Assessing Revolutionary and Insurgent Strategies

LEGAL IMPLICATIONS OF THE STATUS

OF PERSONS IN RESISTANCE

United States Army Special Operations Command

Assessing Revolutionary and Insurgent Strategies

LEGAL IMPLICATIONS OF THE STATUS OF 

PERSONS IN RESISTANCE

Paul J. Tompkins Jr., USASOC Project Lead

Erin N. Hahn, Editor

Erin N. Hahn and W. Sam Lauber, Contributing Authors

United States Army Special Operations Command

and

The Johns Hopkins University Applied Physics Laboratory

National Security Analysis Department
This publication is a work of the United States Government in 

accordance with Title 17, United States Code, sections 101 and 105.

Published by:

The United States Army Special Operations Command

Fort Bragg, North Carolina

Reproduction in whole or in part is permitted for any purpose of the 

United States government. Nonmateriel research on special warfare is 

performed in support of the requirements stated by the United States 

Army Special Operations Command, Department of the Army. This 

research is accomplished at The Johns Hopkins University Applied 

Physics Laboratory by the National Security Analysis Department, 

a nongovernmental agency operating under the supervision of the 

USASOC Special Programs Division, Department of the Army.

The analysis and the opinions expressed within this document are 

solely those of the authors and do not necessarily reflect the positions 

of the US Army or The Johns Hopkins University Applied Physics 

Laboratory.

Comments correcting errors of fact and opinion, filling or 

indicating gaps of information, and suggesting other changes that may 

be appropriate should be addressed to:

United States Army Special Operations Command

G-3X, Special Programs Division

2929 Desert Storm Drive

Fort Bragg, NC 28310

All ARIS products are available from USASOC at www.soc.mil

under the ARIS link.
ASSESSING REVOLUTIONARY AND 

INSURGENT STRATEGIES

The Assessing Revolutionary and Insurgent Strategies (ARIS) series 

consists of a set of case studies and research conducted for the US Army 

Special Operations Command by the National Security Analysis Department of The Johns Hopkins University Applied Physics Laboratory.

The purpose of the ARIS series is to produce a collection of academically rigorous yet operationally relevant research materials to develop 

and illustrate a common understanding of insurgency and revolution. 

This research, intended to form a bedrock body of knowledge for members of the Special Forces, will allow users to distill vast amounts of 

material from a wide array of campaigns and extract relevant lessons, 

thereby enabling the development of future doctrine, professional education, and training.

From its inception, ARIS has been focused on exploring historical and current revolutions and insurgencies for the purpose of identifying emerging trends in operational designs and patterns. ARIS 

encompasses research and studies on the general characteristics of 

revolutionary movements and insurgencies and examines unique adaptations by specific organizations or groups to overcome various environmental and contextual challenges.

The ARIS series follows in the tradition of research conducted by 

the Special Operations Research Office (SORO) of American University in the 1950s and 1960s, by adding new research to that body of work 

and in several instances releasing updated editions of original SORO 

studies.

VOLUMES IN THE ARIS SERIES

Casebook on Insurgency and Revolutionary Warfare, Volume I: 1927–1962 (Rev. Ed.)

Casebook on Insurgency and Revolutionary Warfare, Volume II: 1962–2009

Undergrounds in Insurgent, Revolutionary, and Resistance Warfare (2nd Ed.)

Human Factors Considerations of Undergrounds in Insurgencies (2nd Ed.)

Irregular Warfare Annotated Bibliography

Legal Implications of the Status of Persons in Resistance

Case Studies in Insurgency and Revolutionary Warfare—Colombia (1964–2009)

Case Studies in Insurgency and Revolutionary Warfare—Sri Lanka (1976–2009)

Case Study in Guerrilla War: Greece During World War II (pub. 1961)

Case Studies in Insurgency and Revolutionary Warfare: Cuba 1953–1959 (pub. 1963)

Case Studies in Insurgency and Revolutionary Warfare: Guatemala 1944–1954 (pub. 1964)

SORO STUDIES

Case Studies in Insurgency and Revolutionary Warfare: Vietnam 1941–1954 (pub. 1964)
iv

DISCLAIMER

This document does not constitute legal advice. It is designed to 

provide an overview of legal information and general analysis on the 

framework that may be applicable to the status of personnel supporting, countering, or comprising a resistance. It is not designed to provide 

a comprehensive picture of the law as applied to a specific situation, 

nor is it designed as a comprehensive assessment of legal issues encountered in the broad context of resistance. Any references to scenarios 

are for descriptive purposes only to lend clarity to a concept or highlight areas of complexity or unsettled law. This document is intended 

as a guide to help educate and advance further research. Government 

counsel will want to ensure that further research accounts for changes 

in the law after the date of this document. Government counsel should 

be sought for an interpretation of the law or to provide guidance on a 

particular course of action.

ACKNOWLEDGMENTS

This manuscript is the result of the collaborative vision of Paul 

Tompkins Jr., chief USASOC, G-3X Special Programs Division, and 

numerous colleagues and reviewers. The authors gratefully acknowledge Colonel Frank N. Sanders for his support of the project, particularly his ideas, guidance, and review of numerous drafts. The authors 

also thank Professors Robert P. Barnidge and Steven I. Vladeck for 

their valuable edits and comments. This project also greatly benefited from the knowledge and efforts of our Johns Hopkins University 

Applied Physics Laboratory colleagues Hale Laughlin and Joe Tonon. 
v

LETTER OF INTRODUCTION

Judging by the title Legal Implications of the Status of Persons in Resistance, a reader might conclude this monograph belongs on a lawyer’s 

bookshelf. However, were that to happen, unconventional warfare 

(UW) strategists and practitioners will have missed an excellent opportunity to expand their collective thinking on UW. I submit to the reader 

and those interested in low-intensity military options that this volume 

should also have a prominent place on the desks of military commanders, military planners, and national security policy makers.

This monograph examines the legal status of US military members 

conducting UW in support of a foreign resistance movement. Tackling 

this subject has been difficult because a US military member’s legal 

status is directly affected by the international legal status or recognition of the resistance movement, which often changes as the movement 

evolves. The authors’ solution is to establish a continuum of resistance 

movement activities—from nonviolent to violent—that captures the 

changing nature of any resistance movement and its methods, international recognition, and legal status. This construct allows for a US 

military member’s legal status to be examined at various points during 

the evolution of a movement.

The authors use this construct to present case studies and operational vignettes, illustrating legal theory with real-world examples and 

demonstrating the interplay between a movement’s violent or nonviolent activities, international recognition of the resistance, and US 

policy makers’ interpretations of international and domestic law. All of 

these factors influence the US government’s consideration of UW as a 

viable policy option in countries experiencing unrest. These same elements also represent potential operational restrictions on the conduct 

of a UW campaign and forecast much of the thinking needed for UW 

campaign development.

Our nation requires a special warfare capability. That capability 

requires intellectual investment in evolving our understanding of the 

legal environment and how that environment impacts US policy options 

and potential UW campaigns. As the legal analysis demonstrates, there 

will be some cases in which both the person’s status as well as US government and international policy toward a resistance movement and its 

activities will be vague at best. This finding reinforces that strategists 

and practitioners must anticipate ambiguity in UW campaigns. Readers 

are encouraged read, analyze, debate, challenge, and consider how this 

analysis could impact Special Forces’ ability to perform its UW mission.

COL Frank Sanders

vii

TABLE OF CONTENTS

DISCLAIMER........................................................................................ iv

ACKNOWLEDGMENTS ...................................................................... iv

LETTER OF INTRODUCTION ........................................................... v

CHAPTER 1. INTRODUCTION ..........................................................1

Purpose and Structure for Analysis...................................................3

Interpreting the Resistance Continuum............................................7

Summary of Major Concepts............................................................13

CHAPTER 2. OVERVIEW OF SOURCES OF LAW.......................... 17

Law of Armed Conflict.....................................................................19

The Geneva Conventions .................................................................19

Common Article 2 and Common Article 3.................................19

Additional Protocols.....................................................................20

CHAPTER 3. NONVIOLENT RESISTANCE....................................23

The Use of Legal Processes as a Form of Resistance......................26

Example 1: Use of Existing Legal Processes to Resist the 

Government ........................................................................27

Example 2: Interference with the Legitimate Exercise of 

Political Processes...............................................................28

The Status of the Resistance ........................................................29

The Status of US Personnel who Support 

Nonviolent Resistance.........................................................31

Resistance Through Illegal Political Acts........................................36

The Status of the Nonviolent Resistance.....................................40

The Status of US Personnel Assisting Nonviolent Resistance ....42

CHAPTER 4. REBELLION................................................................. 47

The Status of the Resistance ............................................................49

The Status of the Standing Government.........................................51

The Status of US Personnel..............................................................52

Rebellion in Context: Honduras, Brazil, and Mali.........................56

CHAPTER 5. INSURGENCY ..............................................................65

Factors that Determine an Insurgency ............................................68

Recognition of Insurgency and the Status of Parties .....................70

No Impact on State Authority to Suppress Insurgency ..............71

The Impact of International Humanitarian Law on the Status of 

Persons in Insurgency...............................................................72

The Status of Insurgents ..............................................................72

The Status of Military Personnel Assisting Insurgents—

Unconventional Warfare ....................................................74
viii

Table of Contents

The Status of the Standing Government.....................................76

The Status of Military Personnel Assisting the Standing 

Government—Counterinsurgency ....................................77

The Status of Individuals Captured by Insurgents.....................77

The Status of the Kosovo Protection Forces................................78

CHAPTER 6. BELLIGERENCY..........................................................87

The Implications for Participants....................................................96

The Status of Standing Government Personnel and Foreign 

Troops Supporting Them.........................................................97

The Belligerents............................................................................97

Protections for those Supporting Belligerents............................98

Belligerency in Context: Iraqi Kurdistan ...................................... 101

The Role of the United Nations System ....................................103

CHAPTER 7. DOMESTIC LEGAL CONSTRAINTS ...................... 111

The War Powers Resolution............................................................ 114

The War Powers Resolution and Presidential Compliance ...... 117

The Authorization for Use of Military Force ............................ 119

Other Authorizing Statutes: Title 10 and Title 50 ........................120

Covert Versus Clandestine..........................................................122

Traditional Military Activities and Routine Support................126

Current Issues .................................................................................129

Covert Action in Syria.................................................................132

APPENDICES..................................................................................... 137

APPENDIX A: Acronyms................................................................139

APPENDIX B: Glossary .................................................................. 141

APPENDIX C: Background on International Law and the Law 

of Armed Conflict...................................................................145

Sources of Law ............................................................................145

Custom, Treaties, Domestic Law, and Judicial Decisions .........145

Terminology: The Relationship Between Law of War, Law of 

Armed Conflict, International Humanitarian Law, and 

International Human Rights Law.................................... 147

Principles of Law of Armed Conflict .........................................149

Military Necessity ........................................................................150

Distinction ...................................................................................150

Proportionality ............................................................................150

Humanity.....................................................................................150

The Geneva Conventions ...............................................................151

Additional Protocols I and II......................................................152

Objections.................................................................................... 153

Additional Protocol III ...............................................................154
Table of Contents

ix

Common Articles........................................................................155

Common Article 2—International Armed Conflicts ...............156

Common Article 3—Noninternational Armed Conflicts........156

Conflict Status.............................................................................160

Individual Status on the Battlefield...............................................162

Lawful Combatants/Prisoners of War.......................................162

Retainees .....................................................................................164

Members of Other Militias and Volunteer Corps .....................166

Persons Accompanying But Not Members of the 

Armed Forces....................................................................166

Levée en Masse .........................................................................167

Civilians.......................................................................................167

Other Protected Persons ............................................................168

Direct Participation in Hostilities..................................................168

Significance on Status ................................................................168

International Committee of the Red Cross Criteria for 

Determining Direct Participation.................................... 171

Unlawful Combatants..................................................................... 174

Enemy Combatants and Unlawful Enemy Combatants............ 175

Detainees..................................................................................... 175

BIBLIOGRAPHY ............................................................................... 181

Legal Sources..............................................................................183

US Cases ...................................................................................... 183

US Constitution........................................................................... 183

US Statutes................................................................................... 183

Legislative Authorities................................................................185

Executive Authorities..................................................................185

International Cases.....................................................................185

Foreign Cases ..............................................................................186

Treaties ........................................................................................186

Other Sources .............................................................................187

INDEX ................................................................................................ 199
x

LIST OF ILLUSTRATIONS

Figure 1-1. Continuum of categories of resistance...............................6

Figure 1-2. Resistance movements on the continuum .........................7

Figure 2-1. Overview of application of the Geneva Conventions 

on the basis of type of conflict............................................ 21

Figure 7-1. Distinctions between covert and clandestine and 

related activities.................................................................129

Figure A-1. Red Crescent neutrality symbol adopted in 

Additional Protocol III...................................................... 155

Figure A-2. Overview of application of the Geneva Conventions 

on the basis of type of conflict.......................................... 161
CHAPTER 1.

