Arising out of ancient codes International Humanitarian Law was aimed at reducing the calamities of war1 by decreasing human

suffering and safeguarding civilians from warfare.2 International Humanitarian Law realizes that the conflict is between the opposing armed forces and that civilians must be protected from this warfare and its attacks3. Therefore a clear distinction must be made between civilians and combatants to ensure the appropriate balance is made among the need for military, and the considerations of humanity.4 There is no middle ground between these two status, one is either a combatant or a civilian, and cannot be both5

In International conflicts there are Mecenraies who are individual soldiers who require remuneration for their services6. At the end of the Cold War Private Military Companies (PMCs) emerged as a complete corporate structure that provided military services such as logistic consulting or performing as active combatants in return for money or mining rights or providing security for large corporations.7 PMCs have become a significant feature in International armed conflicts.8 For the most part they do not conform to the traditional concepts of mercenarism9. This non-State10 actor plays an important role in International conflict and therefore requires their primary status to be determined. The significant factor would be the degree of participation in the hostilities of which Yoram Dinstein (2004) The Conduct of Hostilities Under the Law of International Armed Conflict Cambridge University Press: New York 2 Shannon Bosch (2012) Introduction (Phd Chapter 1) 3 Shannon Bosch (2012) Introduction (Phd Chapter 1) 4 Shannon Bosch (2012) Introduction (Phd Chapter 1) 5 Shannon Bosch (2012) Introduction (Phd Chapter 1) 6 Bruce Blain The Role of Private and Mercenary Armies in International Conflict (2007) available at http://www.informationclearinghouse.info/article 3396.htm 7 Bruce Blain The Role of Private and Mercenary Armies in International Conflict (2007) available at http://www.informationclearinghouse.info/article 3396.htm 8 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 9 Bruce Blain The Role of Private and Mercenary Armies in International Conflict (2007) available at http://www.informationclearinghouse.info/article 3396.htm 10 Shannon Bosch (2012) Introduction (Phd Chapter 1)
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define their status. 11 Therefore these PMCs must either be a civilian or combatant. The term combatant means that a person who is clothed with this status is able to directly participate in hostilities in International humanitarian law 12, of which obligations and privileges are created13. Although the Geneva Convention provides that a criterion for Prisoner of War is only given to those that are combatants it is not seen as a definitions but as a secondary acquired status14. Combatant status is acquired which in turns provides POW status. Combatant status is not based on the function of the individual in the military be it cooking or frontline fighters, the key qualification is membership and not function15. Some members are regarded as non-combatants although trained to engage in combat they serve in secondary positions such as cooks, judges, government officials, and medics. However despite the non-combatant status they still face military attacks and do not have the privilege of being protected as civilians. Therefore the opposition need not differentiate them from the combatants. When a non-combatant is injured he is given protection under the privileges of POW. Religious and Medical personnel are not allowed to participate in hostilities; they acquire special protection by using armbands to indicate they are not lawful targets. They are not given POW status but are seen as retained personnel.

Shannon Bosch (2012) Introduction (Phd Chapter 1) Dormann, Knutt The Legal Situation of UnlawfulUnpriveldged Combatants 103-2003 Article, International Review of the Red Cross, No. 849 http://www.icrc.org/eng/assets/files/other/irrc_849_dorman.pdf 13 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 14Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 15 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2)
11 12

Combatants are not personally liable for their actions as they are agents of sovereign16 and therefore cannot be punished for their legitimate actions of participating in the hostilities17. What is important is that acquiring combatants status allows for the benefit of the presumption of the secondary status of POW, which is activated if the combatant becomes hors de combat, or falls into enemy hands18. The POW status is invoked, as the individual will not be able to fight back and is not a threat to the military19. They are not criminals, nor are their detention punitive and once the hostilities end they are free to return to their countries20. Combatants are always faced with the risk of legitimate attack despite their current action, or whether in uniform or not, unless they retire or received immunity21. They are obliged to obey the laws of was when carrying the status of combatants. Where a combatant disguises himself as a civilian he/she faces the risk of losing the POW status and will be liable for punishment22. Article 1 of The Hague convention of 1899 and 1907 sets out definition for individuals carrying out combative functions23. The Geneva Convention I IV ICRC (2009) Interpretive Guide on the Notion of Direct Participation in Hostilities Under IHL (Interpretive guide) available at http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihlfeature-020609 17 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 18 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 19 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 20 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 21 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 22 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 23 The laws, rights and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person responsible for subordinates; 2. To have a fixed distinctive emblem recognizable at a distance;
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of 1949 applied the principle of distinction24. Individuals entitled to POW status was found in the GC III article 4A, providing explanation to combatant. The principles reflected similarities to the Hague Convention with one significant difference that membership in an identifiable and organized armed force determined an individuals qualification of combatant status and not the functions that they carry out. Irregular armed forces had specific requirements to meet according to the GC III in order to acquire combatant status25. These requirements became problematic to comply with, and the AP I set out a compromise in article 43-47 in terms of combatant and prisoner of war status, which eased the requirements as per The Hague Convention and the Geneva Convention26. Article 43(1) specified a new definition of armed forces, which eliminated the distinction as per The Hague and Geneva Convention in relation to the irregular and regular armed forces. The two new conditions where: 1. Responsible command under party to the conflict and, 2. Behavior in accordance with the laws of war27 Further article 43(2) provides that all combatants fulfilling these requirements will have POW status, therefore the stringent requirements of irregular armed individuals which were in place falls away, and denial of POW must be

