Public International Law was developed when bodies of representing the international communities were constituted.

e.g.
League of Nations
U.N.
Within the PIL a separate branch was developed to address the concerns for the welfare of humanity as a whole, thus IHL (International Humanitarian Law)
was developed as a branch.
IHL could be viewed from 2 layers
Traditional Layer
IHL was born to regulate relations between warring states.
Traditional layer governs the relations of different states even when they are at war; even if the very existence of the state is at stake; even when force is being
used or even when the government does not have a monopoly of violence with in the territory of the state.
New Layer
Developed when the organs of international society relates to the states
IHL governs human behavior even when violence is used, when the structures of the international and national community have fallen apart.
Is International Law law?
In the classical sense or traditional sense of the law No because traditional law is realistic, it reflects the theoretical source of power
In a broader sense Yes. Since it promotes a set of rules that reflect the need to transform relations as they now stand and proclaim the duty to change things as
they are. So it relies more on persuasive power of public opinion.

Limitations of international Law IL is voluntary and hortatory.
It depends on the nation whether to submit or not. But inspite of this limitation, Nations have observe these norms and undertakings of IL that the result is
substantial order in the International Relations
Is it Law or Politics Many reasons are put forward questioning the reality of the influence of International Law to policies of different nations. The decisions
of the nations to obey laws or agreements is based on cost and advantage to the national interest and also because they fear unpleasant consequences if they do
not observe it. Law or no law nations will probably behave in the same way. Furthermore it is pointed out that in domestic law within the nation is binding
and society compels compliance whether it is to ones interest or not.
Where as in International society the nations decide to abide or not to abide and violations are not punished in the same way as in the society and violators
remain a full member of the international society not an outlaw hence punishment of violations are political not legal.
Yet on the other hand it can be argued that no nation considers IL as voluntary. Also physical coercion is not the sole or principal force ensuring compliance.
Law is observed by the most powerful nation even though there is no one to compel them.
Laws Supporters and its Critics International law is a framework of all relations between nations that provides institutions, machinery and procedures
maintaining relations.

It depends on particular on a legal instrument which is the international agreement and on the legal principle that agreements must be carried out.

Although there is no guarantee of performance it adds an important increase of interest in the nations to perform their obligations somehow forcing nations to
modify their conduct.
Fundamental Distinction between Ius Ad Bellum and Ius In Bello
a. The Prohibition of the use of force and its exceptions

Draft Articles on State Responsibility (International Law Commission):
Art. 21: Article 21. Self-defence.
The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the
Charter of the United Nations.
Art. 25: Necessity.
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international
obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and
imminent peril; and
(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the
international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(a) the international obligation in question excludes the possibility of invoking necessity; or
(b) the State has contributed to the situation of necessity.

b. The inevitable tension between the prohibition of the use of force and IHL

c. The complete separation between Ius (Jus) Ad Bellum and Ius (Jus) In Bello

The application of humanitarian law does not involve the denunciation of guilty parties as that would be bound to arouse controversy
and paralyse implementation of the law, since each adversary would claim to be a victim of aggression. Moreover, IHL is intended to
protect war victims and their fundamental rights, no matter to which party they belong.

Ius Ad Bellum right to make war
Ius In Bello law in war
Ius Contra Bellum law on the use of force or prevention of war

Preamble of Protocol I: Expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as
legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations,
Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all
circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the
armed conflict or on the causes espoused by or attributed to the Parties to the conflict,
i. Reasons
1. Logical reasons: once the primary rules prohibiting the use of force (i.e. use of ius ad bellum) have been violated,
the subsidiary rules of ius in bello must apply, as they are foreseen precisely for such situations where the primary
rules have violated
2. Humanitarian reasons: the war victims are not responsible that their State has violated International Law (i.e. ius
ad bellum) and need the same protection, whether they are on the right or on the wrong side
3. Practical reasons: during a conflict, belligerents never agree on which among them has violated ius ad bellum (i.e.,
which side is the aggressor), IHL has to apply during such a conflict. It therefore only has a chance to be respected
if both sides have to apply the same rules
ii. Consequences of the distinction
1. The equality of belligerents before IHL