INTRODUCTION

Chapter 1. Introduction

3

PURPOSE AND STRUCTURE FOR ANALYSIS

The purpose of this study is to provide a synthesis of the prevailing issues and analysis concerning the legal status of persons in resistance. This document refers broadly to resistance and those involved 

in it, meaning those individuals comprising the resistance element, 

US personnel supporting or countering the resistance, and the standing government. In alignment with this focus, the document explores 

the status of personnel particularly in foreign internal defense (FID), 

counterinsurgency (COIN), and unconventional warfare (UW) operations. When originally conceived, this manuscript was to be an updated 

volume of the 1961 American University Special Operations Research 

Office (SORO) study, The Legal Status of Participants in Unconventional 

Warfare. The National Security Analysis Department (NSAD) of the 

Johns Hopkins University Applied Physics Laboratory (JHU/APL) was 

asked by the US Army Special Operations Command (USASOC), G-3X 

Special Programs Division, to review and analyze the historical use of 

international law, the law of land warfare, and applicable international 

conventions and update the SORO study accordingly and also include 

unique legal considerations regarding the status of irregular forces. 

Because many aspects of both law and policy have changed since the 

1961 publication, particularly within the context of US involvement in 

Afghanistan and Iraq, USASOC requested that this manuscript be a 

new document to account for these changes, highlight key legal questions, and position these questions within the context of hypothetical 

scenarios and historical examples.

The study is intended to provide for nonlawyers an assessment of 

current law and policy regarding the status of persons in resistance 

and to identify issues where the interpretation or application of the law 

is unclear or unsettled. A key objective of this work is to present the 

reader with an understanding of the existing thresholds where status 

can change on the basis of the nature of the activity and the category 

of the conflict. It seeks to impart an understanding of the limitations of 

these thresholds as applied to operationally relevant examples within 

FID, COIN, and UW. Complex internal hostilities often involving 

armed and organized nonstate actors are replacing traditional interstate armed conflict. The constituent activities of irregular warfare 

(IW) may be used to counter or influence these hostilities, which may 

not have an obvious start or finish and often lack clarity regarding the 

status of those involved. The actions are unlikely to fall neatly within 

prevailing definitions of armed conflict—in other words, international 
4

Legal Implications of the Status of Persons in Resistance

or noninternational (internal)a conflicts recognized within international law—yet they exhibit many similarities. There are only a few 

meaningful distinctions in the law regarding the status of actors in 

activities outside of declared war. Conflict paradigms are changing, 

and existing legal instruments, such as the Hague Conventions of 1907 

and the Geneva Conventions of 1949, do not adequately account for 

these changes—for example, nonstate groups engaging in prolonged 

campaigns of terrorism or states seeking to address these threats outside of traditional warfare. As such, an adaptive framework for applying existing law to these scenarios and understanding the limitations 

of that adaptation is necessary. For the purposes of this document, the 

framework for exploring these issues is resistance and the categories of 

hostilities that fall within it.

As used here, the term resistance refers generally to nonviolent or 

armed opposition to a standing government and all actors that may be 

components thereof. The characteristics of a resistance and the associated status of persons in resistance can change over time depending 

on the organization of resistance groups and the intensity and duration of resistance activities. The examination of persons in resistance is 

done within the frame of a continuum. The continuum marks known 

and debated thresholds that characterize changes in the legal classification of a resistance and the status of those involved. The continuum 

categorizes resistance on the basis of identifiable thresholds between 

nonviolent methods (use of legal processes and illegal political acts, 

e.g., civil disobedience) and armed forms of resistance, namely rebellion, insurgency, and belligerency.

These categories were selected because they address obvious phases 

that occur within a resistance and because they most closely align with 

international legal thresholds, providing a framework for analyzing 

both distinct cases of movement across the continuum and those that 

are less clearly within a certain category of activity. Furthermore, this 

spectrum accounts for the escalation in intensity of more recent resistance movements where elements of IW have been used as tools to compete for government legitimacy. It presents an opportunity to explain 

the difference in terms from a legal perspective and what they mean 

for US intervention.

a This document generally uses the word internal to refer to conflicts within the 

boundaries of a state. However, there are circumstances in which conflicts cross the 

boundaries of numerous states but are not necessarily international conflicts. An example 

is the US characterization of the conflict with Al Qaeda as noninternational (i.e., internal 

from a legal perspective, even though the adversary is a non-state actor composed of individuals situated in various states). As Justice Stevens wrote in Hamdan v. Rumsfeld, 548 U.S. 

557, 630 (2006), “the term ‘conflict not of an international character’ is used here in contradistinction to a conflict between nations.”
Chapter 1. Introduction

5

Note that the colloquial understanding of the terms used in this 

study may not have the same meaning as their legal definitions. For 

example, the American Civil War is generally referred to as a rebellion, and the motive of the action was to secede from the Union. In 

this sense, all the categories of resistance discussed here are rebellions 

or rebellious acts because they share the motive rejecting the authority 

and legitimacy of a standing government. However, the terms are being 

used to identify the stages of resistance against a state, of which rebellion 

is just one category. While it is indeed a rebellion in the colloquial sense, 

through the framework of the continuum and in traditional international law, the Civil War is a classic example of belligerency because of 

the intensity and the duration of the hostilities. As another example, 

a recent New York Times interactive feature on Syria uses the terms conflict, rebellion, resistance, and insurgency seemingly interchangeably, or at 

least generically, to refer to the violence that has overtaken that country since peaceful protests began in 2011.1

 Used in this way, a general 

meaning attaches to the terms that imply armed opposition, which 

may or may not be accurate when used to describe other examples 

of hostilities. From a reporter’s perspective, using these terms interchangeably may be inconsequential to the story, but it is exactly the 

delineation between these terms that is legally relevant to the status of 

persons in resistance.

A portion of the subtext in the same interactive feature in the 

New York Times indicates that in one attack, government military were 

killed by “armed gangs.”2

 This terminology highlights the political 

nature of the characterization of resistance. The use of the phrase is 

almost certainly deliberate, particularly because it was issued by the 

standing government. The government’s reference to a group as an 

“armed gang” is an attempt to characterize those challenging its legitimacy as criminals. Criminals are not recognized by third parties as 

legitimate actors, nor are they afforded legal protections outside of 

domestic criminal law and international human rights law. To describe 

the actors as domestic criminals is to describe the hostilities as isolated 

violent acts, something that falls short of an insurgency (a noninternational armed conflict, or NIAC). It is an attempt to communicate to 

the international community that the government has not yielded any 

power or legitimacy.

This example serves to underscore an important point. The status 

of individuals and the categories of resistance are not separable; the latter determines the former. How a state perceives the status of a group 

and their activities dictates the nature of its interactions with the group. 

The general thresholds for different categories of resistance and an 

overview of the accompanying legal status can be found in Figure 1-1.
6

Legal Implications of the Status of Persons in Resistance

Characteristics: Recognition of 

an insurgency is based on facts 

and political factors. In general, 

the  ghting is more sustained 

and intense and cannot be 

easily suppressed by the 

government. Other elements 

include increased levels of the 

insurgent group’s organization 

and territorial control.

Third-Party Involvement: 

Support of insurgents 

violates HN sovereignty 

and contravenes norms 

of noninterference, with 

some exceptions. Support 

to HN via COIN permissible 

with consent. States may 

engage with insurgents to 

protect property, commercial 

interests, nationals.

Insurgency

Characteristics: Individuals 

or groups use legal processes 

to resist standing government, 

e.g., social media messaging, 

peaceful demonstration, 

canvasing polls.

Use of Legal Processes for Political Advantage

Corresponding Legal Status:

Individuals are subject to HN law. 

Indigenous status would be as a 

citizen/resident. UW status is as a 

tourist subject to HN jurisdiction. 

FID status would depend on any 

applicable SOFA.*

Characteristics: Individuals 

or groups resorting to illegal 

political acts to resist standing 

government, e.g., refusal to 

comply with certain laws 

(civil disobedience) or other 

disruptive, nonviolent acts.

Illegal Political Acts

Corresponding Legal Status:

Individuals are subject to HN civil 

and criminal law. Indigenous 

status would be as a citizen/

resident. UW status is as a tourist 

subject to HN jurisdiction. FID 

status depends on any applicable 

SOFA.* Diplomatic channels can 

be used to negotiate jurisdiction 

or release.

Characteristics: Short-term, 

isolated, violent engagements 

of low intensity by a group 

(e.g., riots); law enforcement 

mechanisms are able to 

suppress the violence; it 

remains a domestic matter. 

Rebellion

Third-Party Involvement: 

Support of rebels violates HN 

sovereignty and contravenes 

international norms of 

noninterference, with some 

exceptions. Support to HN by 

invitation or with consent is 

permissible. 

Third-Party Involvement: 

Foreign government 

support unlawful unless HN 

consents; discovery of the 

presence of personnel could 

prompt diplomatic problems, 

charges of espionage. 

Third-Party Involvement: 

Foreign support to domestic 

criminals unlawful unless 

HN consents; discovery 

of support could prompt 

diplomatic tension, 

accusations of aggression, 

charges of espionage.

Corresponding Legal Status:

Rebels are subject to domestic 

criminal law. UW status is as a 

tourist subject to HN jurisdiction. 

FID stand alongside the HN 

government under applicable 

SOFA.* Diplomatic channels may 

be used to negotiate jurisdiction or 

release. NOT yet an armed con ict 

so IHL does not apply.

Corresponding Legal Status:

As a NIAC, the IHL protections of 

Common Article 3, and potentially 

Additional Protocol II, apply. 

Parties can agree to apply more 

protections but not fewer. 

Characteristics: (1) A general 

as opposed to local armed 

con ict, (2) belligerents 

administer a substantial portion 

of territory, (3) belligerents 

follow laws of war and use 

a command system, and (4) 

circumstances require states to 

de ne their positions in relation 

to the con ict.

Third-Party Involvement: 

Recognition of a resistance 

group as a de facto state 

imposes a duty of neutrality 

on third-party states. Third 

parties may support one side 

or the other, but doing so 

constitutes an act of war. 

Belligerency

Corresponding Legal Status: 

LOAC applies. The resistance 

group is deemed a de facto state 

if the host nation recognizes the 

resistance as a belligerency, and 

its forces receive combatant/

POW status. The resistance group 

and HN and allies are bound to 

apply LOAC, the customary law of 

international armed con ict.

Increasing level of intensity, duration, and organization

Nonviolent Resistance Armed Resistance

COIN–Counterinsurgency

HN–Host nation

FID–Foreign internal defense

IHL–International humanitarian law 

LOAC–Law of armed con ict

NIAC–Noninternational armed con ict

POW–Prisoner of war

SOFA–Status of forces agreement

UW–Unconventional warfare

* SOFA or other international 

agreement.

Figure 1-1. Continuum of categories of resistance.
Chapter 1. Introduction

7

Figure 1-1 represents a high-level assessment of the general characteristics of different categories of resistance. This graphic will be 

used as a reference point throughout the document to help place the 

analysis of a given set of circumstances on the resistance continuum. 

Each category of resistance and the status of persons acting within 

the particular category are discussed in detail in subsequent sections. 

The full spectrum of legal protections runs from none under international humanitarian law (IHL) during peacetime to full prisoner of 

war (POW) status and protections of international humanitarian law 

during international armed conflict (IAC).

Figure  1-2 illustrates the examples of resistance movements discussed throughout the study and where they reside on the resistance 

continuum. These historical examples were selected to provide context 

for the discussion of each category of resistance. In some instances, 

hypothetical scenarios based on actual events are used to help illustrate specific points of analysis. These scenarios are indicated with a 

light gray circle on the continuum in Figure 1-2.

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

American

Civil War

Iraqi Kurdistan

(early 1990s)

Kosovo Lib.

Army (KLA)

(1998)

Mali

(2006–2009)

Mexico (1929)

Brazil (2013)

Honduras

(post-2009 coup)

Antiapartheid

(S. Africa)

Civil rights

movement (US) 

Civil rights movement (US)

Civil society

organizations

(Zimbabwe)

Venezuela

(detained

American)

Solidarity (Poland)

Hypothetical based on real event

Actual event

Figure 1-2. Resistance movements on the continuum.