3. To carry arms openly; and to conduct their operations in accordance with the laws and customs of war. 24 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 25 Requirements: 1. To show they belonged to an organized group; 2. To prove they where fighting on behalf of a State party to international armed conflict; 3. To show they belong to a group commandeered by person responsible for subordinates; 4. To ensure group had distinct sign recognizable from a distance; 5. To carry their arms openly; and 6. To obey the Law of war. 26 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 27 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2)

justified by the detaining power28. Were there is a violation of rules of international law on the part of the combatant his primary not secondary status shall be deprived29. The AP I article 44 sets out that if a combatants fails to carry his arms openly and falls into enemy hands then there is a forfeiture of prisoner of war status30. In general circumstances combatants are expected to wear uniforms however in exceptional circumstances failure to meet this requirement would not amount to a perfidious act and will not result in forfeiture of POW status. Ultimately the two determinants for combatant status are: 1. Membership of an armed force that is subject to command responsibility and participating in an international armed conflict, and 2. Observance of the requirement that combatants at minimum carry there weapons openly during and in preparation for any military engagement31. We now move onto the next possible primary status. A Civilian is a contemporary term in the laws of war32. It is clear that civilians are protected against direct attacks33, however the Hague and Geneva law treaties give no express definition of the term as thereby failing to set out the conduct that represents direct participation in hostilities34. The Hague convention and the four Geneva Conventions do specify that persons affected by hostilities must

Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 29 Additional Protocol I Article 44 30 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 31 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 32 Shannon Bosch (2012) The IHL Concept of Civilian Status: a literature review 33 ICRC (2009) Interpretive Guide on the Notion of Direct Participation in Hostilities Under IHL (Interpretive guide) available at http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihlfeature-020609 34 Shannon Bosch (2012) The IHL Concept of Civilian Status: a literature review
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have either one of the statuses, being either civilian or combatant35. Persons that are not members of the armed forces of a party to the conflict and do not participate in lev`ee en masse are civilians who are protected against direct attacks unless they participate in direct hostilities36. It isThe Additional Protocol which aimed to sought the issue of applying a presumption when in doubt as to whether a person is a civilian, that person shall be considered to be a civilian37. Therefore this means that a person may be attacked only if the opposition is completely certain that they are combatants, which offer an advantage for Non-State entities who fail to correctly distinguish themselves and consequently are seen as civilians38. By virtue of customary law civilians must not be made the object of attack39. It is imperative that civilian protection is maintained and conflicting participants must ensure this, by making certain military objectives are aimed at opposition
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. However it is sometimes unavoidable for civilians to be caught in the

cross-fire of direct military attacks. What is notable is that Military commanders are duty bound to remove civilians from the attacked areas as far as possible41. The AP I article 51(5)(b) and article 57(2)(a)(iii) sets out a proportionality test where a reasonably well informed person in the situation as the perpetrator had made reasonable use of information available to him or could have expected great civilian attacks. If this test is satisfied in term of

