The Laws of War and Unaffiliated Actors: Expanding the Scope of Ratione Personae

 

Hunter Hogan


Introduction. 2

I. Two forces, one Expansive and one Restrictive, have shaped the Laws of War 3

II. Scope of application of the Laws of War—ratione materiae and ratione personae. 5

A. After recognizing that civil wars and insurgencies can be as destructive as international war, the scope of ratione materiae expanded to include some internal armed conflicts. 6

B. Destructive actions by non-soldiers led states to expand the scope of ratione personae to include conditional classes of actors. 8

III. The six conditions to ratione personae are unnecessary. 14

A. The command and control condition should be discarded because it no longer increases enforcement of the Laws of War 15

B. The condition that classes must generally respect the Laws of War should be discarded because it is paradoxical, unnecessary, and counter-productive. 17

C. The Expansive Force led to the distinction doctrine, which led to two conditions based on status badges—both conditions should be transformed. 18

D. The “organized” condition should be discarded because it is a misplaced attempt to determine the scope of ratione materiae. 20

E. The condition that insurgents must sustain military operations is a misplaced attempt to determine the scope of ratione materiae and should be discarded. 21

IV. Courts should reinterpret the Laws of War to include unaffiliated actors within the scope of ratione personae  22

 

Introduction

The coalition forces led by the United States have withdrawn from Iraq and an intense and violent civil war is raging. Concerned that war crimes may be committed during the civil war, the United Nations Security Council authorizes the Prosecutor of the International Criminal Court to investigate possible violations of the Laws of War and indict those that have violated the Laws.

 

The violence between the two sides affects many people in the country. One woman, UA, has many friends that have been killed in the civil war and she blames the other side. She is not part of any army, insurgency, or armed group, but she plans an attack. She places a devastating bomb in a hair salon that filled with the wives and children of the soldiers that fight for the other side—her attack kills many people.

 

If this type of attack had been carried out by a soldier, then the Prosecutor could easily charge the soldier with the war crime of purposely directing an attack at civilians. Under the traditional interpretation of the customary Laws of War, however, the Prosecutor cannot charge UA with any war crime whatsoever. The Laws of War have typically only applied to actors affiliated with an organized fighting group. Since UA is not part of a fighting group—she is an “unaffiliated actor”—courts have not interpreted the Laws of War as applying to her and consider her incapable of committing a war crime.

 

The Laws of War only apply to specific classes of actors. Furthermore, most of these classes must meet certain conditions before the Laws of War apply to them. This paper argues that all of the conditions are unnecessary and that no class of actor should have to meet any condition before the Laws of War cover its conduct. If courts adopt this interpretation, then prosecutors can indict, and courts can convict, unaffiliated actors for violations of the Laws of War.

 

Part I of this paper explains that the scope of application of the Laws of War has expanded over time. Part II identifies the classes of actors that are currently covered by the Laws of War and what conditions those actors must meet. Part III examines each of the conditions and concludes that each is unnecessary. Part IV suggests that applying the Laws of War to unaffiliated actors is consistent with the purposes of the Laws of War and with other areas of international law.

I. Two forces, one Expansive and one Restrictive, have shaped the Laws of War

It is not necessary to have any laws in war. Analytically speaking, “total” war would be simpler than “regulated” war because states would not have to enforce any rules. States rejected total war long ago, however, and imposed restrictions on war.[1] Simply put, states created the Laws of War to limit the death and destruction of war. The early prohibition against poisoned weapons is an excellent illustration of this principle.[2] Strategically, a poisoned weapon is more effective than a non-poisoned weapon. Enemies that were merely wounded during battle by a regular non-poisoned weapon can return to fight in a future battle, but poisoned weapons are more likely to kill the victim and that reduces the number of potential soldiers in future battles. Given this perspective, it seems odd that states would prohibit poisoned weapons.

 

On the other hand, if one views the situation from the perspective that states want to limit the death and destruction of war, then this prohibition makes sense. The privilege[3] to kill enemy soldiers is based on the status that the enemy soldier has because he is fighting.[4] If the soldier is so wounded as to be incapacitated—he stops fighting—then his status changes and his enemy no longer has the privilege to kill him. Killing an incapacitated soldier is unnecessary and is prohibited because states want to limit the death and destruction of war. The poison from a poisoned weapon only kills wounded soldiers after they have stopped fighting and is therefore unnecessary.

 

The Laws of War, like all international law, are constantly evolving and changing. The desire to limit the death and destruction of war is the major force driving changes in the Laws of War. This “Expansive Force” has expanded the scope of application of the Laws of War over time to include more types of armed conflicts,[5] types of conduct,[6] and classes of actors.[7]

 

Working contrary to the Expansive Force is the “Restrictive Force”—impediments to enforcement of the Laws of War. It has historically been difficult for a state to force its enemy to follow the Laws of War.[8] A major criticism of the Laws of War, for example, is that they are merely victors’ justice because the Laws were typically only enforced against the losing side.[9] Because impediments to enforcement exist, various mechanisms and limitations exist within the Laws of War to encourage compliance and enforcement. The Restrictive Force is weaker than the Expansive Force, so the scope of application of the Laws of War has generally increased over time—despite the Restrictive Force limiting the application of the Laws of War.

 

While the Laws of War have been codified in a number of treaties, conventions, domestic laws, and military codes, it is customary international law that contains the full substance of the Laws.[10] Treaty laws, especially from major treaties, are still vital to the Laws of War because they “support and supplement” customary international law.[11] State ratification of the Hague Convention[12] and of the 1949 Geneva Conventions[13] has been so pervasive that the rules in them have passed into customary international law.[14] These treaties are important signals of customary international law and courts often use them as evidence of the scope and substance of the Laws of War.[15] To determine whether unaffiliated actors should have duties under the Laws of War, courts should reexamine the purposes of the Laws of War while using the major treaties as evidence of the purposes. Said differently, a teleological reinterpretation of the Laws of War would clearly lead to duties for unaffiliated actors.

II. Scope of application of the Laws of War—ratione materiae and ratione personae

The Laws of War have a limited scope of application. The scope of covered conduct—the scope of ratione materiae[16]—is limited to acts during an armed conflict that are related to the armed conflict.[17] The scope of covered actors—the scope of ratione personae[18]—is limited to the classes of actors that have been specifically defined in the Laws of War.[19] Historically, individuals who were not associated with a fighting group, unaffiliated actors, have not been within the scope of ratione personae.[20] Some classes, such as armies, are automatically within the scope of ratione personae, most classes, however, must meet certain conditions before the class is within the scope of ratione personae.

 

By definition, the only actors that have duties[21] under the Laws of War are those that fall within the scope of ratione personae. As discussed below, limiting the scope of ratione personae to the current classes of actors was often necessary because of the Restrictive Force—impediments to enforcing the Laws of War. This paper argues, however, that those impediments have been overcome and that limiting the scope of ratione personae is no longer necessary. Expanding the scope of ratione personae to include unaffiliated actors is consistent with the Expansive Force—the desire to limit the destruction of war—because the expansion will increase the number of actors that have duties under the Laws of War.

 

Part II.A examines the expansion of the definition of “armed conflict” under the Laws of War. Part II.B identifies the classes of actors that may fall within the scope of ratione personae. Additionally, Part II.B identifies the generally accepted conditions each of those classes must meet before the class is within the scope of ratione personae.

A. After recognizing that civil wars and insurgencies can be as destructive as international war, the scope of ratione materiae expanded to include some internal armed conflicts

While this paper focuses on the scope of ratione personae—what classes of actors should have duties under the Laws of War—the issue is heavily influenced by the expansion of the types of armed conflict that fall within the scope of ratione materiae. Therefore, a brief examination of the evolution of the definition of “armed conflict” is necessary and useful.

 

The desire to limit the destruction of civil wars and insurgencies led states to expand the scope of ratione materiae from traditional interstate wars to include some internal armed conflicts. The Restrictive Force, however, has prevented a universally-recognized definition of internal armed conflicts from emerging.

