered targeted killings within the framework of international armed conflict,
• applying the Geneva Conventions and customary international humanitarian law (IHL).

Question 8

Question: How did the Israeli Court classify individuals targeted in these strikes?

Answer 8

• The Court rejected the category of “unlawful combatants”,
• instead distinguishing between combatants (lawful targets) and civilians (protected unless taking direct part in hostilities).

Question 9

Question: When can civilians be legally targeted under IHL?

Answer 9

• Direct Participation in Hostilities (DPH)
• Once they cease participating, they regain civilian protection.

Question 10

Question: What principle did the Court apply to determine if a targeted killing was lawful?

Answer 10

Answer: The principle of proportionality, meaning an attack is illegal if civilian harm is disproportionate to the military advantage gained.

Question 11

Question: What did the Court say about the necessity of using lethal force?

Answer 11

• Arrest must be attempted before killing,
• unless it is infeasible or poses extreme risk to soldiers.
• Lethal force should be a last resort.

Question 12

Question: What legal safeguards did the Court establish for targeted killings?

Answer 12

• Every targeted killing must undergo an independent investigation.
• If civilians were wrongly targeted, compensation must be provided.

Question 13

Question: When do civilians lose their protection under international humanitarian law (IHL)?

Answer 13

Answer: Civilians lose their protection when they directly participate in hostilities (DPH) but regain it once they stop. They do not become combatants but can be lawfully targeted during their participation.

Question 14

Question: What is a levée en masse under the Third Geneva Convention?

Answer 14

Answer: A spontaneous civilian resistance against an invader, where participants:

• Take up arms without time to organize into formal units.
• Carry weapons openly.
• Operate in non-occupied territory before enemy control is established.
  If these conditions are met, participants gain lawful combatant status.

Question 15

Question: How do organized resistance movements differ from a levée en masse?

Answer 15

Answer: Unlike a levée en masse, organized resistance movements:

Are structured and follow military command.
Use recognizable insignia (e.g., Ukrainian Territorial Defense Forces’ yellow armbands).
Can qualify as combatants under Article 4A(2) of the Third Geneva Convention.

Question 16

Question: How does international law classify members of Ukraine’s Territorial Defense Forces?

Answer 16

Answer: They meet the requirements for combatant status because they:

Wear a fixed distinctive sign.
Carry arms openly.
Follow a command structure.
Comply with the laws of armed conflict (LOAC).
As combatants, they can be lawfully targeted but are entitled to POW protections if captured.

Question 17

Question: Why is the classification of armed civilians in Ukraine legally complex?

Answer 17

Some civilians act spontaneously (levée en masse)
- later receive government support, blurring their legal status.
- Civilians engaged in sporadic resistance (e.g., blocking roads, removing signs) may not qualify as DPH.
- Once an area is occupied, resistance fighters do not qualify as levée en masse.

Question 18

Question: What are the consequences if Russian forces unlawfully target armed Ukrainian civilians?

Answer 18

• If civilians do not take direct part in hostilities, targeting them is a war crime under the Rome Statute of the ICC.
• If they are combatants (e.g., Territorial Defense Forces), they must be treated as POWs if captured.
• Unclear classifications may lead to violations of IHL on both sides.

Question 19

Question: When are civilians protected from attack under international humanitarian law (IHL)?

Answer 19

• Protected unless DPH
• Civilians are protected from attack unless and for such time as they take a direct part in hostilities (DPH) under Article 51(3) of Additional Protocol I and Article 13(3) of Additional Protocol II.

Question 20

Question: Under what conditions do civilians lose their protection from being targeted?

Answer 20

Answer: Civilians lose protection only while they are directly participating in hostilities. Once they stop, they regain their civilian protection and cannot be lawfully attacked.

Question 21

Question: What is the legal definition of “direct participation in hostilities”?

Answer 21

• No universally agreed definition,
• generally includes acts intended to cause actual harm to enemy personnel or matériel, such as:
• Using weapons or engaging in combat.
• Gathering intelligence for military use.
• Sabotage or direct logistical support.

Question 22

Question: What is the difference between direct and indirect participation in hostilities?

Answer 22

• Direct participation (DPH): Civilians engaging in combat, intelligence gathering, or military sabotage lose protection from attack.
• Indirect participation: Activities like producing weapons, political support, or working in military supply chains do not qualify as DPH.