Art. 96 (3) (c) of Protocol I: Treaty relations upon entry into force or this Protocol
3. The authority representing a people engaged against a High Contracting Party in an armed conflict of the type
referred to in Article 1, paragraph 4, may undertake to apply the Conventions and this Protocol in relation to that
conflict by means of a unilateral declaration addressed to the depositary. Such declaration shall, upon its receipt by
the depositary, have in relation to that conflict the following effects:[] and (c) the Conventions and this
Protocol are equally binding upon all Parties to the conflict.

2. IHL applies independently of the qualification of the conflict under ius ad bellum

3. Arguments under ius ad bellum may not be used to interpret IHL

Draft Articles on State Responsibility (International Law Commission):
Art. 25: Necessity.

The International Criminal Court:
Art. 31: Grounds for excluding criminal responsibility
1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall
not be criminally responsible if, at the time of that person's conduct:
[...] (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes,
property which is essential for the survival of the person or another person or property which is essential for
accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the
degree of danger to the person or the other person or property protected. The fact that the person was involved in a
defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility
under this subparagraph;

4. Ius ad bellum may not render application of the IHL impossible
5. IHL may not render the application of ius ad bellum, impossible

iii. Contemporary threats of the distinction
1. New concepts of just (or even humanitarian) war
2. International police action: International armed conflict turn into law enforcement actions directed by the international
community, those who represent it or claim at least to represent it, against outlaw States

d. Distinction in non-international armed conflicts
1. IHL does not prohibit non-international armed conflict; domestic law does
2. IHL treats parties to an non-international armed conflict equally; it, however, cannot request domestic laws to do so

II. IHL: A Branch of International Law Governing the Conduct of states and Individuals

a. Situations of application
International Humanitarian Law (IHL) applies in two very different types of situations: international armed conflicts and non-
international armed conflicts.

i. International armed conflict
IHL relating to international armed conflict applies to all cases of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties

ii. Non-international armed conflict
The view that non-international armed conflicts traditionally considered as purely internal matters for States, in which no
international law provisions applied, was modified with the adoption of Article 3 common to the four Geneva Conventions of
1949.

iii. Other situations
IHL is NOT applicable in situations of internal violence and tensions. Article 1 (2) Additional Protocol II states that: This
Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence
and other acts of a similar nature, as not being armed conflicts []
However, in Article 8 qualifying conduct directed or controlled by a State found ILCs Draft Articles on State Responsibility
states: The conduct of a person or group of persons shall be considered an act of a State under international law if the person
or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the
conduct.

1. Qualification not left to the parties of the conflict
The ascertainment of the intensity of a non-international conflict does not depend on the subjective judgment of the
parties to the conflict. The adoption of the four Geneva Conventions, as well as the additional Protocols, provide for
the protection of victims, as well as potential victims, of armed conflicts. Hence, when it has been objectively
established that there are violations of Common Articles (i.e., murder and cruel treatment) and Additional Protocols
(i.e., outrages upon personal dignity, in particular rape...), International Humanitarian Law will apply.

2. International armed conflict

Common Article 2 relating to International Armed Conflict:
This article states that the Geneva Conventions apply to all cases of international conflict, where at least oneof the
warring nations has ratified the Conventions. Primarily:
The Conventions apply to all cases of declared war between signatory nations. This is the original sense of
applicability, which predates the 1949 version.
The Conventions apply to all cases of armed conflict between two or more signatory nations, even in the
absence of a declaration of war. This language was added in 1949 to accommodate situations that have all the
characteristics of war without the existence of a formal declaration of war, such as a police action.
The Conventions apply to a signatory nation even if the opposing nation is not a signatory, but only if the
opposing nation "accepts and applies the provisions" of the Conventions.
Article 1 of Protocol I further clarifies that armed conflict against colonial domination and foreign occupation also
qualifies as an international conflict.
When the criteria of international conflict have been met, the full protections of the Conventions are considered to
apply.
Inter-state conflicts
o Old concept of war abandoned
o Belligerent occupation (even in the absence of armed resistance)
National liberation wars

3. Non-international armed conflict

4. Acts of terrorism?
Acts of terrorism are prohibited whether they are committed during armed conflicts, situations of internal violence
or in time of peace. Acts of terrorism are prohibited by internal and international criminal law, although such
acts of terrorism CAN start an international or non-international armed conflict. If acts of terrorism are
committed during a pre-existing armed conflict, IHL provisions apply.

