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Max Planck Encyclopedia of Public International Law [MPEPIL]


Julia Gebhard

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 26 April 2019

Armed forces — Paramilitary groups — National liberation movements — Prisoners of war — Armed conflict — Warfare, land — Combatants, unlawful — Geneva Conventions 1949

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Definition of Terms

A militia is a military or paramilitary unit or group, which is not composed of professional soldiers but of regular citizens who are trained for their military duty in cases of emergency or as reserve forces to support regular troops. Militias are often not part of a State’s regular armed forces but may play a supplementary role.

The term ‘militia’ is used in international humanitarian treaties even though these instruments lack a clear definition of what constitutes a militia, which may open the term to a subjective interpretation by parties to a conflict (see also Humanitarian Law, International).

As the level of integration of militias and militia armies into the regular armed forces varies from country to country, a central legal problem in connection with militias is whether and under what circumstances they are to be seen as either combatants under international humanitarian law, or as civilians taking part in hostilities (see also Civilian Participation in Armed Conflict; Civilian Population in Armed Conflict). This also affects the question whether members of militias, when falling into the hands of the enemy, are entitled to the status of prisoners of war. Additionally, it can be problematic to determine if and to what extent violations of humanitarian rules and/or human rights committed by members of militias can be attributed to a State itself (see also State Responsibility; War Crimes).

B.  Historical Evolution of Legal Rules and Current Legal Status

According to the Regulations Respecting the Laws and Customs of War on Land, Annex to the 1899 Hague Convention with Respect to the Laws and Customs of War on Land (‘Hague Regulations’ see also Hague Peace Conferences [1899 and 1907]; Land Warfare), the laws of war applied not only to armies, ‘but also to militia and volunteer corps’ (Art. 1 Hague Regulations). The rights and duties of the laws of war did, however, only apply to said groups if they fulfilled four additional conditions, namely ‘to be commanded by a person responsible for his subordinates; to have a fixed distinctive emblem recognizable at a distance; to carry arms openly; and to conduct their operations in accordance with the laws and customs of war’ (ibid). An exception was made for countries in which the army was made up of militia or volunteer corps. In these cases, the combatants fell under the denomination ‘army’. Art. 1 Regulations concerning the Laws and Customs of War on Land, Annex to the 1907 Hague Convention respecting the Laws and Customs of War on Land adopted the same wording.

Some 40 years later, in 1949, the Geneva Convention relative to the Treatment of Prisoners of War (‘Geneva Convention III’ Geneva Conventions I–IV [1949]) dealt with the question of how to distinguish a combatant, who is allowed to take part in hostilities, from a civilian. Pursuant to Art. 4 Geneva Convention III, members of a militia who fall into the hands of the enemy are entitled to the status of prisoner of war in two cases: a) if they are members of militias who form part of the armed forces of a party to the conflict (Art. 4 (1) Geneva Convention III), and b) if they are members of other militias, belonging to a party of the conflict, operating inside and outside their own territory, given that they fulfilled the four conditions set out in Art. 4 (2) Geneva Convention III which are identical to the ones set out in Art. 1 1907 Hague Regulations. Additionally, the chapeau of Art. 4 (2) Geneva Convention III adds two further requirements for irregular forces which have to be organized and to belong to a party to the conflict—a seventh and final condition which can be drawn from case-law is the lack of duty of allegiance to the detaining power (see also Dinstein [2004] 36). However—and even though these issues are highly intertwined—Geneva Convention III does only affect the legal status of militias upon capture and does not touch upon the problem under which circumstances members of militias are to be seen as either combatants or civilians under humanitarian law.

Out of the experiences of World War II, the 1949 Diplomatic Conference which negotiated the Geneva Conventions expressly included organized partisan resistance movements into the definition of ‘militias and other volunteer corps not forming part of the armed forces’ of a party to the conflict. The criteria used in Art. 4 (2) Geneva Convention III was restated in Art. 13 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (‘Geneva Convention I’) and Art. 13 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (‘Geneva Convention II’). The incorporation of militias fulfilling the criteria set out in the Hague and Geneva Conventions and Regulations into the term ‘armed forces’ and the subsequent entitlement of members of such militia to prisoner of war status in case of capture can be said to reflect customary international law.

This is confirmed when looking at military manuals of different States, which can be utilized to demonstrate opinio juris and have as such been used eg by the International Criminal Tribunal for the Former Yugoslavia (ICTY) (see Tadić Case [Appeals Chamber Decision on Defence Motion for Interlocutory Appeal on Jurisdiction] ICTY-94-1-AR72 [2 October 1995] paras 83, 99, 118, 131). The Military Manuals and Handbooks of Canada (Art. 305 (1)–(2)), Germany (Art. 304), the United Kingdom (Art. 8.5–8.6), and the United States (Art. Commander’s Handbook of the Law of Naval Operations; Art. 64 The Law of Land Warfare: Field Manual 27–10; Chapters 2 and 24 Operational Law Handbook) all include militias when defining combatant status, using a standard that fulfils the requirements of Geneva Convention III.

The two additional protocols to the Geneva Conventions adopted in 1977 do not explicitly mention militias in the definition of ‘armed forces’. Geneva Conventions Additional Protocol I (1977) defines armed forces simply as

all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict. (Art. 43 (1) Protocol I; but see also Art. 44 Protocol I)

Geneva Conventions Additional Protocol II (1977) provides that Protocol II applies to all armed conflicts… which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol (Art. 1 (1) Protocol II).

C.  Assessment

10  The omission of an explicit mentioning of militias, along with other military or paramilitary groups in the Additional Protocols, has been said to reflect a development of international humanitarian law intended to bind the whole spectrum of fighting parties in an armed conflict to the rules and standards of the laws of war. This evolution was meant to follow a general shift in the conduct of warfare from conventional inter-State wars to non-international conflicts, civil wars, and asymmetric warfare, including a variety of non-conventional groups of combatants such as guerilla forces, mercenaries, and national liberation movements (see also Wars of National Liberation). In effect, under Protocol I the general distinction between lawful and unlawful combatants as established in the Hague Regulations and the Geneva Conventions has been watered down (Combatants, Unlawful). As far as militias are concerned they are only to be considered combatants with the right to a prisoner of war status if they are fully integrated into the regular army or if they meet the criteria set out in Art. 4 (2) Geneva Convention III or developed on that basis (see above). The International Committee of the Red Cross (ICRC) makes an attempt to improve upon the status of persons of such groups, including militias, which do not meet the conditions of combatants under Art. 4 (2) Geneva Convention III in its Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law by referring to functional criteria rather than to a particular group such as militia. It remains an open question whether this approach will solve the problems evolving from the increasing participation of persons in an armed conflict who are not members of regular armed forces and do not meet the equivalent qualifications. Be that as it may, the notion of militia may become of merely historical interest.

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