Question 23

Question: What happens if there is uncertainty about whether a person is a civilian or a combatant?

Answer 23

• Article 50(1) of Additional Protocol I states that in case of doubt, the person must be presumed to be a civilian.
• Some states (e.g., France and the UK) argue that military commanders should assess threats based on behavior and intelligence.

Question 24

Question: Why is the concept of direct participation in hostilities legally ambiguous?

Answer 24

• Different state practices lead to inconsistent interpretations (e.g., some military manuals include lookouts or guards as DPH).
• The ICRC has tried to clarify the concept, but new forms of warfare (e.g., cyber operations, human shields) complicate its application.
• The threshold for DPH remains debated, affecting targeting decisions in armed conflicts.

Question 25

Question: What is perfidy, and why is it prohibited under international humanitarian law (IHL)?

Answer 25

Answer: Perfidy is feigning protected status (e.g., disguising as medical personnel or civilians) to deceive an adversary and carry out an attack. - War crime under the Rome Statute of the ICC and customary IHL, as it undermines the trust in protected symbols like the Red Cross.

Question 26

Question: When can a hospital lose its protected status under IHL?

Answer 26

- used for military purposes (e.g., as a base for armed groups). However, before an attack, the attackers must: - Issue a warning. - Allow time for evacuation. - Have clear evidence of military use.

Question 27

Question: What are the two main legal issues with the Israeli Security Forces' hospital raid?

Answer 27

Perfidy – Israeli forces allegedly disguised as doctors and civilians to gain entry and execute an attack, which is prohibited under IHL. Targeting hors de combat – Killing an incapacitated individual (e.g., a paralyzed combatant receiving medical care) is a war crime under IHL.

Question 28

Question: How does Israel justify its attack on the hospital?

Answer 28

Answer: Israel argues that: - Hamas and other militants use hospitals as safe havens for planning attacks. - The raid was a counterterrorism operation targeting active threats, not an indiscriminate attack. - The IDF denies claims that one of the individuals was paralyzed.

Question 29

Question: Can the International Criminal Court (ICC) investigate this case of the hospital?

Answer 29

Answer: Yes, the ICC has jurisdiction over war crimes, crimes against humanity, and genocide. Israel is not a member of the ICC and rejects its jurisdiction. However, the ICC has previously investigated Israeli actions in Palestine and could examine this case if sufficient evidence emerges.

Question 30

Question: What larger legal and ethical debates does this hospital case highlight?

Answer 30

The balance between military necessity and civilian protection in modern warfare. The use of hospitals and civilian sites by armed groups—a key issue in asymmetric conflicts. The challenges in enforcing IHL when states do not recognize ICC jurisdiction.

Question 31

Question: Are foreign fighters in Ukraine’s International Legion considered mercenaries under IHL?

Answer 31

Answer: No, they do not meet the legal definition of mercenaries under Article 47 of Additional Protocol I and are instead combatants entitled to POW status if captured.

Question 32

Question: What conditions must be met for a fighter to qualify as a combatant under IHL?

Answer 32

Must be part of the armed forces of a conflict party. Has the right to directly participate in hostilities. Cannot be prosecuted for mere participation in combat, only for war crimes. ILTG fighters meet these criteria because they are officially part of the Ukrainian Armed Forces.

Question 33

Question: According to Article 47 of Additional Protocol I, what are the key criteria that define a mercenary?

Answer 33

Answer: A mercenary must: Be recruited specifically for combat. Take direct part in hostilities. Be motivated primarily by financial gain. Receive substantially higher pay than regular soldiers. Not be a national or resident of the hiring state. Not be part of the armed forces of the hiring state. ILTG members do not meet these criteria and are not mercenaries.

Question 34

Question: What protections do ILTG members have under the Geneva Conventions if captured by Russia?

Answer 34

They must be treated as POWs under Article 4 of the Third Geneva Convention. They cannot be prosecuted for participation in hostilities unless they commit war crimes. Russia’s claim that they are mercenaries is legally incorrect under IHL.

Question 35

Question: How does Russia justify prosecuting captured ILTG fighters?

Answer 35

Russia incorrectly classifies them as mercenaries to deny them POW status. Russia has a history of prosecuting captured foreign fighters, as seen with Ukrainian pilot Nadiya Savchenko and Ukrainian sailors captured in 2018. Prosecuting ILTG members solely for fighting violates IHL.

