Chapter 4 looks at the concept of combatants and non-combatants, and its connected status, that of prisoner of war (POW). It examines who is entitled under IHL to combatant status, and examines those persons who have been denied combatant and POW status under IHL. Particular attention is paid to the status of resistance fighters, national liberation and guerrilla fighters, those participating in a levée en masse, and participants in non-international armed conflicts. The chapter outlines those categories of participant not entitled to combatant status such as spies, mercenaries, so-called unlawful combatants, and private military and security contractors. Chapter 4 also explores the current legal thinking regarding a contentious area of the law – that of civilians taking direct part in hostilities. The rules regarding POW status and the treatment of POWs are described. The chapter concludes by examining another developing area of the law: the power of detention in non-international armed conflicts.

This chapter discusses the development and application of international humanitarian law (IHL) and its interrelationship with human rights law. It further examines this special relationship, which is of particular importance for the protection of civilians, especially where the applicability of IHL is contested or where IHL constitutes an exception to certain rights, such as the right to life, or fails to prevent and/or provide effective remedies for violations. The chapter seeks to identify the scope of application of IHL and demonstrate the degree to which the two can be reconciled. Moreover, a special case is made for the law applicable in situations of military occupation whereby human rights are subordinate to IHL. Despite this subordination, in practice because international human rights tribunals are not mandated to apply humanitarian law they necessarily interpret and enforce the rights of the victims on the basis of the rights found in their respective statutes. As a result, the jurisprudence of human rights tribunals is not always consistent with IHL. Yet, such tribunals are hard pressed to accept jurisdiction over situations which would otherwise be resolved on the basis of IHL alone. This chapter therefore goes on to discuss the exercise of extraterritorial jurisdiction by human rights tribunals.

The chapter discusses the application of the principle of distinction to combatants and civilians, the consequences of that distinction and the issue of those civilians who directly participate in hostilities both in IACs and NIACs. It then discusses the application of the concept in cyber warfare. The chapter then considers the positions of members of private military security companies, unlawful combatants and UN peacekeepers.

IHL has historically been divided into two main branches, consisting of rules that regulate the “means and methods of warfare”and the rules that deal with the “protection of persons and projects.” The rules governing the means and methods of warfare are known as “Hague Law” due to the fact that the main treaties governing this field of law were, for a long time, the 1899 and 1907 Hague Conventions and the annexed Hague Regulations. The provisions dealing with the protection of persons and objects hors de combat (“out of combat”) are known as “Geneva Law,” as these rules can be found in the Four Geneva Conventions of 1949. The two Additional Protocols of 1997 cover both norms concerning the means and methods of warfare, and those protecting individuals. This chapter begins with the foundations and the history of IHL, before discussing the scope of application of IHL and the law governing the conduct of hostilities, namely the means and methods of warfare. The final sections discuss the law governing the protection of persons during armed conflict, and the implementation and enforcement of IHL.

IHL has historically been divided into two main branches, consisting of rules that regulate the “means and methods of warfare”and the rules that deal with the “protection of persons and projects.” The rules governing the means and methods of warfare are known as “Hague Law” due to the fact that the main treaties governing this field of law were, for a long time, the 1899 and 1907 Hague Conventions and the annexed Hague Regulations. The provisions dealing with the protection of persons and objects hors de combat (“out of combat”) are known as “Geneva Law,” as these rules can be found in the Four Geneva Conventions of 1949. The two Additional Protocols of 1997 cover both norms concerning the means and methods of warfare, and those protecting individuals. This chapter begins with the foundations and the history of IHL, before discussing the scope of application of IHL and the law governing the conduct of hostilities, namely the means and methods of warfare. The final sections discuss the law governing the protection of persons during armed conflict, and the implementation and enforcement of IHL.

Section E seeks to show how the law on the conduct of hostilities that would apply in relation to the use of conventional weapons also applies in respect of nuclear weapon operations. The Rules and Commentaries deal with persons participating in the hostilities, who are distinguished from protected civilians, and with specific issues of naval and air warfare. The Rules and Commentaries on nuclear targeting address the notion of ‘attack’, the principle of distinction, prohibited nuclear attacks, the definition of military objectives, proportionality and active and passive precautions. As to methods of nuclear warfare, the Section addresses perfidy and ruses, the improper use of protective indicators and emblems, as well as the concept of zones. The Section further includes Rules and Commentaries on persons and objects entitled to specific protection and on the protection of the natural environment in times of armed conflict.

Joseph Capizzi lays out Catholic just war theory and its tie to the Church’s teaching on conscience. The scriptural context for just war teaching is Jesus’ discourse in John 14, in which he promises to give peace, but not as world gives. The world’s peace is often tainted with the temptation to sacrifice neighbors and innocents. War can be an expression of conscience, but only if ordered toward peace, guided by morality, and open always to the conversion of self and neighbor. The just war approach excludes objectives such as vengeance. It prohibits direct harm to noncombatants. Both sides in a conflict are potential members of the community for whom peace is a goal. As against any duty of military service, US law currently protects the conscience of conscientious objectors (COs) who oppose all wars on the basis of religion or nonreligious morals. It does not, however, protect “selective conscientious objectors” (SCOs), those who oppose only unjust wars. Finally, consistent application of conscience protection instructs that soldiers with moral agency as rational beings with a conscience, should refuse to follow orders against their conscience and the moral law.

As will become evident through the course of this chapter, development in its human rights context is primarily a value that translates into individual and communal well-being. This well-being may be linked to industrial or other financial development, although the correlation between the two is neither self-evident nor necessary. If this right to well-being is to make a difference in the lives of people, whether in poor or rich nations, it must be susceptible to quantifiable measurement through which one is able to assess its progress and realisation. In the last decade experts have developed a list of detailed indicators which allow us to assess well-being more accurately. At the same time, wealthy nations have abandoned ad hoc unilateral efforts to assist their poorer neighbours to escape perpetual cycles of poverty by entering into institutionalised multilateral commitments to contribute part of their annual earnings to developmental goals. These goals are also vigorously pursued by multilateral development banks, such as the World Bank and the African Development Bank.

This chapter presents the scope of combatants as lawful targets in light of considerations of military necessity. Hereunder the scope of the rule prohibiting unnecessary suffering on combatants.