INTERPRETING THE RESISTANCE CONTINUUM

The continuum is a useful tool for compartmentalizing categories 

of resistance that defy easy categorization, particularly as they move 

toward rebellion and insurgency because it is difficult to interpret relevant facts on the ground and to determine when hostilities meet the 

threshold of an armed conflict. Therefore, while it provides an important framework for analysis, it must not be interpreted as oversimplifying the task. As indicated in Figure 1-1, part of what determines the 

category in which a resistance movement fits is the increase in the 
8

Legal Implications of the Status of Persons in Resistance

intensity, duration, and organization of the parties.b These factors are 

evaluated in each category within the context of armed resistance and 

are discussed throughout this document. They are the factors that 

determine the existence of a noninternational (i.e., internal) armed 

conflict and, therefore, the application of IHL.

The factors comprise a two-part test: (1) qualified violence (based 

on intensity, duration, and scope); and (2) identifiable, organized 

parties.3 This test comes from international case law interpreting the 

language and intent of Additional Protocol  II’s article defining the 

treaty’s scope. Note that its threshold is higher than that of Common 

Article 3 of the Geneva Conventions, which requires only that the conflict be in the territory of a High Contracting Party and be “not of 

an international character.” Armed conflict within the scope of Additional Protocol II of the Geneva Conventions has a higher threshold, 

where the armed group or groups opposing the government must 

“under responsible command, exercise such control over a part of 

[government] territory as to enable them to carry out sustained and 

concerted military operations” and to implement this protocol.4, 5, c It 

specifically states that “this Protocol shall not apply to situations of 

internal disturbances and tensions, such as riots, isolated and sporadic 

acts of violence and other acts of a similar nature, as not being armed 

conflicts.”6, 7 On the basis of this definition, a standard emerges in case 

law, which has interpreted the threshold as having more flexibility for 

broader application of IHL. Some scholars believe that this flexibility 

is necessary and that the determination of a NIAC for purposes of IHL 

application should be available to short-term and even low-intensity 

confrontations.d

There is tension between the threshold as defined in Protocol II and 

the interpretation by international tribunals of whether that threshold 

is met through the two-part test identified above. IHL does not apply 

to riots or short-lived rebellions, even if there is armed engagement 

b A frequent indicator of increased intensity, duration, and organization is the level 

of territorial control exercised by the resistance. Control by the resistance over an increasing amount of territory is often instrumental in raising the level of intensity, the duration 

of the hostilities, and the degree of organization of the group.

c The United States is not party to Additional Protocol II, so normally only Common 

Article 3 protections apply, for instance to the conflict against Al Qaeda. Additional Protocol II applies if its key provisions are customary international law, meaning they apply to 

all states whether or not they are party to the protocol. The proposition that Additional 

Protocol II provisions are customary international law is a point of debate.

d Dr. Hoerauf8

 argues that because IHL principles are designed to alleviate suffering 

in war, the bar triggering their application should not be set high, and that Protocol II’s 

definition of armed conflict is so restrictive that “it would exclude most revolutions and 

rebellions, and would probably not operate in civil war until the rebels were well established and had set up some form of de facto government.”9
Chapter 1. Introduction

9

between government forces and the resistance. However, in Abella v. 

Argentina,

10 which involved a single attack by forty-two people on Argentine military barracks lasting thirty hours, the Inter-American Commission on Human Rights determined that the attack met the threshold of 

intensity and organization to constitute a NIAC, triggering limited IHL 

protections.11 In that case, the individuals used their vehicles to storm 

a barracks, and then proceed to enter it and take over a portion of the 

stockade. Gunfire and incendiary bombs were used. Twenty-nine of the 

attackers and several agents of the Argentine government died. The 

commission determined that the level of planning and execution of the 

armed attack against a military objective, requiring a military response 

to subdue the attackers, exceeded the threshold of what would otherwise be an internal rebellious act. Here, the commission did not find 

the short duration problematic, as it concluded that the intensity and 

organization of the attack compensated for its brevity.e In the context 

of the continuum, the commission’s decision positions the attackers 

as insurgents.

Nonetheless, it could be argued that a single encounter, however 

intense, is more properly characterized as an “isolated and sporadic” 

act of violence, not an armed conflict. The resistance in Abella is in the 

same category as the Kosovo Liberation Army (KLA), which by comparison had uniformed leaders that met with international representatives 

and engaged in hostilities that involved the resistance taking control of 

entire villages.f The point of the example is to illustrate that the line 

between a violent internal disturbance (e.g., a rebellion) and the lowest 

level of an armed conflict may be blurry. The analysis as undertaken in 

this document does not seek to reconcile these difficulties but, rather, 

to indicate where they exist and to reveal the limits of these thresholds. 

These difficulties matter because the category of resistance dictates the 

status of those acting within it.

Understanding the status of persons in resistance, whether members of a resistance or US personnel supporting or countering a resistance, is significant for several reasons. There is, of course, the baseline 

need to understand the rights and protections, if any, owed to individuals in certain circumstances. Attached to status is a legal paradigm 

determined by the nature of the activities, which dictates how individuals must be treated and the acts in which they can lawfully engage. The 

determination of legal relationships within the context of resistance is 

e Hoerauf asserts that “as rather flexible case law of international courts and commissions indicates, one over-fulfilled element of the two-part test . . . can compensate for 

under-fulfillment of the other.”12

f See Chapter 5. Insurgency for a discussion of the KLA in the context of the International Criminal Tribunal for the Former Yugoslavia (ICTY) case Prosecutor v. Limaj.
10

Legal Implications of the Status of Persons in Resistance

not a simple matter. For one, there are differing interpretations of traditional rules of international law. More significantly, the decision to 

engage in activities such as FID, COIN, or UW is highly dependent on 

facts and based on international events and domestic concerns against 

which foreign policy decisions must be made. The law informs these 

decisions but is likely not the dispositive factor on which a decision 

turns in practice.

The recognition of persons in resistance by a state is more a policy 

decision than a legal one. The decision to recognize a resistance, or to 

categorize a group as an insurgency for example, carries with it constraints on how the state must subsequently interact with that group. It 

is a policy determination guided by discernible rules of law given the 

circumstances on the ground. There is always a risk when engaging 

the military to achieve foreign policy objectives, whether to the lives of 

personnel, to strategic objectives, or to diplomatic relations. Determining the legal status of individuals, or at least the elements involved in 

making this determination, means understanding one aspect of risk 

related to achieving strategic policy goals through the commitment of 

military resources.

As the Abella example demonstrates, whether the international 

community agrees with a state’s determination is something that comes 

after the fact through tribunals and commissions but also as expressed 

through diplomatic interactions. A violation of international law does 

not feature the same immediate and binding sanctions that characterize domestic law and procedure. Instead, a violation of international 

law may carry consequences such as the engagement of state responsibility, official disapproval of the action by the United Nations (UN) 

Security Council or the UN General Assembly, damage to the United 

States’ reputation and image abroad, and reciprocal nonobservance 

of international law obligations to the United States, short of armed 

actions, by other states. There is a fundamental interplay of law and 

policy in these determinations that is unavoidable.

In each phase of the resistance continuum, there are examples of 

actions that may influence how a resistance is categorized. For example, a UN Security Council resolution serves as a clear indicator that 

an armed conflict exists and is seen as an endorsement specifying 

international approval for controversial action. It may serve as an external marker that UN member states recognize a certain group as an 

insurgency. In the recent situation in Libya, the March  2011 resolution establishing a no-fly zone and allowing “all necessary measures” to 

protect civilians stood as a powerful indicator not just of international 

support for humanitarian action but also of recognition of an armed 

conflict.13 At the point that outside states were involved militarily in the 
Chapter 1. Introduction

11

protection of civilians, even though the resolution did not permit foreign occupation forces on Libyan territory, it arguably became an IAC. 

At the same time, there was also a NIAC between the Qadhafi regime 

and the opposition forces.

In the example of Libya, ascertaining the status of the opposition 

forces is linked to the intensity, duration, and geographical scope of 

the hostilities as well as the organization of the nonstate group. It is 

not disputed that the violence in Libya exceeded the threshold necessary to constitute an armed conflict. However, establishing that there 

is an armed conflict is only the first step in assessing status. In NIACs, 

the status of combatant does not exist. The rebels would be considered 

belligerents, but belligerents are not afforded the same level of protections that lawful combatants carry. In IACs, the distinction is between 

combatants and civilians. Combatants in IACs are sometimes referred 

to as privileged belligerents because POW status attaches to them. 

Libya is an example of a type of armed conflict in which the status of 

resistance forces changed with the transition from pre-North Atlantic 

Treaty Organization (NATO) involvement to NATO involvement. Once 

NATO became involved, the conflict was “internationalized,” and the 

rebels, as they are colloquially referred to, became belligerents entitled to law of armed conflict (LOAC) protections. Libya exemplifies 

how the status of resistance forces and the type of armed conflict can 

change when outside states become parties to the conflict. When the 

armed conflict changes from a NIAC to an IAC, the resistance movement gains the protections of LOAC. Similarly, a former NIAC will 

revert back when the outside states exit the conflict and the protections for participants revert back to Common Article 3 and potentially 

Additional Protocol II. The law is not fully settled on when and how a 

NIAC becomes internationalized into an IAC, but significant indicators of internationalization include operational support and assistance 

by outside states to the resistance group, as well as operational control by the outside states over the resistance group. Regarding Libya, 

commentators disagree on whether the introduction of NATO forces 

into the Libyan conflict internationalized the NIAC between the resistance and Qadhafi’s forces or whether it caused two parallel conflicts 

to occur, a NIAC between the resistance and Qadhafi forces and an 
12

Legal Implications of the Status of Persons in Resistance

IAC between Qadhafi forces and the participating NATO states.g When 

NATO withdrew, the conflict became internal once again, and the 

accompanying status also changed to unprivileged belligerents. This 

type of analysis must be done to assess the status of personnel in any 

example of resistance.

Libya is but one example of resistance that lends itself to analysis 

within this framework. El Salvador and Lebanon in the 1980s, Afghanistan, and recent events in Syria illustrate the complexity of the question 

of status and understanding resistance, as well as the policy decisions 

related to US intervention. These examples present critical questions 

relative to IW: What is the status of persons supporting a resistance outside of an armed conflict? What if that individual is, by design, not distinguishable as a member of the military, such as a US military member 

conducting UW? This study seeks to address these questions. The subsequent chapters are organized to describe each category and accompanying status and analyze how the resistance component and COIN, 

FID, and UW activities can be interpreted. Where appropriate, crossreferences to sections in the appendices are included to provide a basic 

understanding of fundamental principles that are referenced throughout this study, specifically treaty-based IHL and customary IHL.

g Some commentators argue for a “global” approach, contending that a NIAC is 

transformed into an IAC by foreign military intervention when the foreign military begins 

operations against the host nation or the resistance movement acts on behalf of the foreign military. Importantly, the result under the global approach is that the entire conflict 

becomes an IAC and all participants in it gain full IHL protections. At the other end of the 

spectrum is a “mixed” or “parallel” approach in which the involvement of a foreign military introduces another conflict, namely an IAC between the host nation and the outside 

state. The NIAC between the resistance and the host nation remains, and the two conflicts coexist, meaning the participants in the NIAC receive reduced IHL protections and 

the participants in the IAC receive full IHL protections. Between these two approaches 

lies a moderate stance. Advocates of this moderate approach accept that a NIAC can be 

fully converted into an IAC so that full IHL protections apply to all participants, but they 

require the relationship between the resistance and the foreign military to be more robust 

than proponents of the global approach require. Specifically, they require that the outside 

state exercise “overall control” over the resistance movement, comprising two steps: (1) the 

outside state provides financial and training assistance, equipment, and/or operational 

support; and (2) the outside state participates in the organization, coordination, or planning of military operations. Only when actions by a resistance movement can be attributed 

to the outside state will this group of commentators consider the NIAC to be fully internationalized. And there is yet another school of thought: that, like the overall control requirement, there must be a greater connection between the resistance and the outside state than 

mere involvement by the outside state in the conflict, but that connection can be satisfied 

by Article 4A(2) of the Third Geneva Convention. International tribunals have not been 

consistent in which test they use, and so the state of international law remains undecided 

on this issue, but these are the tests a post hoc adjudication would apply.14,15
Chapter 1. Introduction

13

SUMMARY OF MAJOR CONCEPTS

• The legal status of persons in resistance depends on the nature of 

the activities in which they are engaged and where those activities 

fall on the resistance continuum. There are existing thresholds 

where status can change on the basis of the nature of the activities 

and the category of the resistance.