Shannon Bosch (2012) The IHL Concept of Civilian Status: a literature review ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 20 and 27; Jean-Marie Henckaerts and Louise Doswald-Beck (2005) Customary International Humanitarian Law Volume 1: Rules Cambridge University Press: Cambridge at rule 5. 37 Additional Protocol I article 50(1) 38 Shannon Bosch (2012) The IHL Concept of Civilian Status: a literature review 39 ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 20 and 27; Jean-Marie Henckaerts and Louise Doswald-Beck (2005) Customary International Humanitarian Law Volume 1: Rules Cambridge University Press: Cambridge at rule 5. 40 ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 20 and 27; Jean-Marie Henckaerts and Louise Doswald-Beck (2005) Customary International Humanitarian Law Volume 1: Rules Cambridge University Press: Cambridge at rule 5. 41 Shannon Bosch (2012) The IHL Concept of Civilian Status: a literature review
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civilian attacks then there is no violation of wars 42. The rule is Civilians are prohibited from taking part in direct hostilities and are awarded protection against military target. However the levee en masse is an exception to the rule where civilians are attacked by military troops and retaliate without forming a troop43. Where civilians misuse their status their actions are perfidious44. When civilians take part in hostilities this does not mean they become combatants and if captured they will not acquire prisoner of war (POW). The civilian may not be liable in term of laws of customs of war45 but can face domestic criminal prosecution conducted by military or domestic courts46 of which they are entitled to fundamental rights47. International humanitarian law also recognizes persons that accompany the armed force which may be referred to as private military service contractors (PMSC) or civilians employees carrying out functions such as war correspondents, military aircraft technician, persons servicing military equipment, members of labour units, supply contractors, those involved in food, and those concerned with welfare of soldiers48. These contractors enjoy civilian status with rights and obligations provided they carry identity cards 49.

Shannon Bosch (2012) The IHL Concept of Civilian Status: a literature review ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 20 and 27; Jean-Marie Henckaerts and Louise Doswald-Beck (2005) Customary International Humanitarian Law Volume 1: Rules Cambridge University Press: Cambridge at rule 5. 44 Shannon Bosch (2012) The IHL Concept of Civilian Status: a literature review 45 Solis The Law of Armed Conflict: International Humanitarian Law in War at 211 46 Shannon Bosch (2012) The IHL Concept of Civilian Status: a literature review 47 AP1 article 75 affording the right of humane treatment and proper judicial procedure 48 Giulio Bartolini (2011) Private Military and Security Contractors as Persons who Accompany the Armed Forces in Francesco Francioni and Natalino Ronzotti (eds) War By Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford University Press: Oxford) 49 Giulio Bartolini (2011) Private Military and Security Contractors as Persons who Accompany the Armed Forces in Francesco Francioni and Natalino
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They are given privilege of POW status if captured due to their non-combative functions carried out in close proximity of hostilities50. If they take part in direct hostilities they may lose civilian immunity and POW privileges and likely face criminal prosecution for this violation of the IHL51. Contract securitys who are contractors supporting the armed force are considered civilians52 and cannot be classified as combatants. Their activities are evaluated providing an analysis of the notion of direct participation by these civilians53. These personnel are rarely involved in direct participation and it is not imaginable as these functions are governmental and does not involve private sector performance54. Where a civilian providing welfare functions is involved in direct participation he is subject to lawful direct attack55. Most of the functions carried out by these personnel are considered indirect participation56. Direct participation in Ronzotti (eds) War By Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford University Press: Oxford) 50 Giulio Bartolini (2011) Private Military and Security Contractors as Persons who Accompany the Armed Forces in Francesco Francioni and Natalino Ronzotti (eds) War By Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford University Press: Oxford) 51 Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2) 52 Giulio Bartolini (2011) Private Military and Security Contractors as Persons who Accompany the Armed Forces in Francesco Francioni and Natalino Ronzotti (eds) War By Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford University Press: Oxford) 53 Giulio Bartolini (2011) Private Military and Security Contractors as Persons who Accompany the Armed Forces in Francesco Francioni and Natalino Ronzotti (eds) War By Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford University Press: Oxford) 54 Giulio Bartolini (2011) Private Military and Security Contractors as Persons who Accompany the Armed Forces in Francesco Francioni and Natalino Ronzotti (eds) War By Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford University Press: Oxford) 55 Giulio Bartolini (2011) Private Military and Security Contractors as Persons who Accompany the Armed Forces in Francesco Francioni and Natalino Ronzotti (eds) War By Contract: Human Rights, Humanitarian Law and Private Contractors (Oxford University Press: Oxford) 56 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science

terms of the ICRC interpretative guide provide that the hostile act must meet three requirements57. If a PMSC satisfies the first element then it will not amount to hostile act for which there immunity is expected to be lost58. Where an act constitutes an integral part of the concrete and coordinated tactical (or collective) operation that directly causes such harm, the requirement of direct causation would be fulfilled, and the civilian would lose their immunity from the attack59. It is important to note that the direct causation will be satisfied if PMSC provide guarding services for military objects and personnel60. The belligerent nexus requirement requires an act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another61. The legality of the specific tasks of the security contractors contracted by the US Department of Defence is determined as follows: Guarding civilian hospitals against reprisal in Afghanistan these contractors are clearly clothed with the primary status of being civilian. They will not be participating in hostilities on condition they only use force in self-defense or in