5. Other situations
Art. 1 (2) Protocol II states: This Protocol shall not apply to situations of internal disturbances and tensions, such
as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

b. Personal scope of application
IHL specifically provides protection for victims of armed conflicts. This does not mean however that those who are not considered
protected persons completely lack protection. Persons not considered to belong in the protected persons category can benefit under
the influence of International Human Rights Law.

i. Passive personal scope of application: who is protected?
1. The concept of protected persons

Art. 13 of Convention I: The present Convention shall apply to the wounded and sick
Art. 13 of Convention II: The present Convention shall apply to the wounded, sick and shipwrecked at sea
Art. 4 of Convention III: Prisoners of war
Art. 4 of Convention IV: Art. 4. Persons protected by the Convention are those who, at a given moment and in any
manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or
Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral
State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be
regarded as protected persons while the State of which they are nationals has normal diplomatic representation in
the State in whose hands they are.

2. The growing importance of rules deviating from the concept persons protected by IHL not having protected
person status

ii. Active personal scope of application: who is bound?
Everyone in situations of armed conflict: states, organized armed groups, multinational forces, civilians and the staff of
private military/security companies. (http://www.icrc.org/eng/resources/documents/faq/pmsc-faq-150908.htm)

Only States may become party to international treaties, and thus to the Geneva Conventions and their Additional Protocols.
However, all parties to an armed conflict whether States or non-State actors are bound by international humanitarian
law. At the end of 2003, almost all the world's States - 191, to be precise - were party to the Geneva Conventions. The fact that
the treaties are among those accepted by the greatest number of countries testifies to their universality. In the case of the
Additional Protocols, 161 States were party to Protocol I and 156 to Protocol II by the same date.
(http://www.icrc.org/eng/resources/documents/misc/5kzjav.htm)

c. Temporal scope of application
i. Beginning of application declaration of war
ii. End of application general close of military operations, cessation of active hostilities or formal reestablishment of peace (i.e.,
signing of peace treaty)

d. Geographical scope of application
[] Conventions are to be applied by States parties to persons within their jurisdiction. This has been interpreted by their treaty bodies
as meaning effective control. A State party is bound to respect the Convention when, as a consequence of military action, it exercises
effective control over an area outside its national territory. In the case of Bankovi against seventeen NATO States, the European Court
confirmed that it applied the European Convention extra-territorially when a State, through the effective control of the relevant territory
and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government
of that territory, exercises all or some of the public powers normally to be exercised by that Government.
(http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_intofugu)

e. Relations governed by IHL
i. Individual State
IHL protects individuals against the State (traditional enemy) or other belligerent authorities.

ii. State State
IHL corresponds to the traditional structure of international law in that it governs relations between States. Its treaty rules are
therefore regulated by the ordinary ruls of laws of treaties
- Applicability of treaties based on reciprocity; but not reciprocity in the respect of treaties
- Ways to be bound
i. Signature
ii. Ratification
iii. Accession

- Declaration of intention
- Reservations
- Denunciation

Article 25 of Protocol II.-Denunciation
1. In case a High Contracting Party should denounce this Protocol, the denunciation shall only take effect
six months after receipt of the instrument of denunciation. If, however, on the expiry of six months, the
denouncing Party is engaged in the situation referred to in Article l, the denunciation shall not take effect
before the end of the armed conflict. Persons who have been deprived of liberty, or whose liberty has
been restricted, for reasons related to the conflict shall nevertheless continue to benefit from the
provisions of this Protocol until their final release.
2. The denunciation shall be notified in writing to the depositary, which shall transmit it to all the High
Contracting Parties.