• The status of persons and the categories of resistance are not 

separable; the latter determines the former. The status of 

US personnel engaged in activities abroad depends on who they 

are supporting (the resistance or the standing government) 

and under what circumstances they are there. For example, 

the status of US personnel carrying out a clandestine mission 

during peacetime differs from their status when engaged in 

acknowledged operations during an armed conflict. This is true 

despite the fact that, in both situations, they are acting under the 

authority of the US military.

• The categories of resistance discussed in this study range 

from nonviolent resistance (use of legal processes and illegal, 

nonviolent acts), rebellion, insurgency, to belligerency.

• Not all resistance movements are armed conflicts, even if they 

are characterized by violence. Insurgency is the first category of 

resistance that meets the threshold of an armed conflict.

• When individuals or groups engage in resistance against the 

standing government, domestic or international law (or a 

combination) will govern how the parties on either side may treat 

their adversaries. Which body of law applies and the extent of its 

protections depend on the category of resistance.

• Domestic law will control when the resistance constitutes 

nonviolent strategies or rebellion, meaning that those in the 

resistance receive only the protections that exist under domestic 

criminal law and the host nation’s human rights commitments. 

Protections affiliated with armed conflict, such as Geneva 

Conventions protections and POW status do not apply. US military 

personnel authorized to support a resistance through UW will 

not receive these protections even though they are acting on 

behalf of the US military. These categories are not conflicts, 

and US  military personnel are subject to the domestic laws of 

the country in which they are operating unless a status of forces 

agreement (SOFA) provides otherwise.
14

Legal Implications of the Status of Persons in Resistance

• Rebellions feature violent tactics but unorganized strategies 

that the host nation is able to suppress through normal law 

enforcement methods. Those in the resistance do not pose a 

significant threat to the legitimacy or existence of the standing 

government.

• Insurgencies feature violent tactics and sophisticated strategies 

carried out by an organized group but through isolated and 

sporadic operations. They are harder for the host nation to 

suppress and pose an earnest threat to the legitimacy and existence 

of the standing government. International law applies when the 

resistance reaches insurgency because insurgencies meet the 

threshold of a NIAC. Customary IHL for NIACs will apply, in 

addition to Common Article 3 of the Geneva Conventions and 

potentially Additional Protocol II, if certain criteria are met.

• International humanitarian law recognizes two types of armed 

conflict: IAC and NIAC. IACs are those conflicts that occur 

between two or more states; NIACs occur between a state and a 

nonstate group, or between two or more nonstate groups.

• Armed conflicts are defined in IHL by the Geneva Conventions 

and their Additional Protocols. IACs are governed by Common 

Article 2 of the Conventions, which states that any declared war 

or any other armed conflict occurring between two states that 

are parties to the Conventions, even if one does not recognize 

the state of the conflict, constitutes an IAC. The intensity of the 

fighting does not matter. International jurisprudence considers 

any resort to armed force between two states an IAC. Additional 

Protocol I extends IACs to conflicts in which peoples are fighting 

against colonial domination, alien occupation, or a racist regime 

in the exercise of their right to self-determination (wars of 

national liberation).

• For NIACs, a distinction is made in IHL between Common 

Article  3 NIACs and those that come within the meaning of 

Additional Protocol  II. Common Article  3 provides a range of 

basic humanitarian norms to protect participants in and victims 

of NIACs. Additional Protocol II expands and develops some of 

the humane treatment and judicial guarantees mentioned only 

briefly in Common Article 3, but it applies to a more narrow set 

of conflicts meeting certain criteria.
Chapter 1. Introduction

15

• Common Article  3 NIACs are conflicts that are not of an 

international character and occur within the territory of a party 

to the Geneva Conventions. Common Article 3 applies to conflicts 

involving a state and a nonstate actor, or two or more nonstate 

actors. In order to distinguish Common Article 3 conflicts from 

lesser levels of violence (e.g., riots), two criteria must be met. The 

nonstate actor or actors must be parties to the conflict, meaning 

that they have organized armed forces under a command 

structure, and the hostilities must be protracted and reach a 

minimum level of intensity, based on the facts on the ground.

• NIACs within the meaning of Additional Protocol II must meet 

a higher threshold. Additional Protocol II was created to develop 

and supplement Common Article 3, and it applies only to conflicts 

between a state and a nonstate actor, but not to conflicts between 

only nonstate actors. NIACs under Additional Protocol II occur 

when the Common Article 3 criteria are met but the armed forces 

of a nonstate actor are organized enough to exercise control 

over a part of the state’s territory “as to enable them to carry out 

sustained and concerted military operations and to implement 

the Protocol” under responsible command.

• Belligerencies feature conflict of a general, as opposed to a local, 

character, where the belligerents administer a substantial portion 

of territory as well as follow the law of war under a responsible 

command system. The circumstances of belligerency require 

states to define their positions in relation to the conflict. The 

resistance is treated as a de facto state, making the conflict an 

IAC. An example is the American Civil War, during which the 

Confederacy governed and administered a substantial territory 

as though it were a separate country and waged large-scale armed 

campaigns under a hierarchical responsible command.

• IHL will apply in full when the resistance reaches the 

level of belligerency because the doctrine of belligerency 

internationalizes the conflict. This means that all the Geneva 

Conventions, Additional Protocol  I, and all of customary IHL 

apply, including POW status.

• Despite seemingly objective criteria in international law and 

jurisprudence, in practice the recognition of persons in resistance 

by a state is more a policy decision than a legal one. It is a 

determination guided by law and a country’s strategic objectives 

given the circumstances on the ground.
16

Legal Implications of the Status of Persons in Resistance

• International law and US law are separate for purposes of 

authorizing military action. Authorization under US law will not 

constitute authorization under international law, and vice versa.

• There is interplay between international and domestic law, but 

one is not an adequate stand-in for the other. US law imposes its 

own set of legal requirements on decisions to commit US military 

personnel abroad. For instance, the War Powers Resolution creates 

a deadline for the withdrawal of troops from actual or imminent 

hostilities unless Congress extends that deadline or independently 

authorizes that deployment. A UN Security Council resolution 

authorizing the use of force in a foreign country may indicate 

that military intervention is internationally lawful, but it does not 

supersede the need for congressional authorization for ongoing 

engagements of the US military overseas.

ENDNOTES

1 Sergio Peçanha, Hwaida Saad, and G. V. Xaquín, “The Evolution of Syria’s Conflict,” 

New  York Times, February 10, 2012, http://www.nytimes.com/interactive/2012/02/10/

world/middleeast/the-evolution-of-syrias-deadly-conflict.html.

2 Ibid.

3 Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (Int’l Crim. Trib. for the Former Yugoslavia October 2, 

1995); Abella v. Argentina, Case 11.1379, Inter-Am. Comm’n H.R., Report No. 55/97, 

OEA/Ser.L./V/II.95, doc.7 rev. ¶ 156 (1997).

4 Protocol Additional to the Geneva Conventions of 1949, and relating to the Protections 

of Victims of Non-International Armed Conflicts (Protocol II) art. 1(1), December 12, 

1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].

5 Protocol II, art. 1(1).

6 Ibid., art. 1(2).

7 Ibid.

8 Dominic Hoerauf, “The Status of Libyan Rebels Under the Laws of War: A Litmus Test 

for the Lawfulness of NATO’s Libyan Engagement Under U.N. Resolution 1973,” Phoenix 

Law Review 6 (2012): 97.

9 Leslie C. Green, The Contemporary Law of Armed Conflict, 3rd Ed. (Huntington, NY: Juris 

Publishing, 2008).

10 Abella v. Argentina, Case 11.137, Inter-Am. C.H.R., Report No. 55/97, OEA/Ser.L./V/

II.95, doc.7 rev. ¶ 156 (1997).

11 Ibid.

12 Hoerauf, “The Status of Libyan Rebels Under the Laws of War,” 96.

13 S.C. Res. 1973, U.N. Doc. S/RES/1973 (March 17, 2011).

14 Katie A. Johnston, “Transformation of Conflict Status in Libya,” Journal of Conflict and 

Security Law 17, no. 1 (2012): 96, 98, 106–107.

15 Kubo Macak and Noam Zamir, “The Applicability of International Humanitarian Law 

to the Conflict in Libya,” International Community Law Review 14 (2012): 413, 419–420.
CHAPTER 2.

OVERVIEW OF SOURCES OF LAW

Chapter 2. Overview of Sources of Law

19

This study frequently refers to various sources of law. A detailed 

discussion of these laws and accompanying policy issues is included in 

Appendix C: Background on International Law and the Law of Armed Conflict. The most commonly referenced terms are briefly defined here to 

facilitate an easier understanding of them in subsequent sections.

LAW OF ARMED CONFLICT

For purposes of this document, the term law of armed conflict (LOAC) 

will be used and includes what is sometimes also referred to as law of 

war (LOW). This usage reflects the transition from the term war to the 

concept of armed conflict. It accounts for current military guidance 

and the field of application of international conventions.

THE GENEVA CONVENTIONS

The Geneva Conventions of 1949 are four international treaties 

that, along with the Additional Protocols of 1977 and 2005 as well as 

other major treaties, serve as the cornerstone of international humanitarian law (IHL).a

Common Article 2 and Common Article 3

Common Articles refer to several articles in the 1949 Geneva Conventions that are identical across all four treaties. They generally relate 

to the scope of the provisions and to the obligations of states under 

the treaties and are considered significant enough to appear in each 

Convention. Common Articles 1, 2, and 3 are identical in content. Others are substantially alike but in different locations within each treaty 

(e.g., Articles 11, 12, and 49). Common Articles 2 and 3 are referred to 

frequently throughout LOAC and deserve a more detailed discussion.

Common Article 2 defines the categories of international armed 

conflict (IAC) to which the Geneva Conventions apply. It states, “the 

present Convention shall apply to all cases of declared war or of any 

other armed conflict which may arise between two or more of the High 

Contracting Parties, even if the state of war is not recognized by one 

a The 1949 Geneva Conventions built on earlier efforts that had resulted in the 

1929 Geneva Conventions. While the history of IHL encompasses more than the creation 

and ratification the Geneva Conventions, the principles embodied in these treaties concerning the treatment of both combatants and noncombatants during armed conflict 

are fundamental to the analysis of LOAC. For a detailed discussion of the history of the 

Geneva Conventions, see Solis.1
20

Legal Implications of the Status of Persons in Resistance

of them. The Convention shall also apply to all cases of partial or total 

occupation of the territory of a High Contracting Party, even if the said 

occupation meets with no armed resistance.”

Common Article  3 requires that basic humanitarian norms be 

given to individuals outside of combat in noninternational (i.e., internal) armed conflicts (NIACs). Common Article 3 does not specify what 

constitutes a NIAC, but it is understood to apply to conflicts “not of 

an international character,” meaning conflicts in which only one of 

the parties is a state, or in which the parties are two or more nonstate 

groups.2 The commentary to the Geneva Conventions indicates that 

Common Article  3 was designed to provide minimal protections to 

nonstate parties in a conflict, and that the “scope of the Article must 

be as wide as possible.”3 However, it does require that a nonstate actor 

(or actors) be parties to the conflict, meaning that they constitute an 

organized armed force under a command structure, and the hostilities 

must be protracted and reach a minimum level of intensity, based on 

the facts on the ground.

Additional Protocols

Protocols I and II are supplemental treaties created to provide added 

protections for victims of war in cases where the Geneva Conventions 

were deemed insufficient. They add to but do not amend the Conventions. Protocol I expands protections for the civilian population in IACs 

and codifies many aspects of customary law that are fundamental to 

LOAC. Protocol  II elaborates on Common Article  3 protections and 

applies to certain types of NIACs.4,b

For armed resistance movements that meet the threshold of insurgency or belligerency, IHL protections apply. Under the Conventions, 

no one involved in an armed conflict is without status, and individual 

status determines the level of protections that apply. Generally speaking, the analysis as it pertains to the type of conflict can be summarized as follows:

• If it is an IAC (i.e., a Common Article 2 conflict), all four Geneva 

Conventions are triggered, as well as, for those states that are 

party to it, Additional Protocol I.

• If it is a NIAC, Common Article  3 applies, and no other part 

of the Conventions apply. Protocol II may apply if the resistance 

controls sufficient territory “to enable it to carry out sustained and 

concerted military operations” under responsible command.5

b Protocol II applies to NIACs such as insurgencies, but it does not apply to 

internal disturbances that do not meet the threshold of a conflict, such as riots and 

demonstrations.
Chapter 2. Overview of Sources of Law

21

Guide to Applicability of the Geneva Conventions (GCs) Protections

Armed 

conflict?

No

Yes

GCs do not apply

GCs apply but which provisions apply 

depends on nature of conflict

What type of 

conflict?