 

Until the middle of the 20th century, the scope of ratione materiae clearly included wars between or among states, but civil wars, insurgencies, or wars of national liberation were typically excluded.[22] After witnessing the horrors of the Spanish Civil War and examining the new problems presented by partisans during World War II, states recognized a need to expand the scope of ratione materiae to include armed conflicts that were not between or among two or more established states.[23] Starting with the 1949 Geneva Conventions, which covered “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties,”[24] the scope of ratione materiae expanded to include some armed conflicts that were internal.[25] Because the norms in the 1949 Geneva Conventions are now customary international law, the scope of ratione materiae indisputably includes some internal armed conflicts.[26]

 

While it is clear that some internal armed conflicts are included within the scope of ratione materiae, no universally-recognized definition of internal armed conflicts exists.[27] Each definition tries to find the balance between two competing issues: using the Laws of War to limit the destruction of war in as many internal armed conflicts as possible; and respecting the sovereignty of states by not forcing states to use international law to handle riots and banditry.[28] One prominent definition of an internal armed conflict comes from Protocol II: fighting between a state’s armed forces and an armed group that 1) has a command and control structure, 2) occupies enough territory to engage in sustained military operations, and 3) implements Protocol II.[29] More recently, the Rome Statute of the International Criminal Court only requires 1) that the conflict be “protracted” and 2) that the armed groups be “organized.”[30]

 

For the purposes of this paper, it is not necessary to determine which definition is dominant or likely to be used in a particular court. It is important, however, to note that all of the definitions have two common features: 1) the armed groups must have a command and control structure, or at least be “organized”[31]; and 2) the armed groups must engage in enough military operations to create the requisite intensity of fighting.[32]

 

As explained in the next Part, the expansion of the scope of ratione materiae to include some internal armed conflicts necessitated including new classes of actors within the scope of application of the Laws of War. States anticipated that enforcing the Laws of War on these new classes would be difficult, therefore, the Restrictive Force led to conditions that the classes must meet before they are within the scope of ratione personae.

B. Destructive actions by non-soldiers led states to expand the scope of ratione personae to include conditional classes of actors

The scope of ratione personae originally included only regular soldiers in a state’s formal army.[33] States recognized that other actors can cause devastation during an armed conflict, so the scope of ratione personae expanded to include many new classes of actors, such as militias, volunteer corps,[34] partisans,[35] and ordinary civilians who spontaneously resist an invasion.[36] Furthermore, the inclusion of internal armed conflicts within the scope of ratione materiae led to the expansion of the scope of ratione personae to include peoples fighting against racist powers, peoples fighting against colonial powers, and other insurgents.[37] The Restrictive Force checked this expansion, however—requiring states to apply the Laws of War to internal disturbances is an affront to the sovereignty of the state and states have placed restrictions on the scope of ratione personae to preserve their sovereignty.[38] An “unaffiliated actor” is an actor that is not part of any class of actors that falls within the scope of ratione personae. Historically, states viewed unaffiliated actors as bandits and their actions as mere criminal activity.[39] Consequently, unaffiliated actors are outside of the scope of application of the Laws of War and do not have any duties under the Laws of War.[40]

 

Regular soldiers in the state’s formal army are automatically included within the scope of ratione personae.[41] Originally, armies, as a class of actors, were automatically included because their states signed a treaty,[42] but the Hague Convention and the 1949 Geneva Conventions have passed into customary international law so any army is now automatically included.[43]

 

Most classes of actors, however, are not automatically with the scope of ratione personae—the class must meet certain conditions by performing specific acts, or structuring their group in a particular way, before the class is included.[44] Militias, volunteer corps,[45] and partisans,[46] for example, must 1) have a command and control structure, 2) display distinctive emblems, 3) carry arms openly, and 4) generally respect the Laws of War.[47]

 

Inhabitants of a territory that spontaneously resist the invasion of an enemy but did not have time to organize into a militia are within the scope of ratione personae if they 1) carry arms openly and 2) generally respect the Laws of War.[48]

 

The 1949 Geneva Conventions, Protocol I,[49] and Protocol II[50] all allow insurgents potentially to fall within the scope of ratione personae, but each treaty has a different set of conditions for insurgents.[51] Under Protocol II,[52] insurgents must 1) have a command and control structure, 2) occupy enough territory so the insurgency can engage in sustained military operations, and 3) implement Protocol II.[53] Note that under Protocol II, the conditions that insurgents must meet before falling within the scope of ratione personae are the same elements used to determine if the armed conflict falls within the scope of ratione materiae.[54]

 

Protocol II lays out the conditions insurgents must meet (the scope of ratione personae) by defining the type of armed conflict to which the Protocol applies (the scope of ratione materiae). Like the drafters of Protocol II, the drafters of Common Article 3 considered defining the scope of ratione materiae. Common Article 3 applies to “armed conflict not of an international character,”[55] and the drafters considered defining the term “conflict” because they wanted to prevent the Article from applying to anarchy, petty rebellions, or plain banditry.[56] Also like the drafters of Protocol II, the drafters of Common Article 3 considered the definition of armed conflict (the scope of ratione materiae) to be co-extensive with the conditions a class must meet to be within the scope of ratione personae.[57] Ultimately, the drafters of Common Article 3 rejected the need to define “conflict”, or lay out the conditions insurgents must meet, because the drafters believed that an “armed conflict” can only be carried out by “armed forces.”[58]

 

While the “armed forces” of a state are fairly easy to identify, it is not clear what the “armed forces” of an insurgency look like.[59] Said differently, what conditions must the armed forces of an insurgency meet before they are within the scope of ratione personae of Common Article 3? While there is no consensus precisely what conditions suffice,[60] those conditions are certainly less stringent than the conditions under Protocol II.[61] The list of possible conditions, however, is a familiar list:[62] 1) the insurgents be “organized”, 2) the insurgents conduct sustained military operations that produce the required “intensity” of an armed conflict, and 3) the insurgents generally respect the Laws of War.[63]

 

Lastly, Protocol I[64] defines insurgents as the class of actors who are “fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.”[65] The conditions Protocol I insurgents must meet to be within the scope of ratione personae are: 1) be organized, 2) have a command and control structure, and 3) have an internal disciplinary system which enforces the Laws of War.[66]

 

The Rome Statute of the International Criminal Court is a treaty that establishes the International Criminal Court (ICC) and grants the ICC the power[67] to adjudicate “serious crimes of international concern.”[68] This power, or jurisdiction,[69] is limited to specific subject-matter and includes “war crimes.”[70] War crimes is defined as 1) grave breaches of the 1949 Geneva Conventions, 2) serious violations of the customary Laws of War “applicable in international armed conflicts,” and 3) serious violations of the customary Laws of War “applicable in armed conflicts not of an international character.”[71] The ICC, however, does not have the power to hear all alleged war crimes. Just as the ICC must have jurisdiction over the type of conduct, it must have “jurisdiction over persons” who are accused of the conduct.[72] The “jurisdiction over persons” of the ICC is sophisticated, but any actor that is the citizen of state signatory to the Rome Statute or any actor that commits a war crime within the territory of a state signatory to the Rome Statute is probably within the “jurisdiction over persons” of the ICC.[73]

 

The ICC has subject-matter jurisdiction over violations of the customary Laws of War, but, because customary international law is not codified,[74] the full scope of application of the Laws of War cannot be defined in the Rome Statute. The Rome Statute, however, does define a minimum floor to the scope of ratione materiae.[75] The Rome Statute includes lists of conduct prohibited in international or non-international armed conflicts,[76] and it defines non-international armed conflicts as those “that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.”[77]

 

Defining these minimums to the scope of ratione materiae is certainly useful, but the Rome Statute does not define the scope of ratione personae at all.[78] The Rome Statute does define the “jurisdiction over persons” of the ICC, but that is not the same as the scope of ratione personae under the Laws of War—it is possible for an actor to fall within the scope of ratione personae but not within the “jurisdiction over persons” of the ICC. For example, during an international war between two states that are not signatories to the Rome Statute, a soldier uses a poisoned weapon against an enemy soldier. This is clearly within the scope of application of the Laws of War, and it is equally clear that it is not within the jurisdiction of the ICC.[79]

 

Since the scope of ratione personae is not defined in the Rome Statute, the ICC will have to determine what the scope is by looking to customary Laws of War. Furthermore, it is interesting to note that while the Rome Statute does not explicitly include unaffiliated actors within the scope of ratione personae, it does not exclude unaffiliated actors either. In other words, the ICC has the power to decide that unaffiliated actors are within the scope of ratione personae.

 

Under the Laws of War, most classes of actors must meet conditions before the class is within the scope of ratione personae. Those classes include militias, volunteer corps, partisans, spontaneously resisting inhabitants, Common Article 3 insurgents, Protocol I insurgents, and Protocol II insurgents. Because these classes must meet conditions before the class is within the scope of ratione personae, this paper will refer to these classes as Conditional Classes (or singularly, a Conditional Class).