- Amendment and revision process

Article 24 of Protocol II.-Amendment
1. Any High Contracting Party may propose amendments to this Protocol. The text of any proposed
amendment shall be communicated to the depositary which shall decide, after consultation with all the
High Contracting Parties and the International Committee of the Red Cross, whether a conference should
be convened to consider the proposed amendment. []

- Role of the depositary
Article 26 of Protocol II.-Notifications
Article 27 of Protocol II.-Registration
Article 28 of Protocol II.-Authentic texts

iii. Individual Individual
IHL prescribes rules of behavior for individuals (who must be punished if they violate them) for the benefit of other
individuals
SOURCES OF CONTEMPORARY IHL
I. Introduction
1. The 3 Sources of Contemporary IHL
i. Treaties
ii. Customs
iii. General Principles of Law Recognized by Civilized Nations
2. The Interrelationship of the 3 Sources
i. Pre-existing customary laws might be codified into a treaty
ii. Multilateral treaties might provide the inspiration or model for the adoption of new customs through State practice
iii. A principle might be introduced which would later become part of customs (such as the Martens Clause)
iv. A common principle found in several treaties or customs might give rise to the recognition of a new fundamental
principle of law
II. Treaties
1. Definition
i. An international agreement concluded between states in written form and governed by international law (1969 Vienna
Convention on the Law of Treaties)
Trivia Only: The 1969 Vienna convention is an example of interrelationship between the three sources since
although there are only 111 signatories, the law is still considered binding upon all countries because it is a
codified customary law on the formation and effect of treaties
ii. In IHL, There are two (2) categories
Treaties which restrict the methods and means of warfare such as the Hague Conventions
Treaties which protect individuals human rights during armed conflicts such as the Geneva Conventions
iii. Treaties are considered the best evidence of the rules of international law
2. Advantages
i. Certainty
All States party to the treaty undertake to be part and be bound by the provisions of the treaty
ii. Clarity
Negotiations provide ample opportunities for States to come to an agreement on what the rules mean and any
divergences can be easily resolved
iii. Ready Applicability
Since the rules are both certain and clear, States can easily disseminate and apply them
3. Disadvantages
i. They dont automatically become binding to all states
ii. Process of acceptance sometimes takes decades
iii. No matter how important the treaty is, it is binding only to the signatories
4. Drafting Treaties
i. Traditional Procedure
All States are involved in the negotiating process and the drafting of a new international treaty is based on the
rule of consensus between nearly 200 countries
This has proven to be disadvantageous since some countries which do not agree with the treaty try to slow it
down, try to make it less effective and then ultimately refuse to ratify it once adopted
ii. Ottawa Procedure
There has been a gradual shift to this procedure when drafting new treaties.
Only those states who genuinely want to enter into the treaty are involved in the negotiating process. Those
states which are not involved are free to agree to the standards set or not.
Trivia Only: Named after the process used on the Ottawa Treaty or the Anti-Personnel Mine Ban Convention,
otherwise known as the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction wherein there were 133 signatories and where, ironically, some
of those who did not sign were permanent members of the United Nations Security Council who were also the
largest manufacturers of anti-personnel mines
5. Significant Examples
i. Hague Conventions of 1907
I - The Pacific Settlement of International Disputes
II - The Limitation of Employment of Force for Recovery of Contract Debts
III - The Opening of Hostilities
IV - The Laws and Customs of War on Land
V - The Rights and Duties of Neutral Powers and Persons in Case of War on Land
VI - The Status of Enemy Merchant Ships at the Outbreak of Hostilities
VII - The Conversion of Merchant Ships into War-Ships
VIII - The Laying of Automatic Submarine Contact Mines
IX - Bombardment by Naval Forces in Time of War
X - Adaptation to Maritime War of the Principles of the Geneva Convention
XI - Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War
XII - The Creation of an International Prize Court [Not Ratified]
XIII - The Rights and Duties of Neutral Powers in Naval War
ii. Geneva Conventions of 1949
First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in
the Field, 1864
Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, 1906
Third Geneva Convention relative to the Treatment of Prisoners of War, 1929
Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949
iii. Additional Protocols
Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts
Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts
Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem
III. Customs
1. Definition
i. Customary international law is made up of rules that come from "a general practice accepted as law" and that exist
independent of treaty law. Customary international humanitarian law (IHL) is of crucial importance in todays armed