(1) a threshold regarding the harm likely to result from the act, (2) a relationship of direct causation between the act and the expected harm, and (3) a belligerent nexus between the act and the hostilities conducted between the parties of an armed conflict
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Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 59 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 60 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 61 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science
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defense of those civilians they are protecting62. They will therefore not been denied civilian immunity. Interms of Defending a US Armory in Afghanistan against common theft by criminal elements and providing extra security convoys of US troops in Afghanistan it is deduced that: The Interpretative guide suggests that some guarding activities do satisfy the direct participation requirement and direct causation part of the test for direct participation in hostilities63. Where a PMSC is acting defensively as a security guard two factors64 are considered to determine direct participation: 1. Who or what site they are guarding and 2. Who are they using force against. If they defend military personnel or military objects they are seen to be directly participating in hostilities. So these individuals are technically not military targets but if they defend military objects then they become legitimate military targets. Though PMSCs are recruited as security guards they sometimes become private soldiers after private ad hoc training. So these dual sites in terms of the presumption is afforded civilians status unless demined definitely military in nature. If the PMSC are guarding a site or persons and using force against criminal elements rather than parties to the conflict then there is no belligerent nexus to amount to direct participation in hostilities. Therefore PMCS who cause harm in individual self defense or defense of others or exercising power or authority over persons or territory lack belligerent nexus required to qualify as direct participation in hostilities.

Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 63 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 64 Which help to determine whether their statuss are endangered and there protection under IHL.
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If a PMSC who is a civilians is not affected if they participate directly in hostilities, but their protection against direct attacks is suspended and can be subject to prosecution for violation IHL and domesticated crimes65. Where their direct participation comes to an end their civilian immunity is regained. In most cases PMSC are categorized as civilians but are required to be careful to not to participate directly in hostilities66. PMSC that provide guarding services sometimes violate the prohibition of direct participation67. Therefore the focus is on the site that is guarded and the IHL status of those protected as well as the nature of the attack. These civilians are allowed to carry lightweight weapons for the protection of themselves as well as those they are meant to protect68. Conclusively when PMSC who participate directly in hostilities in a irregular manner they will lose civilian status until behavior is ended69. And if they satisfy the direct casual link as well as the belligerent nexus requirement then they forfeit civilian immunity until membership of the group is abandoned or adopt a non-combative function70. PMSC can become legitimate targets if they participate directly71. If they are rendered hors

Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 66 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 67 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 68 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 69 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 70 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 71 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science
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combat then they are given civilian immunity from attack72. If they are in enemies hands they are treated as civilians and to be held accountable for actions and will only be afforded POW if they provide an identity card as civilians accompanying armed forces73.

Bibliography
ADDITIONAL PROTOCOL I (AP I) 1979. Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed Conflicts. UN Treaty Series 1125:3-608.

ICRC 1977. ICRC Commentary to AP. International Legal Materials 16:1391.

2003-2005 ICRC Expert Meetings (2 June 2003:the Hague); (25-26 October

2004:the Hague); (23-25 October 2005:Geneva). http://www.icrc.org/eng/resources/documents/article/other/direct-participationarticle-020709.htm (accessed on 14 July 2012).

2008. The Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict (Montreux Document). http://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf

Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science 73 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science
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2009. ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities under IHL (Interpretive Guide). http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 2012. International humanitarian law and private military/security companies. http://www.icrc.org/eng/resources/documents/faq/pmsc-faq-150908.htm

Dormann, Knutt The Legal Situation of UnlawfulUnpriveldged Combatants 103-2003 Article, International Review of the Red Cross, No. 849 Shannon Bosch Private Military and Security Contractors: Violating the Prohibition Against Civilian Direct Participation in Hostilities, in International Armed Conflicts submitted for publication to the Journal for Juridical Science

Shannon Bosch (2012) Introduction (Phd Chapter 1) Shannon Bosch (2012) The IHL Concept of Civilian Status: a literature review

Shannon Bosch (2012) The IHL Concept of Combatant status: a literature review (PHD Chapter 2)

Yoram Dinstein (2004) The Conduct of Hostilities Under the Law of International Armed Conflict Cambridge University Press: New York