 

The set of conditions for each Conditional Class is particular to that class, but all of the conditions come from the following list: 1) a command and control structure; 2) generally respect the Laws of War, or implement a specific treaty, or actively enforce the Laws of War; 3) display a distinctive emblem; 4) carry arms openly; 5) be organized; and 6) occupy territory to sustain military operations, or sustain military operations to produce an intense armed conflict.

 

The next Part analyzes each of these six conditions. After concluding that each condition should either be discarded or transformed from a condition to the class being within the scope of ratione personae into a condition precedent to the individuals actors receiving the privileges of the Laws of War, this paper argues in Part IV that unaffiliated actors should be within the scope of ratione personae.

III. The six conditions to ratione personae are unnecessary

The six conditions to being within the scope of ratione personae all exist because of the Restrictive Force—impediments to enforcement of the Laws of War. States created each condition believing that it would increase compliance with, or enforcement of, the Laws of War. This paper suggests that there are now significantly better ways to achieve those goals by removing the conditions.

 

It is important to note that the conditions are applied to the entire class, not to individuals within that class. A specific individual is covered only if the entire class that the individual belongs to is covered.[80]

A. The command and control condition should be discarded because it no longer increases enforcement of the Laws of War

The Laws of War have an enforcement problem—only a clear “winner” can easily hold the enemy responsible for violations of the laws of war. Losers (and even winners that do not attain complete victory) usually cannot hold the enemy responsible because peace agreements typically involve prisoner swaps but rarely include one side delivering suspects to the other side for trial.[81] Furthermore, states have little or no reason to prosecute their own soldiers and citizens for violations of the Laws of War. States realized that the Laws of War were meaningless without enforcement; therefore, the Restrictive Force led states to create treaties that required states to hold their own soldiers and citizens responsible.[82]

 

States can effectively enforce the Laws of War on their regular soldiers through the army’s internal command and control structure and internal discipline system.[83] Conversely, it is more difficult for states to enforce the Laws of War on irregular soldiers because irregulars may not be part of a group with a command and control structure. In an attempt to fix this problem, some Conditional Classes must have a command and control structure as a condition to being within the scope of ratione personae.[84] These Conditional Classes have a strong incentive to meet this condition because, until they are within the scope of ratione personae, they cannot gain the privileges of the Laws of War[85] such as the privilege to kill.[86] States tend to use military tribunals to comply with their treaty obligations and to enforce the Laws of War, especially when a command and control structure is available to the state.[87] The practical outcome of the command and control condition is the use of military tribunals to enforce the Laws of War.

 

Despite the prudence of this condition, recent developments have made it unnecessary, and counter productive, to maintain the command and control condition. In the last fifteen years, a number of competent international tribunals have emerged: the International Criminal Tribunal for Rwanda tries persons accused of committing war crimes in Rwanda;[88] the International Criminal Tribunal for the former Yugoslavia (ICTY) tries war crimes that may have happened in the states that were formerly part of Yugoslavia;[89] and at least 104 states have signed a treaty to create the ICC, which can prosecute war crimes.[90] All three of these tribunals have been heavily criticized, but they are at least as fair as domestic military tribunals.[91] These new international tribunals are in addition to domestic courts applying the Laws of War to events that happened outside of their territory—such as Israel’s prosecution of Germans for war crimes committed during World War II.[92] The combination of international tribunals and extraterritorial domestic courts is at least as effective as military tribunals; therefore, the command and control condition is unnecessary. Limiting the scope of ratione personae with this condition prevents the application of the Laws of War to many situations that give rise to the evils the Laws of War are meant to mitigate.

 

The long-term trend has to been to expand the application of the Laws of War because it helps to limit the death and destruction resulting from war. Before these international criminal courts existed, the command and control condition focused on a highly practical means of enforcing the Laws of War—military discipline and punishment in regular armies—and therefore limited the destruction of war. Now that these courts exist, the command and control condition only narrows the scope of application of the Laws of War without any discernable benefit. The command and control condition should be discarded.

B. The condition that classes must generally respect the Laws of War should be discarded because it is paradoxical, unnecessary, and counter-productive

All of the Conditional Classes include the condition that the class must generally respect the Laws of War before the class is within the scope of ratione personae.[93] States created this condition for reasons similar to why they created the command and control condition—historically, it has been difficult to force actors to respect the Laws of War. The explicit goal of the Laws of War is to encourage all classes of actors to conform their behavior to the Laws of War. States know that actors typically want to be within the scope ratione personae because that is the only way an actor can gain privileges such as the privilege to kill.[94] The privileges that come with being within the scope of ratione personae are a strong incentive for classes to try to meet this condition—generally respecting the Laws of War.

 

There are four reasons for discarding this condition. First, this condition creates an analytical paradox. To reduce the destruction of war, the Laws of War must apply to a Conditional Class. For the Laws of War to apply to the Conditional Class, the class must generally respect the Laws of War. If the class regularly violates the Laws of War, then the class is not within the scope of ratione personae and therefore the Laws of War do not apply. If the Laws of War do not apply, then the Laws cannot help to limit the destruction of war. Conversely, if a class generally respects the Laws of War because of the possibility that the Laws will be enforced against it, then the class is within the scope ratione personae, but since the class is generally respecting the Laws of War, enforcement by courts is less necessary. To break this paradox, this should not be a condition to the scope of ratione personae.

 

Second, as discussed above, competent international courts can now enforce the Laws of War.[95] Since all classes of actors should expect that their violations of the Laws of War will be prosecuted in an international court, it is not necessary to make the class’s general respect of the Laws of War a condition.

 

Third, under the current system, either the entire class is within the scope of ratione personae, or the entire class is outside the scope of ratione personae.[96] During an armed conflict, if only some members of a Conditional Class are respecting the Laws of War, but not enough actors to meet this condition, then the entire Conditional Class is excluded from the scope ratione personae, therefore the entire Conditional Class does not gain any privileges under the Laws of War. Furthermore, since the partially-compliant Conditional Class is not within the scope of ratione personae, the Laws of War do not impose any duties on the entire Conditional Class. This condition creates a disincentive for members of a partially-compliant Conditional Class to conform to the Laws of War because the members do not gain any privileges. Technically, the class cannot be held accountable for violations of the Laws of War because the class is outside the scope of ratione personae. By discarding this condition, all actors will gain an incentive to follow the Laws of War to the best of their ability because any infraction is within the scope of ratione materiae and could be prosecuted.[97]

 

Finally, it is not necessary to use this condition as an incentive for actors to gain the privileges of the Laws of War. Instead, the Laws of War should be interpreted to include all actors within the scope of ratione personae, and then create conditions the individual actors must meet before the individual actors gain the privileges of the Laws of War. Transforming this condition into specific conditions precedent to gaining privileges still creates an incentive for actors to respect the Laws of War but does not paradoxically exclude the worst violators from the scope of ratione personae.

 

In sum, this condition to the scope of ratione personae is paradoxical, unnecessary, and counter-productive. It limits the classes of actors that gain duties under the Laws of War by giving a strong incentive to some classes to generally respect the Laws of War. The incentive is misplaced, however, and the same effect could be achieved through a different mechanism. Instead of making it a condition to being with the scope of ratione personae, the Laws of War should make actors respect specific duties as a condition to earning privileges under the Laws of War.[98]

C. The Expansive Force led to the distinction doctrine, which led to two conditions based on status badges—both conditions should be transformed

At various points in history, states have realized that civilians (non-combatants) often suffer the most from war.[99] Sometime after the Middle Ages, states began to require that their armies distinguish between combatants and civilians,[100] and some have called the universal acceptance of the distinction doctrine[101] the “greatest triumph” of international law.[102]

 

The distinction doctrine says that it is illegal to attack a person that does not have the status of combatant. This creates a new problem: how does one distinguish between a combatant and a civilian? To remedy this problem, the Laws of War require combatants to distinguish themselves from civilians by using status badges.[103] The two major status badges are displaying distinctive emblems and carrying ones arms openly. This seems to be a good solution because status badges help the enemy comply with the distinction doctrine because the status badges clearly mark who is a valid target. The solution creates a new problem—individual combatants do not have an incentive to use status badges because the status badges do not directly benefit the individual and even offer a tactical advantage to the enemy. Therefore, in an attempt to increase the use of status badges, the Restrictive Force led states to make the use of status badges a condition to the class being within the scope of ratione personae.[104] Like the two conditions above, actors want to be within the scope of ratione personae to gain the privileges of the Laws of War, so the status badge conditions create a strong incentive for the actors to use status badges.[105]

 

There are three reasons why status badges should not be a condition. First, this condition can create a disincentive for some actors to wear status badges. If most members of a particular class are not using status badges, for example, then no member of that class will be within the scope of ratione personae—even those members that do use status badges. Actors are within the scope ratione personae only if the entire class that the actor belongs to is within the scope ratione personae; if the Conditional Class that the actor belongs to is not using status badges, then even if that actor uses status badges, the actor is outside of the scope ratione personae.[106] Because using status badges will not place the actor within the scope ratione personae, members of a partially-compliant Conditional Class do not have an incentive to use status badges.[107] Furthermore, since status badges tend to be tactical disadvantage, members of a partially-compliant class should avoid using them.

