In February 2014, heavily armed, professional, and anonymous ‘little green men’ appeared in Crimea. On 4 March 2014, President Putin of the Russian Federation was asked if these men were Russian soldiers; his reply was that “[t]hose were local self-defense units,” whilst later admitting these were Russian military forces. In August 2014, the NATO Supreme Allied Commander in Europe stated that “[i]f we see these actions taking place in a NATO nation and we are able to attribute them to an aggressor nation, that is Article 5. Now, it is a military response.” The key in this statement is that it requires proof of state attribution and responsibility – that the individuals are in fact members of a State military and not simply armed civilians. The importance of this was noted in the International Court of Justice (ICJ) Nicaragua case regarding the United States (US) backing of ‘Contra’ rebels in Nicaragua. The ICJ stated that for state attribution and legal responsibility to the US, it would “have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.”
Increasingly, new categories of people are emerging as separate groups within the field of International Humanitarian Law (IHL). As a result of this, the old IHL distinctions of military and non-military in an International Armed Conflict (IAC), or ‘fighter’ and ‘civilian’ in a Non-International Armed Conflict (NIAC), no longer function to an acceptable degree, and change must be enacted to provide legal clarity on the battlefield. These new groups include direct civilian combatants, cheaper civilian contractors within militaries (both armed and unarmed), and the use by Governments of apparently quasi-civilian forces to achieve strategic goals – little green men. Civilians are not a defined group within IHL, and are only distinguished as being non-combatants, with it being required that civilian objects shall not be the object of attack or of reprisals. Somewhat confusingly however, the International Committee of the Red Cross also states that the majority of military contractors (PMC/PMSCs) fall within the category of civilians as defined by IHL.
To put this problem into context, consider how the nature of warfare has changed. During the Second World War, with some exceptions soldiers and civilians were well defined groups, with the conflict being about organised military forces in combat. Contrast this with modern conflicts in Somalia, Iraq, and Afghanistan. In these conflicts we see that an organised force is quickly destroyed by US and allied military superiority, thus the forces opposing the American and allied forces must engage in asymmetric warfare, which includes being able to blend in with civilian populations in order to successfully execute ‘hit and fade’ strikes. This isn’t about desire, but simply survival, and is currently the only successful tactic employed.
Consider that one day your country is attacked by a technologically superior force. Your military crumbles faster than Donald Trumps composure – what do you do? You still need to survive, but you also want this foreign force out. You may choose to work during the day as a regular person, and engage in attacks against this enemy at night. Are you a civilian or a combatant? If you’re a combatant, do you retain your combatant status during your daytime job where you have no intention of attacking anyone, even though you are a threat as soon as you leave work? What if, due to security concerns, you have to carry a weapon with you at all times? This makes you a clear potential threat, and yet you’re protected due to your civilian status. The problem is that AP1 Article 51(3) states that civilians are protected “unless and for such time as they take a direct part in hostilities,” but this time is not defined.
In a world of shrinking Western defence budgets and a pro-privatisation ideology, PMC’s are very much on the rise. It is noted that PMCs are judged as being civilian on the same criteria as any other person or group, unless they have been incorporated into the armed forces of a party to the conflict in either a formal or de-facto manner. This appears an odd result however – whilst the individuals are indeed civilians, these contractors are taking up roles previously filled by military personnel who would have been legitimate targets. Thus the result would seem to be the continued diminishment of the number/type of legitimate targets, and increasingly making distinction difficult for opposing forces. This itself could lead to a relaxing of civilian protections, based on the argument that the forces in question thought they were targeting civilians assisting opposing forces.
As per the use of Putin’s ‘little green men’, in an era of mass surveillance via various means and the associated US drone strikes in places such as Pakistan and Yemen it is incredibly dangerous to outright identify yourself as a combatant for a particular state, as required under the law of armed conflict. Indeed the modus operandi of groups such as Daesh/ISIL/ISIS/IS is asymmetric warfare that relies on terrorising a civilian populace in order to ensure compliance, or at least destruction of enemy forces regardless of collateral damage. It is unreasonable to expect these ‘terrorist’ groups to abide by targeting and distinction guidelines, nor to be deterred by legal mechanisms such as ICC prosecution for war crimes. Legalities must reflect reality, otherwise the law itself risks becoming so out of touch as to be irrelevant.
Adam Miatke is a final year Juris Doctor student at UWA. He loves International Law, has a great fashion sense, and enjoys long walks on the beach.