conflicts because it fills gaps left by treaty law in both international and non-international conflicts and so strengthens the
protection offered to victims. (International Committee of the Red Cross)
2. Advantages
i. Flexibility
Unlike treaties which take decades to reach its final form, customs can easily change with the times
ii. Wide Coverage
Customs fill the gaps left by treaty law in both international and non-international conflicts and so strengthens
the protection offered to victims
3. Disadvantages
i. It is very difficult to base uniform practice of law, military instruction, and the repression of breaches on custom
Customs are different for each country; the accepted custom of one is not necessarily the accepted custom of
all. Furthermore, accepted customs within the same country changes with the times so a custom deemed
acceptable in the present might not be acceptable in the future
ii. Customs are difficult to formulate
For the same reason as the aforementioned disadvantage
iii. Always subject to controversy
Customs lack the negotiating process of treaty law wherein the meaning and binding effect of the rules are
discussed with certainty and clarity
4. Martens Clause
i. A state that has not ratified any human rights treaty is still bound by the rules of customary international law
ii. This is an example of a principle which was introduced within a treaty, the 1899 Hague Convention, and ultimately
became part of customary international law
5. List of Customary IHL Rules (http://www.icrc.org/customary-ihl/eng/docs/v1_rul)
i. Principle of Distinction
ii. Specifically Protected Persons & Objects
iii. Specific Methods of Warfare
iv. Use of Weapons
v. Treatment of Civilians and Persons Hors de Combat
vi. Implementation
6. Sources of Customary IHL (http://www.icrc.org/customary-ihl/eng/docs/src)
i. Treaties
ii. Other Instruments
Instruments other than treaties such as the Lieber Code
iii. Military Manuals
This category of practice includes all types of instructions to armed and security forces such as manuals,
directives and teaching booklets.
iv. National Legislation
This category of practice includes constitutional law, pieces of legislation and executive orders.
v. National Case-Law
Supreme court decisions
vi. Other National Practice
This category includes official State practice, other than military manuals, national legislation and national
case-law. It includes, for example, government statements in parliament and before the United Nations,
official reports, pleadings before the International Court of Justice and reservations and declarations made
upon ratification of treaties.
vii. United Nations
This category includes resolutions, statements and reports issued by UN organs and bodies
viii. Other International Organizations
This category includes resolutions, decisions and reports of regional organizations and other international
organizations outside of the United Nations system such as African Commission on Human and Peoples
Rights
ix. International Conferences
x. International & Mixed Judicial & Quasi-Judicial Bodies
This category includes the various types of practice emanating from judicial and quasi-judicial bodies (military
tribunal), such as judgments, advisory opinions, views and general comments
xi. International Red Cross & Red Crescent Movement
Resolutions of the Council of Delegates of the International Red Cross and Red Crescent Movement
xii. Other
This category includes statements by armed opposition groups, reports by non-governmental organizations, as
well as publications from non-governmental sources reporting on State and other practice.
IV. General Principles of Law Recognized by Civilized Nations
1. Definition
i. Principles of domestic law which are common to all legal orders
2. Significant Examples
i. Humanity
That humankind shall be treated humanely in all circumstances by saving lives and alleviating suffering, while
ensuring respect for the individual. It is the fundamental principle of humanitarian response
ii. Necessity
An attack or action must be intended to help in the military defeat of the enemy, it must be an attack on a
military objective
iii. Proportionality
Harm caused to civilians or civilian property must be proportionate and not excessive in relation to the
concrete and direct military advantage anticipated by an attack on a military objective
iv. Distinction
belligerents must distinguish between combatants and civilians
v. Prohibition of Causing Unnecessary Suffering
vi. Independence of ius in bellum from ius ad bellum
CIVILIANS And COMBATANTS
Three fundamental principles:
a. The principle of distinction
b. The principle of limitation
c. The principle of proportionality
Fundamental Distinction
- critical to the theory of justice in war (jus in bello)
- specifies who and what can be attacked and who and what cannot be attacked.
CIVILIANS
- all persons other than combatants.
- are persons who are not members of the armed forces or militia.
COMBATANTS
-members of armed forces.
ARMED FORCES
Hague Regulations (1907)
Article 1:
The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1) To be commanded by a person responsible for his subordinates;
2) To have a fixed distinctive emblem recognizable at a distance;
3) To carry arms openly; and
4) To conduct their operations in accordance with the laws and customs of war.
Definition and Characteristics
a. Activities
CIVILIANS COMBATANTS
-do NOT take a direct part -do take direct part
in hostilities in hostilities