NIAC

IAC

Common Article 3 protections apply; 

Protocol II applies to select NIACs

Common Article 2 triggers the main 

portions of the GCs

If an IAC, 

what type of 

person?

Unprivileged 

belligerent

Privileged 

belligerent

Customary IHL of IACs and Common 

Article 3 apply

All GCs apply and customary IHL of 

IACs that might fill any gaps in the GCs

Figure 2-1. Overview of application of the Geneva Conventions on the basis of 

type of conflict. This chart is adapted from Richard M. Whitaker, ed., Operational 

Law Handbook (Charlottesville, VA: The Judge Advocate General’s School, United 

States Army, 1997), 13-2.c

There is an emerging view that international human rights law 

(IHRL) is applicable in peacetime and wartime, meaning that this 

body of law would apply anywhere on the resistance continuum. IHRL 

is a body of customary and treaty law that was created to accomplish a 

range of goals and purposes related to the quality of human life. For 

this study, they can be summarized as protecting individuals from 

cruel or unfair treatment by their own governments.6 The manner in 

which states treat their citizens was once a purely domestic matter, but 

IHRL was developed to protect individuals and directly regulates how 

states treat citizens and noncitizens within their borders. The traditional US view is that LOAC has a distinct triggering mechanism (e.g., 

armed conflict) and should trump IHRL rather than apply in conjunction with it; the more specific law, IHL, takes over from the more general law, IHRL.7,d Others view LOAC and IHRL as complementary and 

applicable whether on the battlefield or during peacetime.e

c This chart is intended to provide a simplified assessment of the conventions and 

how they apply in internal and IACs and is not a substitute for a more thorough analysis of 

their application in a given situation.

d Note that there is no definitive list of human rights that the United States considers 

fundamental. However, these rights generally include provisions prohibiting cruel, inhuman, and degrading treatment, and the Universal Declaration of Human Rights, Common Article 3 of the Geneva Conventions, and the Restatement (Third) of the Foreign 

Relations Law are common sources.

e For a more complete discussion of the intersection of IHRL, IHL, and LOAC, see 

Appendix C: Background on International Law and the Law of Armed Conflict.
22

Legal Implications of the Status of Persons in Resistance

It is worth noting that it is US military policy that special operations 

forces (SOF) will teach and demonstrate “by word and deed” that protection of human rights is imperative for military success.8

 Of course, 

whether US personnel will be treated by a foreign government or resistance force within the parameters of IHRL cannot be guaranteed. 

However, the expectation, supported by policy, is that US personnel 

will treat all personnel in accordance with at least the fundamental provisions of IHRL, even if it is deemed a nonbinding authority in areas in 

which LOAC applies. Indeed, judge advocates are advised that IHRL is 

a nonbinding authority applicable in every category of conflict, from 

declared war to the scenario involving a “total tourist” (i.e., someone 

abroad who has no affiliation with the armed services or the government) and training of foreign military under the International Military 

and Education Training (IMET) program.9,f

ENDNOTES

1 Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (New York: 

Cambridge University Press, 2012).

2 International Committee of the Red Cross, Commentary on the Additional Protocols to the 

Geneva Conventions, eds. Yves Sandoz, Christophe Swinarski, & Bruno Zimmerman 

(Geneva, Martinus Nijhoff Publishers, 1987), p. 619, ¶ 1351.

3 International Committee of the Red Cross, Commentary, Convention Relative to the 

Treatment of Prisoners of War, ed. Jean Pictet (Geneva: ICRC, 1960), 36.

4 Abella v. Argentina, Case 11.137, Inter-Am. Comm’n H.R., Report No. 55/97, OEA/

Ser.L./V/II.95, doc.7 rev. ¶ 156 (1997).

5 Protocol Additional to the Geneva Conventions of 1949, and relating to the Protections 

of Victims of Non-International Armed Conflicts (Protocol II) art. 1(1), December 12, 

1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].

6 Restatement (Third) of the Foreign Relations Law of the United States § 701 (1987).

7 Richard P. DiMeglio, Sean M. Condron, Owen B. Bishop, Gregory S. Musselman, Todd 

L. Lindquist, Andrew D. Gillman, William J. Johnson, and Daniel E. Stigall, Law of Armed 

Conflict Deskbook (Charlottesville, VA: United States Army Judge Advocate General’s 

Legal Center and School, 2012), 197–198.

8 Rudolph C. Barnes Jr., “Back to the Future: Human Rights and Legitimacy in the Training and Advisory Mission,” Special Warfare 26, no. 1 (2013): 45, citing US Special Operations Command, Training, Human Rights Policy: Directive 350-28cc, May 11, 2005.

9 DiMeglio et al., Law of Armed Conflict Deskbook, 195.

f The diagram in the Deskbook depicts types of conflict and provides examples, 

e.g., declared war (World War II), IAC (Colombia), anarchy (Somalia), coerced conflict 

(Kosovo), agreement between parties (Bosnia), short-term disaster relief, long-term conflict (Korea), and total tourist/IMET. In each category, the diagram indicates fundamental human rights that apply.
CHAPTER 3.

NONVIOLENT RESISTANCE

Chapter 3. Nonviolent Resistance

25

The resistance continuum begins with nonviolent resistance, which 

includes activities that leverage legitimate legal processes to try to gain 

political legitimacy. It also includes, as a next step in the spectrum, 

nonviolent activities that are illegal, such as acts of civil disobedience. 

As used here, nonviolent resistance includes what is sometimes termed 

nonviolent conflict. The category simply refers to legal acts, as well as disruptive techniques such as boycotts, petitions, and civil disobedience, 

to mobilize a population and undermine support for one’s enemy. Nonviolent resistance has been a crucial element in every historically significant struggle in the twentieth century.1

This type of resistance can be effective if it can demonstrate a 

regime’s inability to legitimately govern. It does this by subverting the 

standing government’s power through refusing to yield to the government’s authority by using nonviolent means. It is about “separating 

governments from their means of control,” which, contrary to popular 

notions, may be a technical, restrained matter rather than an aggressive, haphazard attempt at upheaval.2, a

 By demonstrating that the 

government is ineffective, a nonviolent resistance can seize the population’s support and undermine the ruling authority. This element can 

be key to the effectiveness of a nonviolent resistance movement against 

even brutal military and political regimes, “because it [i.e., the nonviolent resistance movement] attacks the most vulnerable characteristic 

of all hierarchical institutions and governments: dependence on the 

governed.”4 Nonviolent methods have been used successfully by many 

resistance movements, including the civil rights movement against segregation and discrimination in the United States, the anti-Communist 

Velvet Revolution in Czechoslovakia in 1989, the boycotts used to force 

South Africa’s apartheid regime to negotiate with opposition groups, 

the student-led Serbian Otpor! movement that led to the overthrow of 

Milosevic, and most recently, the Arab Spring, to name only a few.

Isolated incidents of violence do not transform the nature of a nonviolent resistance into an armed resistance. The key element is that the 

methods endorsed and used by the resistance are nonviolent. The civil 

rights movement in the United States involved numerous riots, as well 

as tragic incidents of murder carried out by police and white supremacist groups, but these acts did not mar the nonviolent legacy of the 

movement. Put another way, the degree of violence used against nonviolent resisters has no bearing on the nature of the resistance and 

where it falls on the resistance continuum. The extent that a resistance 

in this category uses or is associated with more militant elements might 

a Ackerman and Duval note that “while physically confronting an opponent can be 

necessary, the true rhythm of effective nonviolent action is less spontaneous than it is 

intentional . . . it has little to do with shouting slogans and putting flowers in gun barrels.”3
26

Legal Implications of the Status of Persons in Resistance

affect how the resistance is characterized. In the case of the civil rights 

movement, if the Black Panther Party had resorted more systematically 

to violence as part of its efforts, the use of systematic violence by this 

one element arguably could have an affect on whether the entire movement is perceived as nonviolent or would fall under the illegal political acts category. The violence would surpass what could reasonably 

be described as isolated incidents, and even if the core of the resistance used nonviolent methods, the analysis would need to consider 

the extent to which associated elements resorted to violence and the 

impact on the movement overall.

Nonviolent resistance is relevant to status because it is important to 

understand the legal paradigm that will apply to individuals undertaking nonviolent activities that could be used as part of an unconventional 

warfare (UW) campaign to coerce, disrupt, or overthrow a standing 

government. For example, the status of US personnel engaging in nonviolent resistance alongside members of a resistance, potentially out of 

uniform and in a denied area, presents a particular challenge. The analysis starts with the category of resistance. Nonviolent resistance does 

not amount to an armed conflict; in other words, it does not involve violence, which alone is not a sufficient condition but is a prerequisite for 

categories of resistance that would invoke certain international legal 

protections, in particular treaty-based and customary international 

humanitarian law (IHL). Therefore, the legal paradigm that applies to 

nonviolent resistance would be the domestic criminal law of the host 

nation, as well as international human rights law (IHRL).

THE USE OF LEGAL PROCESSES AS A FORM 

OF RESISTANCE

The use of legal processes and institutions to oppose a standing 

government does not immediately raise concerns about the status of 

persons in resistance. If the acts are legal in the state in which they are 

occurring—for example, canvasing or producing and disseminating literature about the resistance—then there is little concern for the status of 

persons in resistance. At this point, their fight for legitimacy is through 

the existing governmental structure, ostensibly upheld if not created 

by the standing government. However, the status of US forces that may 

be supporting or countering these efforts, either openly through legitimate US government initiatives or secretly, is not as straightforward. If 

the host nation acknowledges the activities, then US personnel may face 

few problems if their actions fall within whatever arrangement (e.g., a 

SOFA or other international agreement) the host nation has agreed. 

US  action then would not violate the law as long as the activities by 
Chapter 3. Nonviolent Resistance

27

US personnel did not extend beyond those the host nation agreed to 

permit. In this circumstance, the personnel are supporting the standing government, and that support aligns with government initiatives. 

However, if US personnel are present and supporting efforts clandestinely in order to advise and bolster a resistance, discovery by the host 

nation that members of the US military are present in country and 

supporting an opposition party could provoke a variety of responses, 

including allegations that the activities are espionage, constitute a 

violation of the country’s sovereignty, or amount to an act of aggression. The situation would be compounded if the standing government 

adheres to laws arbitrarily, where acts that are statutorily legal may be 

suddenly suspended as a way for the sitting government to quash the 

ability of a resistance to gain momentum through legitimate processes. 

To provide context in which to analyze the status of individuals in this 

category of nonviolent resistance on the resistance continuum, it is useful to look at some examples.

Example 1: Use of Existing Legal Processes to Resist the 

Government

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

Solidarity (Poland) Hypothetical based on real event

Actual event

A notable example of a successful nonviolent resistance working 

within an existing legal structure is the Polish trade union Solidarity.b

 In 1980, a weakening economy prompted the Polish government to 

increase the price of food. Protests erupted throughout the country, 

but the Lenin (Gdansk) shipyard became the focal point of the resistance. The group demanded, among other things, free trade unions, 

the right to strike, and publication of full economic data so that appropriate future reforms could be debated publicly. Solidarity activists were 

keenly aware that if their actions appeared to shift away from socialism 

they would face Soviet armed intervention. Therefore, the resistance 

had to carefully limit its agenda so as not to appear openly threatening 

to the system.

In December 1981, the government instituted martial law in response 

to additional protests around the country. The resistance was forced 

b For a complete discussion of Solidarity, see Crossett and Newton.5
28

Legal Implications of the Status of Persons in Resistance

underground as a result, with many members being imprisoned but 

still exerting influence over the movement. The resistance considered 

whether to begin an armed campaign or continue the tradition of nonviolent protest. The group decided that a nonviolent approach would 

be most effective, and it persisted to use only nonviolent methods. Martial law was lifted in 1983. By this point, the government had continued 

to weaken, and Solidarity’s leader, Lech Walesa, had been awarded the 

Nobel Peace Prize, bringing world attention to the cause and sustaining momentum for the resistance. By 1988, Solidarity entered negotiations with the government, allowing the resistance group to put forth 

candidates in the upcoming elections. As an outcome of the elections, 

a coalition government was formed and led by Solidarity, with Walesa 

being elected president of Poland.

Example 2: Interference with the Legitimate Exercise of 

Political Processes

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

Civil society

organizations

(Zimbabwe)

Hypothetical based on real event

Actual event

Civil society organizations (CSOs) in Zimbabwe are statutorily controlled bodies that deal with humanitarian matters and, after independence, democracy and governance.6

 Most resistance efforts opposing 

the standing government have had their genesis in the CSOs.7, c While 

CSOs are required to register with the government, they are generally authorized to carry out a variety of activities, at least in theory. 