Question 36

Question: What are the key challenges in ensuring ILTG members receive proper legal treatment?

Answer 36

IHL in theory grants ILTG members POW status, but Russia may not follow these protections. Some countries (e.g., Belarus) criminalize joining foreign armed forces, making it risky for their citizens to fight in Ukraine. Enforcement of IHL depends on political will and international pressure.

Question 37

Question: What legal challenges exist in verifying the alleged execution video?

Answer 37

Was the video staged, edited, or manipulated? Who filmed it, and when was it recorded? Without independent verification, the video alone may not be legally sufficient evidence for prosecution.

Question 38

Question: What legal protections do prisoners of war (POWs) have under international humanitarian law (IHL)?

Answer 38

POWs cannot be executed under Article 3 common to the Geneva Conventions. Hors de combat (out of combat) soldiers must be treated humanely. Executing surrendered soldiers is considered a war crime under the Rome Statute of the ICC.

Question 39

Question: What is Ukraine legally required to do if the allegations are credible?

Answer 39

Investigate allegations of war crimes by its armed forces. Ensure all captured POWs receive humane treatment. Cooperate with international investigations into war crimes.

Question 40

Question: Does Russia have the legal authority to prosecute Ukrainian soldiers for war crimes?

Answer 40

Russia’s domestic trials lack international legitimacy. The International Criminal Court (ICC) could investigate, but Russia does not recognize ICC jurisdiction. Universal jurisdiction allows other countries to prosecute if strong evidence exists.

Question 41

Question: How does this allegation compare to accusations against Russia?

Answer 41

The UN has documented systematic torture of Ukrainian POWs by Russian forces. If Ukraine is investigated, Russia should also face scrutiny for its war crimes. Selective legal enforcement could undermine international credibility.

Question 42

Question: Who can conduct an independent investigation into the alleged executions?

Answer 42

The UN Human Rights Office is reviewing the case. The ICC, UN commissions, or independent NGOs may investigate. If proven, will international courts be able to hold individuals accountable?

Question 43

Question: How does the U.S. classify the War on Terror, and why is this controversial?

Answer 43

The U.S. claims it is a single global international armed conflict, allowing it to use wartime powers. However, under International Humanitarian Law (IHL), conflicts must be classified individually, not as part of a broad, undefined war.

Question 44

Question: According to IHL, how must detainees be classified in an international armed conflict?

Answer 44

Prisoners of War (POWs) – Protected by the Third Geneva Convention. Civilians – Protected by the Fourth Geneva Convention, with restrictions on detention. The U.S. denies detainees both statuses, classifying them as "unlawful combatants", which has no legal basis under IHL.

Question 45

Question: What is the legal distinction between Taliban and al Qaeda fighters?

Answer 45

Taliban fighters were the de facto armed forces of Afghanistan, so they should be POWs under the Third Geneva Convention. al Qaeda members do not qualify for POW status, but as protected civilians, they should not be deported to Guantánamo—only detained in Afghanistan under proper legal procedures.

Question 46

Question: Why does the U.S. argue that Taliban and al Qaeda fighters do not deserve POW status?

Answer 46

The U.S. claims that they do not follow the laws of war, so they lose their POW protections. Counterargument: IHL is meant to protect all individuals in conflict, even those accused of war crimes. The U.S. approach places detainees outside any legal framework, violating the Geneva Conventions.

Question 47

Question: How does the U.S. detention policy at Guantánamo undermine international law?

Answer 47

By denying both POW and civilian protections, detainees fall into a legal black hole. This weakens the Geneva Conventions and sets a dangerous precedent where states can strip prisoners of all legal rights.

Question 48

Question: What is the best legal approach to handling Guantánamo detainees under IHL?

Answer 48

Follow existing IHL rules: Taliban fighters should be treated as POWs. al Qaeda members should be treated as protected civilians and detained with legal safeguards. Respecting IHL strengthens legitimacy and international support, without weakening counterterrorism efforts.

Question 49

Question: Are Wagner Group members considered combatants under international law?

Answer 49

Wagner fighters do not qualify as lawful combatants under Article 47 of Additional Protocol I (AP I) if they are classified as mercenaries. However, if they operate under Russian command, they could be considered members of a militia belonging to a Party to the conflict, which could entitle them to POW protections.

Question 50

Question: Can Andrej Medvedev be prosecuted for war crimes?

