The Law of War and Civilians on the Battlefield: Are We Undermining Civilian Protections?

TLDR: In 2003, U.S. Army Private Jessica Lynch captured the interest of the entire world when, on 2 April 2003, a special operations team rescued her from captivity in the Saddam Hospital compound in Nasiriya, Iraq as mentioned in this paper.

Abstract: ARMY PRIVATE Jessica Lynch captured the interest of the entire world when, on 2 April 2003, a special operations team rescued her from captivity in the Saddam Hospital compound in Nasiriya, Iraq.1 On 23 March, her unit's convoy had taken a wrong turn and was ambushed by Iraqis. Lynch became a prisoner of war (POW) under the law of war-the international body of law principally made up of the Hague Regulations and the Geneva Conventions.2 Her dramatic rescue brought home one of the realities of war-the potential of enemies to capture U.S. troops during armed conflict. As a member of the regular Armed Forces, Lynch had the right to be classified as a POW, which should have guaranteed to her a certain level of treatment while in captivity. A second critical right she received is immunity from prosecution under the enemy's law for any lawful, precapture, warlike acts. This important immunity is referred to as "combatant immunity."3 Thus, if Lynch had shot and killed an Iraqi soldier during the ambush, she could not be tried for murder; she would be "cloaked in a blanket of immunity" for her combatant acts. Lynch's POW status and the privileges that flow from that status were never in doubt. The real debate as to status lies elsewhere-with civilians on the battlefield. The modern battlefield is increasingly populated with civilians and paramilitary operatives who accompany U.S. forces in support of military operations. Assume, for a moment, that civilians are in Lynch's convoy. When the firefight ensues, several Iraqis are killed, and the enemy captures two civilians. The Iraqis quickly discover that one civilian is a contractor hired by the Army to maintain power generators; the other is a CIA paramilitary operative responsible for organizing resistance movements within Iraq. The civilian contractor accompanying the force produces an identification card indicating his status as a civilian accompanying the force. The paramilitary operative has no such card. Both wear civilian attire, but the paramilitary operative has a weapon; the civilian accompanying the force is unarmed. The capture of these civilians brings to the forefront whether they should be afforded the same protections as Lynch received under international law. But, should they be deprived of such protections because their presence on the battlefield somehow violates the principle of "distinction" embedded in the law of war; that is, the principle that civilians must be distinguished from combatants? The Principle of Distinction The principle of distinction is fundamental to the law of war and "is the foundation on which the codification of the laws and customs of war rests[.]"4 Under customary international law (law adhered to by custom) distinction imposes a two-part obligation on the parties to the conflict. First, civilians must be distinguished from combatants. Second, with combatants distinguished from civilians, the parties to a conflict can target only combatants and military objectives. This two-part obligation, codified in 1977 by Article 48 of the First Additional Protocol of the Geneva Conventions of 1949, says, "[T]o ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."5 To accomplish the first prong of distinction-the distinction between civilians and combatants-a line must be drawn between what constitutes a combatant and what constitutes a civilian. An individual can hold only one status of the two under the law of war: combatant or civilian. A combatant is one who has "the right to participate directly in hostilities."6 For example, members of the Armed Forces of a party to the conflict are combatants. The right to participate in hostilities provides them with two important rights on capture: POW status and combatant immunity. …