 

Second, if a Conditional Class is not using status badges, then they do not have duties under the Laws of War. Only actors within the scope ratione personae have duties, but if a Conditional Class is not using status badges, then the class is not within the scope ratione personae, therefore the class does not have any duties. This condition can have the unintended effect of limiting the number of people that have duties under the Laws of War. There is no reason to remove all duties of the Laws of War simply because a class of actors is not using status badges.

 

Finally, there is a more effective way to use incentives to get actors to use status badges. Instead of making status badges a condition to the entire class being within the scope ratione personae, it would be more effective to make the use of status badges a condition precedent to each individual actor gaining privileges under the Laws of War.[108] Transforming this into a condition precedent will be a strong incentive for individual actors and it avoids the problems of disqualifying individual actors because they belong to a partially-compliant class and removing all duties from non-compliant actors.

D. The “organized” condition should be discarded because it is a misplaced attempt to determine the scope of ratione materiae

Protocol I insurgents and Common Article 3 insurgents must be "organized" before the class falls within the scope of ratione personae.[109] The drafters of Protocol I included this condition because they wanted Protocol I to apply only to fighting that is of a “collective character . . . [and] conducted under proper control and according to rules, as opposed to individuals operating in isolation with no corresponding preparation or training.”[110] In other words, “organized” was made a condition to the scope of ratione personae to prevent the unintended expansion of the armed conflict definition—the scope of ratione materiae.

 

The drafters of Common Article 3 were similarly worried about the scope of ratione materiae including “any act committed by force of arms—any form of anarchy, rebellion, or even plain banditry.”[111] Common Article 3 applies to armed conflicts not of an international nature and the drafters considered defining “conflict” to prevent the Geneva Conventions from being applied to too broadly.[112] Defining “conflict” would be an explicit definition of the scope of ratione materiae of the Laws of War. The drafters rejected defining this aspect of scope of ratione materiae because the armed conflicts covered by Common Article 3 must involve “armed forces” that are bound by the Geneva Conventions.[113] Armed forces, of course, are any of the classes of actors that fall within the scope of ratione personae. In sum, the drafters decided it was unnecessary to limit the scope of ratione materiae because the scope of ratione personae was narrow enough to exclude banditry and short-term rebellions.

 

Placing the condition on a class that it be “organized” before it falls within the scope of ratione personae is misplaced. As shown above, this condition is not about trying to determine what class of actors should be subject to the duties of the Laws of War—states created this condition to limit the types of armed conflict in which the Laws of War would apply. Redundantly applying the same criteria to the scope of ratione materiae and the scope of ratione personae unnecessarily limits actors that fall within the scope of ratione personae. As shown above, states want to avoid applying the Laws of War to riots and banditry; therefore, internal armed conflicts are limited to actual civil wars and true insurgencies. Before applying the Laws of War, courts first confirm that an armed conflict actually exists.[114] Since internal armed conflicts do not include riots and banditry, courts will not apply the Laws of War to these situations. It is therefore unnecessary to apply this condition to the scope of ratione personae just to exclude riots and banditry.

 

Furthermore, only acts associated with the armed conflict are within the scope of ratione materiae. Therefore, the scope of application of the Laws of War similarly excludes banditry that takes place during an armed conflict.[115] Again, the purpose behind this condition was to exclude riots and banditry from the scope of ratione materiae but it is unnecessary to use this condition to meet that goal.

 

The effect of applying this condition is to exclude, unnecessarily, actors that cause destruction during an armed conflict. Unaffiliated actors, such as UA in the hypothetical situation at the beginning of this paper,[116] can cause destruction and the Laws of War should cover their actions. Court should discard this condition to being within the scope of ratione personae.[117]

E. The condition that insurgents must sustain military operations is a misplaced attempt to determine the scope of ratione materiae and should be discarded

Protocol II insurgents must have control over enough territory to conduct sustained military operations before the class is within the scope of ratione personae.[118] As discussed above, Protocol II explicitly links the scope of ratione materiae (the definition of armed conflict) to the scope of ratione personae.[119] Similar to the “organized” condition, this condition is really about preventing the application of the Laws of War to riots and banditry.

 

Some commentators believe that Common Article 3 insurgents must conduct enough military operations to raise the “intensity” of the armed conflict to a required level.[120] Again, this condition is an attempt to prevent the scope of ratione materiae from including riots and banditry.[121] This is further evidenced by the ICTY’s Tadic decision and the Rome Statute. In the Tadic Appeal of Jurisdiction, the ICTY held that, under the Laws of War, an armed conflict only exists if the fighting is of a required “intensity.”[122] The Rome Statute codifies the definition of internal armed conflict from Tadic and similarly requires that the fighting reach a required level of intensity.[123] Both the Tadic court and the Rome Statute use the “intensity” of the armed conflict to define the scope of ratione materiae. Neither source attempts to limit the scope of ratione personae, however, to insurgent groups that can maintain the required intensity. In total, while some commentators believe that Common Article 3 insurgents can only fall within the scope of ratione personae if the insurgents can sustain military operations that produce an “intense” armed conflict, this condition to the scope of ratione personae is really a substitute method for determining the existence of an armed conflict.

 

Like the “organized” condition above, this condition is misplaced. Also like the “organized” condition, this condition is not about trying to determine what class of actors should be subject to the duties of the Laws of War—this condition is about preventing the Laws of War from applying to riots and banditry, but unnecessarily limits which actors are within the scope of ratione personae. Therefore, courts should discard the condition that insurgents sustain military operations.[124]

 

Each of the six conditions to being within the scope of ratione personae is outdated, paradoxical, unnecessary, counter-productive, or misplaced; therefore, courts should discard the conditions. The next Part examines the natural consequence of discarding all of these conditions—the expansion of the scope of ratione personae to include all actors.

IV. Courts should reinterpret the Laws of War to include unaffiliated actors within the scope of ratione personae

The Expansive Force has led states to regulate the actions of many classes of actors, and the Restrictive Force has led to states placing conditions on many of those classes before they are within the scope of ratione personae. Each condition was created for one of three purposes: 1) to increase actual enforcement of the Laws of War; 2) to give an incentive to actors to respect the Laws of War, including incentives respect specific Laws of War; or 3) to prevent the Laws of War from being applied to riots or banditry.

 

States created the command and control condition to increase the actual enforcement of the Laws of War. This condition is no longer necessary because competent international courts and domestic courts using their extraterritorial powers can effectively enforce the Laws of War. Courts should discard the condition.[125]

 

States created the conditions that classes must generally respect the Laws of War and use status badges as incentives to the classes. Actors want to gain the privileges of the Laws of War and states use the possibility of gaining those privileges as an incentive to the class to meet those conditions. As shown above, these conditions do not always have the desired effect because they are paradoxical, unnecessary, and counter-productive. There are two main problems with this system. First, if a class is not meeting the condition, then the individual actors lose their incentive to meet the condition. Second, when a class fails to meet a condition, the entire class is outside the scope of application of the Laws of War; therefore, courts cannot convict any member of the class for violations of the Laws of War.

 

It would be much more effective to require individual actors to meet certain duties as a condition precedent to the conferral of privileges on that specific actor. This system is more effective for two reasons. First, even when most actors are not eligible for privileges, individual actors can still earn privileges by complying with their duties. Second, when actors, or the class they belong to, fail to meet the conditions, they are still within the scope of application of the Laws of War and can therefore be convicted of violations of the Laws of War. This is much more consistent with the Expansive Force than conditions on classes is.