There are, however, strict prohibitions on speech that criminalize messages critical of anyone in the office of the president. The government 

can also suspend activities of certain CSOs under the vague and easily abused justification that it is operating against the public interest. 

Since 2008, there have been pledges to reform the political agenda 

of the country and make democratic space accessible to CSOs, but 

instances of repression persist. Even when operating within their lawful charter, ahead of elections, CSOs have commonly been harassed 

c There are three types of CSOs: private voluntary organizations (PVOs), trusts, and 

a class called universitas, which is a type of group that exists purely for the benefit of its 

members and cannot be recognized as a PVO.
Chapter 3. Nonviolent Resistance

29

and have had their activities suspended.8,d Of course, Zimbabwe is a 

complicated example, as government interference with lawful activity 

is the least of its repression tactics: the government has accumulated a 

lengthy record of abuse of opposition supporters, including instances 

of torture and murder.9 Nonetheless, this example is useful because it 

shows the tension and limits of operating within the legal confines dictated by a standing government disposed to corruption. The resistance 

can operate lawfully until it unexpectedly finds itself either hindered 

through hastily made administrative hurdles or sudden suspensions or 

changes in the law. When the opposition makes the rules, it can change 

the rules to leverage control, meaning that such a resistance may suddenly find itself operating illegally. In corrupt societies, these groups 

do not enjoy lengthy notice and publication of rule changes, opportunity for public comment, or inquiries by a representative body.

The Status of the Resistance

What complicates the Zimbabwe example and situations like it is 

the fact that, as the laws are written, both the standing government 

and the resistance can be deemed technically to be acting in compliance with the law in a strict sense. The resistance members may exercise their will to influence politics through certain types of messaging, 

aid, and campaigning as permitted by statute. This exercise may make 

them targets of government harassment, which, albeit undemocratic, 

may not be illegal or actionable under domestic criminal or civil law. 

Even if there are laws on the books that criminalize harassment and 

targeting of this nature, it can be difficult, if not impossible, to successfully pursue a legal remedy because government institutions are not 

necessarily independent. Courts, for instance, may simply be rubberstamping what the executive branch orders. And yet, the government 

may try to maintain a modicum of legitimacy in the eyes of the international community by purporting to exercise its will through the use 

of legal instruments—for example, in the Zimbabwe example, using 

the broadly written clause that allows the government to suspend CSO 

activities that run counter to its interests by alleging that the CSO’s 

activities are harmful to the public.

d In particular, in June 2008, the government sought a blanket suspension of all PVOs 

engaged in humanitarian work, which resulted in the disruption of food aid and assistance to people in need, including orphans and people living with HIV/AIDs. In 2001, 

a provincial governor ordered all such bodies out of the area for failing to enter into a 

memorandum of understanding limiting their activities. Administrative interference of 

this type is designed to limit the ability of organizations to engage in political activity and 

influence the population against Mugabe’s government.
30

Legal Implications of the Status of Persons in Resistance

Another troubling aspect of this category is that members of the 

resistance can be forced to move between legal and illegal political 

acts, all on the basis of government manipulation of the legal structure. Indeed, manipulation of the law is a tactic that the government 

can use to maintain control over the opposition, a way of interfering 

with and delegitimizing the opposition’s standing. Resistance members 

are subject to their country’s domestic criminal laws, as at this point 

no other international body of law applies outside of IHRL. However, 

a government that fails to fairly apply its domestic law to its opposition 

is unlikely to abide by its IHRL obligations. While there may be international knowledge of the standing government’s practice—for example, in Zimbabwe, numerous nongovernmental organizations (NGOs) 

observe and report on this behavior to the extent that they can while 

facing potential ouster and retaliation—the resistance at this point is 

likely not receiving any formal recognition by outside states.

Even if there were outside recognition of the resistance at this 

point, unlike other categories of resistance (insurgency, belligerency), 

with respect to which recognition by a state invokes certain protections 

related to status of the participants in relation to that state, the value 

here may be simply to raise awareness of the cause and generate international attention. This is not to say that such recognition has no import 

for the resistance, as it clearly can. For instance, in apartheid South 

Africa in the 1960s, the United States recognized the sitting South 

African government as the legitimate governing authority, continued 

to increase economic ties with the country, and generally declined to 

openly criticize the apartheid regime.e

 However, in 1966, US Senator 

Robert Kennedy accepted an invitation to speak by the National Union 

of South African Students (NUSAS). On his trip, he met with banned 

ANC leader Albert Luthuli and visited Soweto, a sprawling township 

that served as a settling place for black Africans who had been evicted 

from other areas by state authorities.11 These gestures were openly defiant of the sitting government, yet they were largely symbolic because 

they did not serve to change US policy toward the country. Nonetheless, the anti-apartheid struggle was informally acknowledged by a 

well-known statesman, a one-time US attorney general, and brother of 

e The Sharpeville massacre in March 1960 is an exception to the US practice of not 

openly criticizing or commenting on the apartheid government’s actions. The African 

National Congress (ANC) organized several thousand protestors who descended on a 

police station to oppose increased enforcement of “pass laws” restricting the movement of 

blacks within the country. In response, the police killed sixty-nine people. The US State 

Department issued a comment stating, “while the United States, as a matter of practice, 

does not ordinarily comment on the internal affairs of governments with which it enjoys 

normal relations, it cannot help but regret the tragic loss of life resulting from the measures taken against the demonstrators in South Africa,” outraging President Eisenhower, 

who saw it as a “breach of courtesy among nations.”10
Chapter 3. Nonviolent Resistance

31

a former US president. It underscored the existence of the struggle, 

despite the fact that US policy toward South Africa would for some 

time remain driven by economic ties rather than by the denunciation 

of apartheid. Not until the 1980s did the United States adopt decisive 

legislation sanctioning the apartheid government.f

At this point, a resistance is bound by domestic civil and criminal 

penalties that may be imposed on their lawful activities. Foreign recognition of a nonviolent resistance may be useful in terms of increasing 

attention and support for the cause, but it will not change the status of 

the resistance. Such formal recognition is legally significant to some of 

the categories of resistance, but not here. However, unacknowledged 

support through UW activities may have a considerable impact.

The Status of US Personnel who Support Nonviolent 

Resistance

The status of US personnel supporting the lawful efforts of a resistance that may be similar to those described in the Solidarity and Zimbabwe examples turns on a critical fact: these activities are conducted 

in a foreign country outside of wartime in which the United States may 

or may not already have a military presence. The support is likely unacknowledged, unless personnel are present with the host nation’s consent as part of foreign internal defense (FID) operations. Entry into the 

country by military personnel to conduct activities opposing the standing government, even if authorized under US law, would typically be 

internationally unlawful as a violation of state sovereignty and an unlawful intervention in internal affairs.14 Therefore, when US military or 

other government personnel enter a foreign country, the entry must be 

justified. A justification under international law includes self-defense, 

but here it is a peacetime scenario, and there has been no armed attack 

that would warrant defensive measures and no armed attack is imminent.g

 Moreover, the United States in this example is purposely avoiding 

open and aggressive acts and would not be able to avail itself of this 

justification in any case. The flip side is that it is plausible that military personnel discovered in a country could cause the nation to invoke 

self-defense and prompt the use of force in response, particularly if the 

f In 1986, Congress passed the Comprehensive Anti-Apartheid Act, which imposed 

economic sanctions and, as conditions for lifting the sanctions, outlined a time line for the 

elimination of apartheid laws as well as Nelson Mandela’s release from prison.12,13

g The theory of an “emerging threat” (also known as the Bush doctrine) has been 

argued as justifying acts of preemptive self-defense, but the facts here do not warrant that 

analysis.
32

Legal Implications of the Status of Persons in Resistance

personnel were to be deemed spies.h The use of force in self-defense 

may not be justified by these circumstances, which fall short of an 

armed attack, but that determination would be made after the fact. 

The point is that concern by the country in which US personnel are 

discovered over whether defensive actions will later be deemed justified under international law may not be enough to deter the use of 

force. The question of how a member of the US military defends his or 

her presence if discovered supporting a resistance in a foreign country 

becomes a delicate matter.

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

Venezuela

(detained

American)

Hypothetical based on real event

Actual event

Venezuela’s recent detention of a US citizen amid accusations that 

he was fomenting postelection violence on behalf of the US government pointedly highlights the predicament of personnel in this category.16 Venezuela accused Tim Tracy, who it was later revealed is a 

documentary filmmaker, of “paying right-wing youth groups to hold 

violent demonstrations in order to destabilize the country” after President Nicolas Maduro’s narrow win in the election. Tracy was labeled 

a spy, and Venezuela asserted that it would charge him under its antiterrorism laws.17 Tracy was released after the United States and Venezuela agreed to work to restore diplomatic ties.18,i

For purposes of analysis, suppose the following in the Tracy example:

1. Tracy is actually an un-uniformed member of the US military.

2. He was authorized under US domestic law to enter Venezuela 

to conduct UW operations by working with youth groups to 

foment political instability.

3. The intent of the demonstrations being organized were in 

fact nonviolent, contrary to Venezuela’s accusations.

4. News reports indicating that Tracy was arrested at the airport 

are accurate.

h Scott notes that “nations perceive the threat of armed aggression differently, and 

international law has not attempted to codify precisely the circumstances that justify the 

use of force in self-defense. Accordingly, particular forms of espionage may give rise to the 

use of force as well as a response under domestic criminal law.”15

i Tracy’s release seems to have been negotiated on the basis of the desire to restore 

diplomatic ties and to “set a warmer tone” for an upcoming meeting between Secretary of 

State John Kerry and Venezuelan Foreign Minister Elias Jaua.
Chapter 3. Nonviolent Resistance

33

From the US perspective, Tracy is a member of the US military carrying out official, authorized activities. His activities are clandestine in 

the sense that he is not in uniform and is not carrying military identification (because the US government seeks to conceal its sponsorship 

of his presence).j From the perspective of Venezuela, he is a US citizen assisting a group opposed to the government. Due to a history of 

strained diplomatic relations between the two countries,k a US citizen 

assisting a group with views that oppose those of the sitting government 

immediately raises suspicion that Tracy is in fact something other than 

a tourist, filmmaker, or foreign citizen-activist sympathetic to the youth 

groups’ cause. On the basis of the facts available, nothing indicates 

that the youth groups or Tracy were in fact doing anything illegal. The 

organization of nonviolent demonstrations itself does not appear to be 

against Venezuelan law, which is perhaps why the government alleged 

that they were organizing “violent demonstrations.”l

From Venezuela’s perspective, Tracy is a spy. The assertion that 

Tracy is a spy is tantamount to asserting that he has no international 

legal protections. Spies, here meaning civilians as opposed to military 

personnel conducting espionage, are not recognized members of a sovereign military and are not diplomatic agents.m Nations have domestic laws criminalizing espionage within their respective territories, but 

espionage is not a violation of international law.n By alleging that Tracy 

is engaged in espionage, Venezuela is bringing the matter to an interj A discussion of the distinction between covert and clandestine, as defined by 

Department of Defense (DoD) policy and statutorily in Titles 10 and 50 of the US Code 

is discussed in Chapter 7. Domestic Legal Constraints. While the statutory authority for such 

activities is relevant to status, it is not discussed in detail here. For purposes of this example, what is relevant is that Tracy is authorized by the United States to be in Venezuela.

k Venezuela has a history of accusing the United States of attempting to destabilize 

the country. President Maduro has called President Obama “the big boss of the devils” 

and asserted that he is eager to find a reason to intervene in the country and even alleged 

that the cancer to which former President Chavez recently succumbed was caused by the 

United States.19

l For this example, the assumption is that any activities are nonviolent. If there is a 

Venezuelan law that criminalizes the act of planning or agreeing to commit an unlawful 

act (something akin to conspiracy, or if plotted against the state, insurrection), then Tracy 

and the youth group members could be in violation of the law if the facts support the 

claim.

m Scott states that “all states constantly or occasionally send spies abroad, and 

although it is not considered wrong morally, politically, or legally to do so, such agents 

have, of course, no recognized position whatever according to international law. . . . Every 

state punishes them severely when they are caught committing an act which is a crime by 

the law of the land.”20

n Parks notes that “no serious proposal has ever been made within the international 

community to prohibit intelligence collection as a violation of international law because of 

the tacit acknowledgement by nations that it is important to all, and practiced by each.”21
34

Legal Implications of the Status of Persons in Resistance

national level, not because the alleged espionage violates international 

law under which he can be prosecuted but because, otherwise, there is 

much less of a story to use as leverage. There may be a strategic advantage to drawing international attention to what may be perceived as 

objectionable acts by the United States. It is a way for the country to 

continue to build on its anti-American rhetoric and to appear justified 

in further detaining and trying Tracy under domestic law.