Answer 50

Medvedev claims to have witnessed atrocities but denies direct involvement. Norway must determine if he is culpable for war crimes based on principles like aiding and abetting, complicity, or joint criminal enterprise (JCE). If found responsible, he could face prosecution in Norway or extradition to Ukraine.

Question 51

Question: Why might Norway be legally prohibited from deporting Medvedev to Russia?

Answer 51

Under the Refugee Convention and the Convention Against Torture, non-refoulement prohibits deporting individuals to countries where they face torture, persecution, or extrajudicial execution. Medvedev risks severe harm if returned to Russia, making his deportation legally questionable.

Question 52

Question: What factors will Norway consider when deciding Medvedev’s asylum request?

Answer 52

If he is classified as a war criminal, he could be denied asylum and prosecuted. If seen as a whistleblower, he may be granted protection in exchange for testimony against Wagner and Russian military leadership. The case balances security concerns, human rights law, and international justice.

Question 53

Question: How does Wagner’s connection to Russia complicate its legal classification?

Answer 53

Russia denies formal control over Wagner, which allows it to avoid direct legal responsibility. However, Wagner’s military operations align with Russian state interests, making Russia potentially liable for its actions under customary IHL. Medvedev’s testimony could help establish Wagner’s link to the Russian government, influencing future accountability cases.

Question 54

Question: Why is Medvedev’s case significant for international law?

Answer 54

It tests how international law applies to private military contractors (PMCs) in modern conflicts. It could set a precedent for future defectors from Wagner or similar groups. The case highlights the challenges of prosecuting PMCs that operate with state backing but without formal recognition.

Question 55

Question: What is the principle of distinction in international humanitarian law (IHL)?

Answer 55

The principle of distinction requires separating combatants from civilians and military targets from civilian objects. Combatants are lawful targets, while civilians are protected unless they directly participate in hostilities.

Question 56

Question: What are the legal benefits of combatant status under IHL?

Answer 56

Combatants are allowed to legally engage in hostilities. They enjoy combatant immunity, meaning they cannot be prosecuted for lawful war actions. If captured, they receive POW status, granting them specific rights and protections under the Third Geneva Convention.

Question 57

Question: When do civilians lose their protection from attack under IHL?

Answer 57

Answer: Civilians may not be targeted unless they directly participate in hostilities (DPH). If they take direct part in combat, they lose their immunity for the duration of their participation.

Question 58

Question: What are the four requirements for combatant status under the 1907 Hague Convention?

Answer 58

Commanded by a responsible leader. Wear a fixed, visible insignia. Openly carry weapons. Follow the laws of war.

Question 59

Question: What rights do POWs have under the Third Geneva Convention?

Answer 59

Cannot be prosecuted for lawful acts of war. Must be treated humanely and given proper living conditions. If status is uncertain, a tribunal must decide their POW eligibility.

Question 60

Question: How does Additional Protocol I affect guerrilla fighters and liberation movements?

Answer 60

Grants combatant status to organized resistance groups under responsible command. Allows for exceptions to the requirement for distinctive insignia, recognizing the realities of guerrilla warfare.

Question 61

Question: What is levée en masse, and when do civilians qualify for combatant status under it?

Answer 61

Civilians who spontaneously take up arms against an invader before enemy occupation can qualify as combatants. To gain combatant and POW status, they must: Openly bear weapons. Comply with the laws of war.

Question 62

Question: Why do mercenaries not receive combatant or POW status?

Answer 62

Under Article 47 of Additional Protocol I, mercenaries: Are recruited specifically for combat. Are motivated by financial gain. Are not part of the armed forces of a party to the conflict. Mercenaries can be prosecuted for participating in hostilities.

Question 63

Question: What legal challenges do unlawful combatants and PMCs face under IHL?

Answer 63

"Unlawful combatant" is a controversial term with no clear international definition. Private Military and Security Companies (PMSCs) personnel are considered civilians unless they directly participate in hostilities. The Montreux Document attempts to set legal guidelines for PMSC operations in armed conflict.

Question 64

Question: Why is determining who qualifies as a combatant one of the most complex areas of IHL?

Answer 64

The changing nature of warfare (e.g., guerrilla tactics, non-state actors) complicates traditional definitions. Some fighters, like insurgents in non-international armed conflicts, do not receive full combatant protections. Proper classification is critical for applying the laws of war fairly and preventing abuses.