 

The last two conditions—be organized and sustain military operations—were created to prevent the Laws of War from being applied to riots and banditry. Courts should discard both of these conditions because they unnecessarily restrict the scope of application of the Laws of War. First, as conditions on the scope of ratione personae they do nothing to restrict the scope of ratione materiae. Courts first examine whether a situation is an armed conflict or a mere riot. This is a question of the scope of ratione materiae, not ratione personae. If an armed conflict exists, then it is not, by definition, a riot or banditry. Second, by applying these conditions to the scope of ratione personae, it unnecessarily disqualifies some actors from the scope of application of the Laws of War. Furthermore, the requirement that all acts be associated with the armed conflict keeps riotous acts and banditry that occur during an armed conflict from being with the scope of application of the Laws of War. In sum, the scope of ratione materiae is well defined and prevents the Laws of War from applying to riots and banditry; therefore, it is inconsistent with the Expansive Force to apply these two conditions to the scope of ratione personae.

 

Currently, states are dealing with the fact that terrorists, armed groups that do not meet the above conditions, and unaffiliated actors can cause significant damage during an armed conflict. Since these actors are not traditionally within the scope of ratione personae, they do not have any duties under the Laws of War. Courts should reexamine purposes behind limiting the scope of ratione personae under the customary Laws of War. After examining the purposes and conditions above, courts should conclude all of the conditions are inconsistent with the Expansive Force and that the Restrictive Force no longer necessitates the use of the conditions. Therefore, courts should discard the conditions and include all actors within the scope of ratione personae.

 

Including all possible actors within the scope of ratione personae is consistent with other areas of international law. The scope of ratione personae for genocide, for example, includes all actors.[126] Said differently, anyone can be held liable for the crime of genocide regardless of their affiliation with an armed group or state. Similarly, the scope of ratione personae for crimes against humanity includes all actors.[127] These two areas of international law are the most closely related to the Laws of War and it is logical to bring the Laws of War in line with them.

 

Including all actors within the scope of ratione personae creates some new tasks for courts and commentators. First, the duties of unaffiliated actors are not clear. Courts and commentators have been struggling to determine what duties insurgents have and it will likely be an even harder task to determine the duties of unaffiliated actors.[128]

 

Second, this paper suggests designating some duties should be conditions precedent to actors gaining privileges. Courts and commentators will need to determine the relationships between duties and privileges.



[1] 4 Encyclopedia of Crime & Justice 1664-66 (Joshua Dressler ed., 2002) (explaining that “[v]irtually every recorded civilization placed” restrictions on warfare, and providing examples spanning the last 4,000 years).

[2] 4 Encyclopedia of Crime & Justice 1665 (Joshua Dressler ed., 2002) (noting that the Greeks and Romans prohibited poisoned weapons).

[3] “[A] privilege is the opposite of a duty.” Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 32 (1913). “A duty . . . is that which one ought or ought not to do.” See infra note 21. Assume that person X normally has a duty not to kill other people; if the law allows person X to kill an enemy soldier, then person X has the privilege to kill. This paper prefers the term “privilege to kill” to either the term “right to kill” or the term “license to kill” even though all three terms are often used to mean the same thing.

[4] Edward K. Kwakwa, The International Law of Armed Conflict: Personal and Material Fields of Application 10-11 (1992) (stating that the privilege to kill in war stems from the status of the enemy as a soldier and killing someone that has lost that status is unnecessary destruction) (quoting Jean-Jacques Rousseau, The Social Contract 56, M. Cranston transl. (1968)).

[5] 4 Encyclopedia of Crime & Justice 1666-67 (Joshua Dressler ed., 2002) (charting the recent development of the Laws of War that apply to civil wars, colonial wars, and guerilla wars); See infra Part II.A.

[6] 4 Encyclopedia of Crime & Justice 1662-68 (Joshua Dressler ed., 2002) (providing various definitions of war crimes, sources of war crimes, and a brief history of the expansion of war crimes).

[7] 4 Encyclopedia of Crime & Justice 1668-70 (Joshua Dressler ed., 2002) (charting the expansion of war crimes trials from only prosecuting soldiers to include prosecutions against doctors, judges, industrialists, manufacturers, politicians, and local militias); See infra Part II.B.

[8] Major William H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 3 n.5 (1973) (citing as examples of this problem that the Korean Armistice required the United States to release all 34 prisoners accused of war crimes and that the Vietnam peace agreement similarly prohibited the United States from prosecuting any adversary for war crimes—and suggesting that this phenomenon explains why there were very few international war crimes tribunals prior to World War II) (citing Morris Greenspan, The Modern Law of Land Warfare 30 n.82 (1959) (Korean conflict); Leo Gross, The Punishment of War Criminals, 2 Neth. Int’l L. Rev. 356 (1955) (lack of war crimes tribunals).

[9] See, e.g., Alexander K.A. Greenawalt, Justice Without Politics? Prosecutorial Discretion and the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583, 680 (2007) (noting that the Nuremburg trials could only prosecute people that acted in the interest of the Nazis).

[10] Cf. Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 98 (ICTY Ap. Ch. Oct. 2, 1995) (“[T]here exists a corpus of general principles and norms on internal armed conflict embracing common Article 3 but having a much greater scope.”).

[11] See, e.g., Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 98 (ICTY Ap. Ch. Oct. 2, 1995) (“[C]ustomary law and treaty law . . . have thus crystallised, which are by no means conflicting or inconsistent, but instead mutually support and supplement each other.”).

[12] Convention Respecting the Laws and Customs of War on Land (IV), Oct. 18, 1907, 36 Stat. 2277 [hereinafter Hague Convention].

[13] States signed four Geneva Conventions in 1949, and this paper will refer to them collectively as the “1949 Geneva Conventions.” See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 3 U.S.T. 3114, T.I.A.S. 3362 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, T.I.A.S. 3363; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 3 U.S.T. 3316, T.I.A.S. 3364 [hereinafter Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. 3365.

[14] E.g., Prosecutor v. Tadic, Case No. IT-94-1-A, Appeal of the Judgement, 92 n.113 (ICTY Ap. Ch. July 15, 1999) (the 1949 Geneva Conventions have “undoubtedly . . . become part of customary international law”); Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 98 (ICTY Ap. Ch. Oct. 2, 1995) (“[C]ommon Article 3 of the 1949 Geneva Conventions [is part of customary international law], as was authoritatively held by the International Court of Justice [in the] Nicaragua Case, at para. 218”); Id. at 118 (The “general principles governing the conduct of hostilities [is] the so-called ‘Hague Law.’”); Kwakwa, supra note 4, at 13-14 (“the provisions of the Hague Conventions are considered as embodying rules of customary international law.”); Id. at 18 (citing numerous authorities to support the proposition that the 1949 Geneva Conventions are not only customary international law but embody jus cogens, or “peremptory norms of international law from which no derogation is permitted”).

[15] See, e.g., Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶¶ 67-70 (ICTY Ap. Ch. Oct. 2, 1995) (analyzing various provisions of the 1949 Geneva Conventions, Protocol I, and Protocol II to determine the definition of “armed conflict” under customary international law).

[16] The term “scope of ratione materiae” is synonymous with the term “material field of application.” The words “material” and “matter” are both derived from the Latin word “materiae.” The Laws of War are concerned with certain “matters,” hence the term “scope of ratione materiae.”

[17] E.g., Geneva Convention I, supra note 13, arts. 2-3 (applies during an armed conflict, occupation, and armed conflicts not of an international nature); See infra Part II.A (detailing the expansion of the definition of armed conflict); Henry H. Perritt, Jr., Making International Criminal Law Realistic, ___ London L. Rev. ___ (forthcoming 2007) (conduct must have a nexus to the armed conflict to be within the scope of ratione materiae).

[18] The term “scope of ratione personae” is synonymous with the term “personal field of application.” Of course, person and personal are both derived from the Latin “persona.” The Laws of War impose duties on persons and states—persons that have duties under the Laws of War are within the scope of ratione personae.

[19] See infra Part II.B.

[20] See infra Part II.B.

[21] Hohfeld, supra note 3, at 32 (“A duty . . . is that which one ought or ought not to do.”).

[22] E.g., Hague Convention, supra note 12, preamble (stating that the purpose of the Convention was to “prevent armed conflicts between nations”). See also Kwakwa, supra note 4, at 10-17 (quoting Grotius as arguing that war is a between states not men, detailing the codification of the Laws of War, and concluding that Common Article 3 from the 1949 Geneva Convention introduced the idea that the Laws of War applied to non-international wars).

                Nevertheless, the domestic laws of the state where the armed conflict is located apply even if conduct falls within the scope of application of the Laws of War.