At this point, there is little legal recourse. Tracy is subject to Venezuelan law as if he is a tourist or resident in that country. In terms 

of the law that applies, there is little if any difference between Tracy 

the filmmaker and Tracy the soldier. His status may influence how the 

United States negotiates his release, but at this point, the efforts to 

secure his release are diplomatic in nature and do not relate to his legal 

status. There is no advantage for Tracy to admit that he is a member 

of the US military, because outside of an armed conflict, he will have 

no additional IHL protections, and outside of an international armed 

conflict (IAC), he will be afforded no prisoner of war (POW) protections. In fact, asserting that he is a member of the military could make 

negotiations more difficult because the United States would then be in 

the position of having to explain why a member of its armed forces is 

in another country, outside of wartime, assisting a resistance group. In 

this case, the facts may favor arguing more aggressively that Tracy was 

not violating any law and that there is no evidence that he was ever seen 

in the presence of the youth groups, as he was arrested at the airport. 

His entry into and out of the country was lawful. How a release is negotiated would be carefully constructed at the highest levels of government and be a matter of foreign policy and diplomacy.o

o Historical examples provide some context for the complexity of these extralegal 

matters. The release of imprisoned Central Intelligence Agency (CIA) agents John 

Downey and Richard Fecteau during the Korean War took more than two decades to negotiate. Although they were CIA agents and not military personnel, their story highlights 

several sensitivities that may influence how an individual’s release is negotiated. After 

their plane was shot down over China in 1952, they were captured and interrogated, and 

they eventually revealed that they were spies. The CIA did not know that they remained 

alive for two years after their capture. The CIA’s cover story was that both men were Army 

civilians traveling on a contract aircraft. This story was maintained for almost the duration 

of their captivity. The US relationship with China made taking forceful action to attempt 

a rescue of the men difficult if not politically impracticable. Some US officials argued that 

they should be treated as military personnel shot down over Korea, but the US government worried that treating Fecteau and Downey like military personnel held captive would 

induce China to simply deny POW status to all. The military personnel were released in 

1955 after the United States appealed to the United Nations (UN). In 1971, when relations 

with China improved and trade restrictions were lifted, the CIA was finally able to negotiate Fecteau’s release. Downey was not released until 1973, when President Nixon admitted 

in a press conference that Downey was a spy and appealed to China to release him on 

humanitarian grounds after Downey’s mother suffered a stroke.22
Chapter 3. Nonviolent Resistance

35

In the Tracy example, the facts surrounding his activities in Venezuela are favorable for constructing a cover story that situates him as 

a citizen who was not engaged in any unlawful activities. What if the 

facts made it more difficult to deny a military affiliation? A few months 

before Tracy’s detention, another US citizen was detained in Venezuela 

and was accused of being a mercenary on the basis that he had military training; carried a passport with recent stamps from Iraq, Afghanistan, and Jordan; and had tried to illegally cross the border between 

Colombia and Venezuela.23,p The individual allegedly tried to tear up a 

“notebook with coordinates” when he was captured.24 The US government initially denied being informed through official channels of the 

individual’s arrest but was eventually granted consular access.25,q No 

details regarding the individual were released, but “Western diplomats 

in Caracas” said that the issue probably arose in Colombia and that the 

detained citizen was fleeing “some sort of problem there.”26

Whether any of Venezuela’s allegations are true is not clear from 

the reports. For the purpose of analysis, suppose that this story is in fact 

about a member of the US military working covertly and trying to cross 

into Venezuela from Colombia undetected. What is this individual’s 

status, and does it differ in any considerable way from that of Tracy’s 

in the previous example? Here, the facts do not make for as favorable 

a cover story. To begin with, the US citizen broke Venezuelan law by 

crossing into the country illegally. Second, the fact that he had material 

that he attempted to destroy upon capture raises the suspicion that he 

is a spy or a military operative conducting some type of surveillance. 

Still, on the basis of the facts available, the Venezuelan authorities 

found nothing that affirmatively shows his affiliation with the US government beyond mere citizenship. Nonetheless, from the perspective 

of his status, this individual is no different than Tracy. He is subject to 

Venezuelan law and may be spared a trial or sentence if US diplomatic 

intervention proves effective.

One point to note in both examples is that the fact that the individuals were out of uniform does not have the same implications as if 

they had been out of uniform in an armed conflict. The use of civilian 

clothes to disguise their activities during peacetime would be considered deceit and, in the eyes of the capturing state, would justify punishment as acts of espionage. Under law of armed conflict (LOAC), there 

p The identity of this individual was not revealed. Then-President Chavez announced 

that his security forces were interrogating him and that the US government was trying to 

overthrow his regime in order to take control of the country’s oil reserves.

q The US State Department said that it had not been notified of the arrest but 

appealed to Venezuela to comply with consular relations treaties and grant US officials 

immediate access to the individual if Caracas was in fact detaining a citizen.
36

Legal Implications of the Status of Persons in Resistance

is a general prohibition against engaging in combat while out of uniform. The principle of distinguishing oneself from the civilian population requires that lawful combatants wear distinctive clothing so they 

can be recognized as lawful military targets. However, this is an armed 

conflict principle, and the activities in these examples are taking place 

in peacetime. Even if the individuals were in uniform, they would not 

be able to benefit from any of the protections that this would impart 

in terms of status, because they are acting outside of an armed conflict 

where IHL protections would apply.

 Special operations missions by design use unconventional methods 

in hostile, denied, and politically sensitive areas, and the use of indigenous or civilian dress is common in such missions.27 In fact, early in 

the operations in Afghanistan, indigenous forces working with the US 

military urged US soldiers to wear indigenous attire to reduce their visibility. The point was to reduce the likelihood that the soldiers would 

be targeted by those seeking collection of the $25,000 bounty the Taliban placed on the head of any uniformed US soldier.28 Importantly, 

the intent was not to appear as civilians, where doing so could be seen 

as placing civilians at undue risk and could violate principles of LOAC 

(sometimes referred to as “treacherous use of civilian clothing”).29 The 

issue became the source of debate in Afghanistan because DoD policy 

is to apply LOAC in any armed conflict, whatever its characteristics.30

Here, in the Venezuelan example, the point is to emphasize that the 

circumstances are not those of an armed conflict, and being discovered out of uniform will not, therefore, have the same implications.

RESISTANCE THROUGH ILLEGAL POLITICAL ACTS

A resistance may find working within the law difficult or ineffective. It may decide to deliberately violate the law in a nonviolent way to 

instigate social change. Commonly referred to as civil disobedience, 

this method may be direct or indirect.31 A direct approach focuses on 

the violation of what is considered an unjust law—for example, Rosa 

Parks’s refusal to comply with the Montgomery segregation ordinance 

was a protest of the law itself. Indirect civil disobedience refers to acts 

where the law that is broken is not the object of the protest, but disobedience of the law is a method to bring attention to the demands of 
Chapter 3. Nonviolent Resistance

37

the resistance.32, r In either case, the objective of civil disobedience is to 

break the law in order to further the agenda of the resistance, accepting the fact that breaking the law requires submission to the penalty.s

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

Civil rights

movement (US) 

Civil rights

movement (US) Hypothetical based on real event

Actual event

The civil rights movement in the United States made use of both lawful and unlawful nonviolent practices. Through lobbying and lawsuits, 

organizations such as the National Association for the Advancement of 

Colored People (NAACP) expanded the rights of blacks and successfully won courtroom battles against the “separate but equal” doctrine.t

At the same time, “Freedom Riders” were arrested for violating statutes 

banning them from sitting in the white section of buses,u and sit-ins 

took place at “whites-only” lunch counters across the South, resulting 

r US case law has not always recognized deliberate violation of a law when the law 

itself is not the target of the protest. In Walker v. City of Birmingham, the Supreme Court 

upheld the conviction of civil rights activists who had violated a court order prohibiting a 

planned march. The statute at issue was a parade ordinance requiring a permit for mass 

street gatherings and was not the target of the protest—in other words, the purpose of the 

march was not to challenge the ordinance as unjust.33

s Crucial to this decision is the recognition of the lawful penalty. “One who breaks 

an unjust law must do it . . . with a willingness to accept the penalty . . . an individual who 

breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying 

in jail to arouse the conscience of the community over its injustice, is in reality expressing 

the very highest respect for law.”34

t In Brown v. Board of Education, 347 U.S. 483 (1954), the US Supreme Court ruled 

that segregated public education violated the Equal Protection clause of the Fourteenth Amendment. However, the ruling was not embraced by many in the South, 

resulting in the targeting and harassment of blacks asserting their individual rights and 

state-enacted measures aimed at harassing the NAACP, which lost nearly 50,000 members 

in the late 1950s.35

u In Boynton v. Virginia, 364 U.S. 454 (1960), the Supreme Court held that individuals 

who had violated the Virginia trespass statute by sitting in the white section of a bus terminal restaurant had a right to sit wherever they chose. The Court found that the law segregating transportation violated the Interstate Commerce Act, given that bus transportation 

was sufficiently tied to interstate commerce.
38

Legal Implications of the Status of Persons in Resistance

in violent reactions from segregationists.v The nullification of the “separate but equal” doctrine, the eventual desegregation of schools, and 

the passage of the Civil Rights Act of 1964 are testaments to the effectiveness of nonviolent resistance. The civil rights movement influenced 

other concurrent and emerging nonviolent resistance movements, particularly in Africa.w Owing to the need to examine the involvement of 

the US military, an instance of foreign nonviolent resistance that uses 

illegal acts will serve as a more useful scenario for analysis.x

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

Antiapartheid

(S. Africa) Hypothetical based on real event

Actual event

The antiapartheid resistance in South Africa had moments of militancy, but it is categorized as nonviolent because in the end, it utilized 

diverse nonviolent strategies to overcome the apartheid government 

rather than relying on violent strategies.y Some of the earliest antiapartheid resistance efforts included nonwhite South Africans forming associations, organizing strikes, burning registration cards, and conducting 

mass illegal border crossings to object to unacceptable living conditions and forced population transfers.39 These actions were effective in 

v The “Big Saturday” sit-in in Nashville is an example of a highly coordinated nonviolent resistance involving illegal acts. In this protest, as one person was arrested, organizers promptly replaced his or her vacated seat. Big Saturday was a critical moment for the 

resistance because white leaders and business owners had believed that violence would 

force the protestors to submit. Rather, it turned out that they “were stunned to find that 

protestors were unfazed by beatings and arrests, and they realized they had only two 

options . . . either step up the violence . . . or try to buy off the students with some sort of 

concession.”36

w While there were differences in the circumstances of the movements, the common 

element of racism, and other parallels connected the efforts of the civil rights movement, 

African anticolonialism, and the antiapartheid movement in South Africa.37

x The civil rights movement in the United States is mentioned here as an example 

of a nonviolent resistance involving illegal acts. The US military was used in aspects of 

the movement, particularly when President Eisenhower sent the Army’s 101st Airborne 

Division to Little Rock, Arkansas, to enforce the integration of public schools after the 

Supreme Court’s ruling in Brown v. Board of Education. However, the use of the military for 

domestic law enforcement is a separate legal issue and does not provide the appropriate 

facts for analysis of UW activities, partly because the issue would be situated completely 

within the context of domestic law as opposed to analysis under international law.

y Tracing the resistance’s early use of legal tactics to nonviolent direct action, Lester 

Kurtz notes that “the decades of struggle saw the ebb and flow of a wide variety of strategic 

actions within the anti-apartheid movement. American theologian Walter Wink . . . suggests the movement was ‘probably the largest grassroots eruption of diverse nonviolent 

strategies in a single struggle in human history.’ ”38
Chapter 3. Nonviolent Resistance

39

getting the government to rescind some of the laws, but only temporarily. The ANC was formed in 1912 and became the main political opposition group representing the interests of the nonwhite population.z

 For 

several decades, the ANC promoted the use of nonviolent protests, such 

as the violation of curfews and other laws, until violent riots erupted in 

1953 and the government passed more stringent laws, including one 

authorizing the whipping of protestors. The ANC had tried to garner 

support from whites as part of its resistance strategy. After the Sharpeville Massacre in 1960, when police killed sixty-nine  people taking 

part in an ANC-organized protest to object to “pass laws” limiting the 

movement of blacks throughout the country, the ANC and an offshoot 

of the group called the Pan-Africanist Congress (PAC) were banned.