b. Rights
CIVILIANS COMBATANTS
-do not have the right to -have the right to take a direct part
take a direct part in hostilities in hostilities (but have the obligation to
(but have the right to be respected) observe IHL)

Armed forces and peaceful population of belligerent nations
Lawful and unlawful combatants.
Lawful Combatants
-are subject to capture and detention as prisoners of war by opposing military forces.
Unlawful Combatants
-are likewise subject to capture and detention, but in addition, they are subject to trial and punishment by military tribunals for acts which
render their belligerency unlawful.
c. Punishable
CIVILIANS COMBATANTS
-may be punished for their mere -may NOT be punished for their mere
participation in hostilities participation in hostilities
Accusation: Unlawful Belligerency
Case of Pius Nwaoga v. The State
Element of disguise
Deliberate and intentional killing of an unarmed person living peacefully inside the Federal Territory is a crime against humanity.

d. Protection
CIVILIANS COMBATANTS
-are protected because they -are protected when they
do NOT participate: do no longer participate:
a. as civilians in the hands of 1. if they have fallen into
the enemy the power of the enemy
b. against attacks and effects of 2. if wounded, sick, or shipwrecked.
Hostilities 3. if parachuting out of an aircraft in distress
- are protected against some means and methods of warfare even while fighting
Additional Protocol II
Article 13(3) of the 1977 Additional Protocol II provides that civilians shall enjoy protection against the dangers arising from military operations
unless and for such time as they take a direct part in hostilities.
Who are the Combatants?
Rule 3. All members of the armed forces of a party to the conflict are combatants, except medical and religious personnel.
Combatant status, on the other hand, exists only in international armed conflicts.
The following are considered as combatants:
members of armed forces even if they profess allegiance to a non-recognized government,
members of rebel movements,
members of militias,
members of armed resistance movements,
members of the armed forces of a third country put at the disposal of a country in conflict.
Who are civilians?
any person who is not a member of armed forces is considered to be a civilian
Persons who are not, or no longer, members of the armed forces
civilians are persons who do not participate in hostilities
a civilian does not thereby become a combatant entitled to prisoner-of-war status and, upon capture, may be tried under national law for the mere
participation in the conflict, subject to fair trial guarantees
Exception:
leve en masse
Fundamental Obligation of Combatants to Distinguish Themselves from the Civilian Population
Rule106. Combatants must distinguish themselves from the civilian population while they are engaged in an attack or in a military operation
preparatory to an attack. If they fail to do so, they do not have the right to prisoner-of-war status.
The generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units
of a Party to the conflict
State practice indicates that in order to distinguish themselves from the civilian population, combatants are expected to wear a uniform or a
distinctive sign and must carry arms openly
Relativity of the Distinction in Modern Conflicts
Guerrilla Warfare
Guerrilla fighters use tactics like bombing of public places used predominantly by civilians
In guerrilla warfare, combatants often do not display any distinctive signs but blend in with the rest of the population in order to avoid
identification.
Situations where structures of authority have disintegrated
Disintegration of state structures occurs when government effective control fades away.
Different factions are fighting against the government
As an effect, civilians will be likely to identify with the dominant local factions
Every combatant is his own commander