[23] See Lester Nurick, The Distinction Between Combatant and Non-Combatant in the Law of War, 39 Am. J. Int’l L. 680 (1945) (predating the 1949 Geneva Conventions, noting that the Spanish Civil War was practically a “total” war and that the Laws of War “must take into account the ways in which future wars may be fought” or the Laws are meaningless). Cf. Jean S. Pictet, I Commentary on the Geneva Conventions of 12 August 1949, at 49 (1952) (noting that extending the Laws of War to cover partisans was one of the most difficult problems of the Conventions).

[24] Article 3 from all four of the 1949 Geneva Conventions are identical, hence the name “Common Article 3.” See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3, Aug. 12, 1949, 3 U.S.T. 3114, T.I.A.S. 3362.

[25] Pictet, I Commentary on the Geneva Conventions, supra note 23, at 38 (stating that because Common Article 3 extended the Laws of War to internal conflicts that it was one of the “most important Articles” and that it “marks a new step forward”).

[26] See supra note 14 and accompanying text.

[27] Perritt, supra note 17 (detailing multiple definitions from treaties, case law, and commentary).

[28] Perritt, supra note 17.

[29] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts art. 1(1), June 8, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].

[30] Rome Statute of the International Criminal Court art. 8(2)(f), July 17, 1998, UN Doc. A/CONF.183/9 of 17 July 1998 [hereinafter Rome Statute].

[31] Anthony Cullen, Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law, 183 Mil. L. Rev. 66, 104 (2005) (explaining that the “organized” standard from the Rome Statute is different from the command and control standard from Protocol II).

[32] Perritt, supra note 17 (detailing multiple standards from treaties, case law, and commentary).

[33] See, e.g., Kwakwa, supra note 4, at 88-89 (quoting Francis Lieber’s Instructions for the Government of the Armies of the United States in the Field that fighting men who are not part of the organized army are the equivalent of highway robbers or pirates) (citing U.S. Adjutant General’s Office, War Dept. General Orders No. 100, Wash., D.C., Apr. 24, 1863).

[34] When a militia or volunteer corps is part of the state’s regular army, then the Laws of War do not distinguish it from the regular army. See infra note 45.

[35] The text of Geneva Convention III uses the term “organized resistance movement” instead of partisan. See Geneva Convention III, supra note 13, art. 4. This article will use the term partisan for two reasons. First, the drafters of the 1949 Geneva Conventions were clearly targeting partisans, and second, the term “partisans” is more distinct from the term “insurgents” than is “organized resistance movements.” See Pictet, III Commentary on the Geneva Conventions, supra note 23, at 49 (using the term “partisans” interchangeably with the phrase “organized resistance movements”).

[36] E.g., Hague Convention, supra note 12, annex arts. 1-2 (militia, volunteer corps, and ordinary civilians who spontaneously resist an invasion); Pictet, III Commentary on the Geneva Conventions, supra note 23, at 49 (partisans).

[37] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts art. 1(4), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I] (peoples fighting racist powers or colonial powers); Protocol II, supra note 29, art. 1(1) (insurgents). See also Perritt, supra note 17 (explaining how the 1949 Geneva Conventions, Protocol I, and Protocol II apply to insurgents).

[38] See e.g., Protocol II, supra note 29, art. 3 (“Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State.”); Pictet, I Commentary on the Geneva Conventions, supra note 23, at 43-44 (explaining that some states opposed Common Article 3 because they believed it would entitle ordinary criminals to the protections of the Convention, require states to release captured rebels at the end of hostilities, and generally prevent states from using legitimate means to repress insurgents); Perritt, supra note 17.

[39] Cf. Rome Statute, supra note 30, art. 8(2)(f) (the statute “applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature”);. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) art. 1(2), June 8, 1977, 1125 U.N.T.S. 609. (“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.”); Jean S. Pictet, III Commentary on the Geneva Conventions of 12 August 1949, at 28 (1960) (noting that in a civil war, the government views its adversaries as criminals).

[40] This paper uses the term “the scope of ratione personae” only to refer to actors that have duties under the Laws of War. States designed many of the Laws of War to protect individuals, for example, Laws about the treatment of prisoners. These Laws of War talk about duties owed to individuals, but often do not explicitly mention what actors owe the duty to the individuals. In this paper, the term “scope of ratione personae” 1) assumes that any, and all, actors that owe a duty to any individual is within the scope and 2) does not include any individuals that do not owe duties to others.

[41] E.g., Hague Convention, supra note 12, annex art. 1.

[42] Pictet, I Commentary on the Geneva Conventions, supra note 23, at 30 (stating that the Convention is binding only on signatories).

[43] See supra note 14.

[44] Additionally, the type of armed conflict limits what classes of actors may be within the scope of ratione personae. For example, the Hague Convention includes within the scope of ratione personae “inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves”, if the inhabitants “carry arms openly and if they respect the laws and customs of war.” Hague Convention, supra note 12, art. 2 annex. This situation describes a type of armed conflict—an international war where one state is invading, but not yet occupying, another state. This type of armed conflict allows for spontaneously resisting inhabitants, as a class, to possibly fall within the scope of ratione personae. However, this class could not possibly fall within the scope of ratione personae if the type of armed conflict was an international war where one state had already occupied the other state. For the purposes of this article, it is not necessary to connect class definitions to types of armed conflict.

[45] When a militia or volunteer corps is the army, or is part of the army, then the class does not have to meet these conditions because armies are automatically included within the scope of ratione personae. Hague Convention, supra note 12, annex art. 1 (“In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination ‘army.’”).

[46] Partisans were explicitly included within the scope of ratione personae by the 1949 Geneva Conventions. See supra note 35. The 1949 Geneva Conventions primarily focus on issues such as wounded soldiers, POWs, and the protection of civilians. See Kwakwa, supra note 4, at 16-17. The 1949 Geneva Conventions, however, do not list all of the possible duties that combatants have. The 1949 Geneva Conventions, for example, does not explicitly prohibit the use of poisoned weapons. The Hague Convention does explicitly prohibit the use of poisoned weapons, and lists many other duties for combatants. See Hague Convention, supra note 12, annex art. 23(a); Kwakwa, supra note 4, at 12-13. The 1949 Geneva Conventions and the Hague Convention have passed into customary international law, and states universally accept that partisans have the same duties as militias. See supra note 14.

[47] Hague Convention, supra note 12, annex art. 1 (defining the conditions for militias and volunteer corps); Geneva Convention III, supra note 13, art. 4 (defining the conditions for militias and volunteer corps and adding partisans—“organized resistance movements”).

[48] Hague Convention, supra note 12, annex art. 2.

[49] Protocol I covers wars of national liberation. See Kwakwa, supra note 4, at 19. It has detailed provisions dealing with medical personnel, neutral states, missing and dead persons, methods of warfare, POWs, and protection of civilians.

[50] Protocol II covers internal armed conflicts, but not if Protocol I covers the armed conflict. See Kwakwa, supra note 4, at 22. It focuses on duties owed to prisoners, wounded people, and civilians.

[51] The treaties, however, do not use the term “insurgents.” Common Article 3 uses the term “Party.” See Common Article 3, supra note 24; Pictet, III Commentary on the Geneva Conventions, supra note 23, at 35-38 (describing Common Article 3 as applying to “rebel” parties). Protocol I uses the term “peoples.” Protocol I, supra note 37, art. 1; Jean Pictet et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 53-54 (Yves Sandoz, Christophe Swinarksi & Bruno Zimmermann eds., 1987) (defining “peoples” as those in an armed conflict struggling “against colonial domination, alien occupation or a racist régime . . . in order to exercise [a] right to self-determination”). Protocol II explicitly builds on Common Article 3 and uses the term “dissident armed forces.” Protocol II, supra note 29, art. 1(1).

[52] Many more states have adopted the Hague Convention and the 1949 Geneva Conventions than have adopted Protocol II; this article, however, only uses Protocol II as evidence of the customary Laws of War. See Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 98 (ICTY Ap. Ch. Oct. 2, 1995) (holding that the “core” of Protocol II has passed into customary international law); Kwakwa, supra note 4, at 23 (“It is doubtful whether Protocol II will achieve the degree of universal acceptance that Common Article 3 has achieved.”).

[53] Protocol II, supra note 29, art. 1(1).

[54] Article 2 of Protocol II defines the “Personal field of application,” or the scope of ratione personae. Protocol II, supra note 29, art. 2. Instead of stating the conditions the insurgency must meet, the Article states that the Protocol applies to the “persons . . . defined in Article 1.” Id. Article 1 of Protocol II defines the “Material field of application,” or the scope of ratione materiae. Id. at art. 1. The scope of ratione materiae of Protocol II only extends to armed conflicts that meet the three elements above. Id. Article 2 specifically incorporates these elements of the definition of armed conflict into the conditions that insurgents must meet before they are within the scope of ratione personae.

[55] Common Article 3, supra note 24.

[56] Pictet, III Commentary on the Geneva Conventions, supra note 23, at 35. Forcing states to apply the Laws of War in these situations intrudes in to the sovereignty of the state. See supra note 38 and accompanying text.

[57] Cf. Pictet, III Commentary on the Geneva Conventions, supra note 23, at 35-37 (detailing the debate over defining “conflict” in order to prevent “a handful of individuals” who attack a police station from claiming protection under Common Article 3).

[58] Jean Pictet, III Commentary on the Geneva Conventions, supra note 23, at 37.

[59] See generally Henry H. Perritt, Jr., The Kosovo Liberation Army: Inside Story of an Insurgency (2007).

[60] Perritt, supra note 17 (detailing multiple possibilities from case law and commentary).

[61] Perritt, supra note 17 (explaining that Protocol II is more restrictive “due to political opposition to giving the Protocol the same scope of application as Common Article 3”) (citing Anthony Cullen, Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law, 183 Mil. L. Rev. 66, 199 (2005)).

[62] Commentators agree that if the state recognizes the existence of the insurgency, then the insurgents are within the scope of ratione personae and the remaining conditions are irrelevant. See, e.g., Pictet, III Commentary on the Geneva Conventions, supra note 23, at 36; Perritt, supra note 17.

[63] Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 70 (ICTY Ap. Ch. Oct. 2, 1995) (a non-international armed conflict exists when the insurgency is organized and where hostilities are intense enough); Perritt, supra note 17 (noting that some commentators believe that the insurgents must generally respect the Laws of War before they are within the scope of ratione personae).

[64] Protocol I has not been ratified by the United States, but the U.S. agrees that many provisions in Protocol I represent customary international law. See Kwakwa, supra note 4, at 26 n.103. This paper examines Protocol I as evidence of the customary Laws of War.

[65] Protocol I, supra note 37, art. 1(4). While this definition appears either to overlap with Protocol II or to be a subset of internal armed conflict under Common Article 3, it actually extends the definition of international conflict under Common Article 2. Id. at art. 1(3) (“This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.”). The distinction between the two may have some significance. The Laws of War that apply to international conflicts is significantly more developed and sophisticated, while the Laws of War for internal armed conflicts lacks major components such as monitoring provisions. See Kwakwa, supra note 4, at 23-25. For this paper, the differences are not important.

[66] Protocol I, supra note 37, art. 43; Kwakwa, supra note 4, at 90-95 (explaining the three conditions under Protocol I).

[67] Power over a legal object is the ability to change the legal relations of that object. In the ICC context, if the ICC has power over an individual, then the ICC can decide, for example, if the individual has the privilege to kill. Furthermore, if the ICC has power over an individual and the ICC finds the individual guilty of a crime, then the ICC has the power, for example, to remove the actor’s right to freedom or impose the duty to pay a fine. Hohfeld, supra note 3, at 44-51 (defining “power” and contrasting it with the definition of “right”). A right is most easily understood by observing that it is the jural correlative of duty. Id. at 31-32 (“A duty . . . is that which one ought or ought not to do. . . . When a right is invaded, a duty is violated.”). An actor generally has the right to freedom, for example, and this is evidenced by the duty placed on others not to restrict the actor’s freedom. Duty is discussed supra note 21. Privilege is discussed supra note 3.

[68] Rome Statute, supra note 30, art. 1.

[69] Jurisdiction is the power of the court to state the law and decide a matter in controversy. Prosecutor v. Tadic, Case No. IT-94-1-A, Appeal of the Judgement, 10 (ICTY Ap. Ch. July 15, 1999).

[70] Rome Statute, supra note 30, art. 5 (The subject-matter jurisdiction of the ICC “shall be limited to the most serious crimes of concern to the international community as a whole, . . . [including] (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; [and] (d) The crime of aggression.”).

[71] Rome Statute, supra note 30, art. 8.

[72] “Jurisdiction over persons” is an awkward term but it encompasses all of the power (and restrictions) of the ICC to impose criminal responsibility on actors. See, e.g., Rome Statute, supra note 30, art. 1 (the ICC shall have the power to exercise its jurisdiction over persons) (emphasis added); Id. at art. 25(1) (“The Court shall have jurisdiction over natural persons pursuant to this Statute.”) (emphasis added); Id. at art. 26 (“The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.”) (emphasis added).

[73] A full analysis of the “jurisdiction over persons” of the ICC is both beyond the scope of this article and not important to the conclusions of this article. Generally speaking, however, the “jurisdiction over persons” of the ICC extends to three realms: 1) state signatories to the Rome Statute and the subjects of those states, including actors that have been validly bound by the personal jurisdiction of a signatory state’s domestic court; 2) voluntary ascent by a non-signatory state to jurisdiction “with respect to the crime in question”; and 3) assignment of jurisdiction by the United Nations Security Council “acting under Chapter VII of the Charter of the United Nations.” Rome Statute, supra note 30, arts. 12-14. See also ICC at a glance—Jurisdiction, http://www.icc-cpi.int/about/ataglance/jurisdiction.html (last visited May 14, 2007).

[74] See supra Part I.

[75] The Rome Statute explicitly defines the subject-matter jurisdiction of the ICC. The Rome Statute, for example, states that the ICC has subject-matter jurisdiction over the crime of using poisoned weapons. Rome Statute, supra note 30, art. 8(2)(b)(xvii). By listing the crimes that are within the subject-matter jurisdiction of the ICC, the Rome Statute also explicitly places those crimes within the scope of ratione materiae. Article 8(2)(b), for example, grants subject-matter jurisdiction to the ICC over “serious violations of the laws and customs applicable in international armed conflict, . . . namely, any of the following acts: . . .” and then lists specific acts. Logically, all of the acts listed must be within the scope of ratione materiae. Therefore, while the Rome Statute is technically defining the subject-matter jurisdiction of the ICC, it is also defining a minimum list of acts that are within the scope of ratione materiae of the Laws of War.

[76] Rome Statute, supra note 30, art. 8 (listing, inter alia, the use of poisoned weapons).

[77] Rome Statute, supra note 30, art. 8(2)(f).

[78] When prosecuting grave breaches of the 1949 Geneva Conventions, the Conventions define the scope of ratione personae; the Rome Statute, however, does not define the scope of ratione personae for the customary Laws of War.

[79] It is not within the jurisdiction of the ICC based only on the hypothetical facts given. There are additional hypothetical facts that could place it within the jurisdiction of the ICC. See supra note 73.

[80] Cf. Kwakwa, supra note 4, at 94-95 (explaining that the conduct of the class as a whole determines if Protocol I is applicable to the class and that it is possible that an individual actor meets all of the conditions but is not covered by Protocol I because the class of the individual actor fails to meet the conditions).

[81] See supra notes 8-9 and accompanying text.

[82] See, e.g., Hague Convention, supra note 12, art. 1 (“The Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the Laws and Customs of War on Land”); Geneva Convention I, supra note 13, art. 1 (“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”).

[83] Major William H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 2-18 (1973) (detailing a history of using command responsibility to enforce order, discipline, and the Laws of War on subordinates from Sun Tzu to World War II); Carol T. Fox, Note, Closing a Loophole in Accountability for War Crimes: Successor Commanders' Duty to Punish Known Past Offenses, 55 Case W. Res. L. Rev. 443, 445-455 (2004) (detailing the evolution of the command responsibility doctrine from Sun Tzu to the International Criminal Tribunal for the former Yugoslavia).

[84] Militias, volunteer corps, partisans, and some insurgents. See supra Part II.B.

[85] This paper uses a simple model of duties and privileges. First, the paper assumes that all actors with duties, and only those actors with duties, are within the scope of ratione personae. See supra note 40. Second, any actor that has a privilege also has a duty. If an actor has the privilege to kill enemy combatants, then the actor also has the duty not to kill non-combatants (i.e., civilians.). Therefore, any actor that has a privilege under the Laws of War is automatically within the scope of ratione personae. Third, the paper works with a simple two-tiered structure to privileges—if an actor is within the scope of ratione personae, then that actor has some privileges under the Laws of War. Many commentators would reject such a simple two-tiered model. Some commentators believe, for example, that many actors have duties under the Laws of War but not privileges. See e.g., Pictet et al., Commentary on the Additional Protocols, supra note 51, at 1344 (stating that Protocol II do not gain the privileges that come from combatant or prisoner-or-war status); Perritt, supra note 17 (noting that some commentators believe that many insurgents gain duties, but not privileges, under the Laws of War). For the purpose of this article, the simpler model is sufficient.

[86] Perritt, supra note 17.

[87] Cf. Hamdi v. Rumsfeld, 542 U.S. 507, 516-24 (2004) (exploring the use of military tribunals in the United States and concluding that military tribunals can only be used to enforce the Laws of War).

[88] International Criminal Tribunal for Rwanda, http://www.ictr.org.

[89] International Criminal Tribunal for the former Yugoslavia, http://www.un.org/icty/glance-e/index.htm.

[90] International Criminal Court, http://www.icc-cpi.int/about.html. See also supra notes 67-79 and accompanying text.

[91] E.g., David L. Herman, A Dish Best Not Served at All: How Foreign Military War Crimes Suspects Lack Protection Under United States and International Law, 172 Mil. L. Rev. 40, 41 (2002) (surveying different types of war-crimes tribunals, and comparing the military tribunal law of the United States—the Uniform Code of Military Justice—to the ICTY and concluding that the ICTY is “the most effective war-crimes prosecution to date”); Guénaël Mettraux, editorial, Comparing the Comparable: 2006 Military Commissions v. the ICTY, 5 J. Int'l Crim. Just. 59 (2007) (comparing the latest U.S. military tribunal law to the ICTY and concluding that the U.S. military tribunal is inferior).

[92] E.g., Attorney General of Israel v. Eichmann, 36 Int'l L.Rep. 277 (Sup.Ct. Israel 1962). See also In re Demjanjuk, 603 F.Supp. 1468 (N.D. Ohio 1985), affirmed, 776 F.2d 571 (6th Cir.1985) (finding that the district court had jurisdiction to consider Israel’s extradition request of an accused World War II war criminal); Restatement (Third) of Foreign Relations Law § 404 (2006) (stating that some crimes, including war crimes, are subject to the jurisdiction of all countries and citing numerous examples of extraterritorial application by domestic courts of the Laws of War).

[93] To invoke Protocol II, Protocol II insurgents must implement Protocol II. See supra Part II.B. While this is less stringent than generally respecting the Laws of War, the conclusions of this article still apply. Protocol I insurgents must have an internal disciplinary system that enforces compliance with the Laws of War. See supra Part II.B. This article will assume that it is impossible for an insurgency that is meeting its Protocol I duty to enforce the Laws of War is not generally respecting the Laws of War.

[94] See supra note 86 and accompanying text.

[95] See supra notes 88-92 and accompanying text.

[96] See supra note 80 and accompanying text.

[97] Cf. Perritt, supra note 17.

[98] Defining the correlation of specific duties to specific privileges would be necessary after opening the scope of ratione personae to all actors. See infra Part IV.B.

[99] See, e.g., Kwakwa, supra note 4, at 19 (noting that a major impetus for amending the 1949 Geneva Conventions with Protocol I and Protocol II was the recognition that civilians had suffered the most from recent wars despite the existence of the 1949 Geneva Conventions).

[100] Lester Nurick, The Distinction Between Combatant and Non-Combatant in the Law of War, 39 Am. J. Int’l L. 680, 681-82 (1945) (attributing the rise of the distinction doctrine to Grotius and Rousseau and concluding that the distinction doctrine was universally accepted by World War II even if it was imperfectly implemented).

[101] The distinction doctrine sometimes is referred to as the “duty to discriminate.”

[102] Lester Nurick, The Distinction Between Combatant and Non-Combatant in the Law of War, 39 Am. J. Int’l L. 680 (1945) (citing J.M. Spaight, War Rights on Land 37 (1911)).

[103] See, e.g., Protocol I, supra note 37, art. 44(3) (“In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) During each military engagement, and (b) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.”); Hague Convention, supra note 12, annex art. 29 (a soldier who wears a disguise is a spy and does not gain the privileges of the Laws of War).

[104] Militias, volunteer corps, and partisans must display a distinctive emblem and carry their arms openly while spontaneously resisting inhabitants must carry their arms openly. See supra Part II.B.

[105] See supra note 86 and accompanying text.

[106] See supra note 30 and accompanying text.

[107] This is the same affect that a partially-compliant Conditional Class has on the condition of generally respecting the Laws of War. See supra notes 96-97 and accompanying text.

[108] Protocol I has a framework that is similar to this concept. Article 44(3) only requires an insurgent to use status badges on a part-time basis—“(a) During each military engagement, and (b) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.” Protocol I, supra note 37, art. 44(3). Commentators have debated the merits and limits of this article thoroughly and those views would likely be a starting point for adopt this paper’s proposal. See, e.g., Kwakwa, supra note 4, at 98-107. See also Perritt, supra note 17 (arguing that holding insurgents to the same standards as regular armed forces would defeat the purpose of the Laws of War).

[109] Common Article 3 requires insurgents to be at least organized. See supra Part II.B.

[110] Pictet et al., Commentary on the Additional Protocols, supra note 51, at 512.

[111] Pictet, I Commentary on the Geneva Conventions, supra note 23, at 49.

[112] Pictet, III Commentary on the Geneva Conventions, supra note 23, at 35.

[113] Pictet, III Commentary on the Geneva Conventions, supra note 23, at 37 (“Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities.”); Id. at 32 (noting that all four Conventions have a reciprocity clause).

[114] See, e.g., Rome Statute, supra note 30, art. 8(2)(f) (the jurisdiction of the ICC only applies to true internal armed conflicts); Prosecutor v. Limaj, Case No. IT-03-66-T, Judgement, ¶ 83 (Trial Ch. II Nov. 30, 2005).

[115] Perritt, supra note 17 (conduct must have a nexus to the armed conflict to be within the scope of ratione materiae).

[116] See supra Introduction.

[117] Whether an insurgency is organized or not could still be very important when a court is trying to separate "armed conflicts not of an international character" from riots and banditry. A foreign or international court applying the Laws of War to an internal armed conflicts is a serious intrusion into the sovereignty of the state where the alleged armed conflict occurred. See Perritt, supra note 17. A court may require that an insurgency be organized before the court recognizes the existence of an armed conflict. Once a court determines that an armed conflict exists, however, it is not necessary to limit the scope of ratione personae to only those insurgents that are “organized.”

[118] See supra note 53 and accompanying text.

[119] See supra note 54 and accompanying text.

[120] See supra notes 55-63 and accompanying text.

[121] See supra notes 55-58 and accompanying text.

[122] Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 70 (ICTY Ap. Ch. Oct. 2, 1995).

[123] See Rome Statute, supra note 30, art. 8(2)(f); Perritt, supra note 17 (asserting that the drafters of the Rome Statute codified the Tadic court’s definition of armed conflict).

[124] Also like the “organized” condition, this condition is useful for determining the existence of an armed conflict. See supra note 117.

[125] This paper does not suggest that courts should abrogate command responsibility. Holding superior officers responsible for the actions of their subordinates is an effective way to enforce the Laws of War. See generally Parks, supra note 8.

[126] Convention on the Prevention and Punishment of the Crime of Genocide art. 4, Dec. 9, 1948, 78 U.N.T.S. 277; 102 Stat. 3045 (“Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”); Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgement and Sentence, ¶ 151 (ICTR Trial Ch. I Jan. 27, 2000) (“The Genocide Convention is undeniably considered part of customary international law.”); Kadic v. Karadzik, 70 F.3d 232, 239-42 (2d Cir. 1995) (concluding that, under customary international law, individuals are within the scope of ratione personae of genocide); ICC, Elements of Crimes, at 113-15, ICC Doc. ICC-ASP/1/3 (Sep. 10, 2002) (defining genocide).

[127] ICC, Elements of Crimes, at 116, ICC Doc. ICC-ASP/1/3 (Sep. 10, 2002) (defining crimes against humanity as warranting “individual criminal responsibility” and that a perpetrator need not have “knowledge of . . . the precise details of the plan or policy of the State or organization” that is conducting a “widespread or systematic attack against a civilian population”).

[128] See, e.g., Perritt, supra note 17.