In response to Sharpeville, the ANC formed an armed wing called 

Umkhonto we Sizwe, which resorted to bombing government buildings, 

railroad lines, and power stations. Many ANC members were arrested 

and imprisoned. Armed uprisings were ineffective against the apartheid 

government, and ANC and PAC members who remained were forced 

into exile. For the next two decades, the struggle was characterized by 

waves of violence. The 1976 Soweto march, where police killed a thirteen-year-old boy, resulted in protestors elsewhere smashing windows 

and setting fire to government buildings. The government responded 

by killing more than sixty people in what was eventually known as the 

Soweto Uprising. Violence begot more violence, with blacks living in 

squalid townships turning on black councilors and others suspected of 

being police informants, brutally murdering them.

In the early 1980s, the newly formed United Democratic Front 

(UDF), which informally aligned with exiled ANC members and the 

Congress of South African Trade Unions (COSATU), was effective at 

gaining multiracial support for the cause. The township rebellions were 

troubling, but the UDF insisted on nonviolent conduct and refused to 

endorse the violence, even though it was aimed at apartheid leaders and 

collaborators. The focus on nonviolent methods was effective. Boycotts 

of white-owned businesses and demands for integrated facilities were 

so successful that they forced the government to declare a state of emergency. At this point, the resistance had created a number of community-based organizations that began to marginalize official institutions. 

The 1989 Defiance Campaign culminated in peace marches in cities 

throughout South Africa and included members of the white establishment and business leaders, setting the stage for formal negotiations 

with the antiapartheid resistance. In the end, nonviolent resistance, in 

z Only twenty percent of the population of South Africa was of European descent. 

Eighty percent comprised black Africans, Indians, and people of mixed descent called 

“Coloureds.”40
40

Legal Implications of the Status of Persons in Resistance

conjunction with increasing international sanctions, forced the apartheid government to yield.

The Status of the Nonviolent Resistance

The antiapartheid resistance used a range of nonviolent methods—

including marches and mass demonstrations, public remembrances of 

the victims of government violence, boycotts, strikes, and the violation of 

segregation laws, making it a good example from which to analyze the 

status of personnel committing illegal acts as part of a nonviolent resistance. Note that even though there were moments of violence throughout the resistance in response to state suppression, the resistance was 

mostly nonviolent. Violence was often initiated by the government, and 

in instances where it was not, it was generally initiated in response to 

force. In any case, after the ANC’s failed attempt to introduce an armed 

element, the resistance condoned only nonviolent methods.

In terms of status, the antiapartheid resistance, a resistance movement using nonviolent, illegal methods, was subject to domestic civil and 

criminal penalties for their illegal activities. In this example, members 

of the antiapartheid movement were arrested and in some cases served 

lengthy prison sentences. As the resistance had no status outside of 

the country in which it operated, even international pressure may have 

had little influence on the prosecution and treatment of arrested and 

detained members. Originally charged with inciting workers’ strikes, 

Nelson Mandela, who, it was subsequently revealed was affiliated with 

Umkhonto we Sizwe, was charged with sabotage and conspiracy to violently overthrow the government. Despite pressure from international 

organizations, such as the UN, calling for Mandela’s release, he was 

found guilty and served twenty years in prison before his release at the 

end of apartheid in 1990.

Nonviolent resistance movements have no recourse outside of their 

own judicial systems and may not have much hope for defending their 

actions, particularly if the system is not characterized by the rule of law. 

In the United States and some other countries, individuals can assert 

the necessity defense if their actions broke the law but are deemed 

necessary to prevent the occurrence of a greater harm.41 The defense 

has been used in civil disobedience cases, but it is difficult to justify 

because it can often be argued that there are other lawful means of 
Chapter 3. Nonviolent Resistance

41

protest.aa The antiapartheid resistance did not appear to have such a 

defense available, nor would it have likely been effective given the government’s extensive suppression efforts that made the system heavily 

rigged against nonwhites and those supporting changes to the apartheid regime.

The defense of necessity has been invoked on the basis of international law, with some, but not consistent, success, and mostly in lower 

courts that by their position in the judicial hierarchy have little effect 

on other courts’ decisions. The German Peace Movement successfully 

challenged the installation of Pershing missiles in Germany through 

sustained civil disobedience that appealed to the German constitution 

as well as international law and the UN Charter’s prohibition on the use 

of force.43 Individuals in Scotland were acquitted of damage to nuclear 

submarines on the basis of the judge’s assessment that the threat of 

nuclear annihilation was against international legal principles.44 However, more recently, nuns charged with pouring their own blood on 

materials at a military recruitment center in Ithaca, New York, were 

acquitted of conspiracy but not on the basis that the nuns argued. They 

asserted that their actions were legal under international law because 

the US-led invasion and occupation of Iraq was in violation of the UN 

Charter and treaties that the United States signed after World War II. 

However, the court determined that the war was irrelevant to their 

actions.45, ab The invocation of international law has generally fared 

poorly as a defense, and there are significant issues of its applicability 

aa One case in which defendants successfully asserted a necessity defense involved 

trespassing and disorderly conduct charges related to protesting CIA activities. During the 

trial, the judge permitted extensive testimony on CIA activities in Central America, which 

described murders and assassinations. The defendants alleged that their actions constituted legitimate efforts to prevent additional such crimes and to avert a greater societal 

harm. One defendant was Amy Carter, daughter of President Jimmy Carter.42 But other 

cases have not turned out similarly. Many examples involve the protest of nuclear weapons 

programs and involve trespass and destruction of property. For instance, United States v. 

Dorrell, 758 F.2d 427 (9th Cir. 1985), held that the defendant’s concern about nuclear war 

and subsequent entry onto an Air Force Base to deface missiles with spray-paint did not 

constitute a “real emergency,” as required by the defense of necessity. Similarly, United 

States v. May, 622 F.2d 1000 (9th Cir. 1980), held that there was no basis for the necessity 

defense to justify trespass onto a naval base to protest the Trident submarine program). 

As for defacement instead of trespass, United States v. Cassidy, 616 F.2d 101 (4th Cir. 1979), 

held that throwing blood and ashes on the Pentagon in protest of the US nuclear weapons 

program did not show the requisite direct causal relationship between the action taken 

and the avoidance of the harm to justify the necessity defense.

ab The nuns were acquitted of conspiracy, and while they found ways to assert international law in testimony, they were not permitted to use international law as a defense or 

to use the necessity defense because the judge had ruled them irrelevant and ordered that 

they not be raised or mentioned. They were convicted of lesser charges of trespass and 

damage to government property.
42

Legal Implications of the Status of Persons in Resistance

domestically and whether it even confers rights on individuals to act on 

its authority.

The Status of US Personnel Assisting Nonviolent Resistance

Based on the example in South Africa, suppose US personnel are 

working with the antiapartheid resistance. As the focus of this section 

is on nonviolent resistance, presume first that US personnel are training and assisting the resistance with the implementation of nonviolent 

illegal acts and that their presence is authorized under US domestic 

law, but unknown to the South African government. Suppose also that 

at some point, a nonviolent march orchestrated by the resistance in 

conjunction with US military personnel turns violent due to police brutality, and US personnel are present, un-uniformed, and involved in 

violent acts. Two key questions arise regarding status: what is the status 

of US military personnel supporting the resistance in planning and 

executing nonviolent illegal acts, and what is their status if they are 

involved in unanticipated violence?

Much like the Tracy example, US personnel working without host 

nation consent to support a resistance outside of an armed conflict 

stand in the same position as tourists. They have no special status, and 

if the resistance consists of nonviolent but illegal political acts, are 

engaging in criminal acts against a standing government. Moreover, 

their presence in-country would be illegal in that it would violate South 

Africa’s sovereignty. Even if they entered legally on a regular US passport, the fact that they are, as members of the US military, agents of 

the United States present in the host nation with the purpose and mission of UW makes their presence internationally unlawful because it 

violates the host nation’s sovereignty and the norm of noninterference. 

The South African government can determine that the personnel are 

spies and try them under its espionage laws.

Continuing with the South African example, beyond espionage, US 

military personnel could be exposed to a host of violations of South 

African criminal law for advising the resistance, including whatever 

analogous laws are in place in South Africa for conspiratorial acts and 

acts aimed at overthrowing the government, on top of any potentially 

lesser crimes or municipal regulations the activities may have actually violated—for example, trespass in the case of entering property 

to march or protest. There would be no advantage for US personnel 

to admit to being members of the US military, because outside of an 

armed conflict, they would have no additional IHL protections, and 

outside of an IAC, no POW protections. Again, doing so may place the 

US in the difficult position of having to explain why a member of its 
Chapter 3. Nonviolent Resistance

43

armed forces is in another country outside of wartime assisting a resistance group. It is possible that, assuming that the South African government had no indication that the individuals were members of the 

US military, a cover story could be generated according to which the 

individuals were, for example, merely sympathetic activists who came 

into the country to support the resistance on humanitarian or moral 

grounds and should simply be removed to the United States.

Like the members of the resistance, US personnel would not be able 

to avail themselves of defenses such as necessity or the protection principles of international law to justify their activities. This is in part due to 

the difficulty of asserting such defenses in the best circumstances, the 

irregular recognition of the defenses by courts, and the simple fact that 

the South African judicial system during apartheid was biased against 

antigovernment supporters. If they are involved in violence, then the US 

personnel would be exposed to prosecution for violations of criminal 

law. Even if acting in self-defense or in defense of members of the resistance, it is unlikely that they would receive a more favorable outcome 

than members of the local resistance in asserting such a defense. Selfdefense would be limited to the criminal context if South Africa recognizes the concept. And the violent nature of the incident would not 

transform the resistance into an armed conflict where certain actions 

that would otherwise be crimes would be lawful (e.g., murder would be 

permissible under LOAC if committed by combatants). The resistance 

and the personnel would remain criminals; even if they instigated the 

violence and it could arguably be called a rebellious act, it would not 

change the status of the US personnel or the resistance members, who 

would remain criminals.

In circumstances in which a standing government is using force and 

severely oppressive laws to compel members of society to submit to its 

will, it is not out of the question to presume that even if the violence 

amounted only to what would be considered battery, as opposed to, 

say, murder, personnel could face much more serious charges aimed 

at punishing the motive of the resistance and deterring future such 

behavior. Charges such as conspiracy to overthrow the government or 

sabotage, whether or not warranted given the acts committed, could be 

levied against US personnel as a punitive measure, especially if the government is interested in more severely punishing noncitizens to whom 

it may have even less of an obligation to provide judicial process. The 

fate of US personnel detained under the criminal statutes of a foreign 

country lies in the diplomatic processes that may be used to create a 

cover story and negotiate their release or the terms of the SOFA or visiting forces agreement.
44

Legal Implications of the Status of Persons in Resistance

ENDNOTES

1 Peter Ackerman and Jack Duval, A Force More Powerful: A Century of Nonviolent Conflict

(New York: Palgrave, 2000), 7.

2 Ibid.

3 Ibid.

4 Gene Sharp, The Role of Power in Nonviolent Struggle, Monograph Series no. 3 (Boston: 

Albert Einstein Institution, 1990).

5 Chuck Crossett and Summer Newton, “Solidarity,” in Casebook on Insurgency and Revolutionary Warfare, Volume II: 1962–2009, ed. Chuck Crossett (United States Army Special 

Operations Command, Fort Bragg, NC, 2012), 825.

6 “NGO Law Monitor: Zimbabwe,” International Center for Not-for-Profit Law (ICNL), 

June 6, 2013, http://www.icnl.org/research/monitor/zimbabwe.html.

7 Ibid.

8 Ibid.

9 Dewa Mavhinga, “Zimbabwe Revisits its ‘Ugly Past’ of Violence and Intimidation,” 

Public Service Europe, June 6, 2013, http://www.publicserviceeurope.com/article/3557/

zimbabwe-revisits-its-ugly-past-of-violence-and-intimidation#ixzz2VVx3ThoB.

10 William Minter and Sylvia Hill, “Anti-Apartheid Solidarity in the United States–South 

Africa Relations: From the Margins to the Mainstream,” in The Road to Democracy in 

South Africa, Volume 3, International Solidarity (Pretoria: University of South Africa, 2008), 

750–751.

11 Ibid., 746, 761.

12 Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. 99-440, 100 Stat. 1087 (1986), 

repealed by South African Democratic Transition Support Act of 1993, Pub. L. No. 103149, 107 Stat. 1505 (1993).

13 Minter and Hill, “Anti-Apartheid Solidarity in the United States–South Africa Relations,” 746.

14 Armed Activities on Territory of Congo (Dem. Rep. Congo v. Uganda), Judgment, 

2005 I.C.J. 168 (December 19).

15 Roger D. Scott, “Territorially Intrusive Intelligence Collection and International Law,” 

Air Force Law Review 46 (1999): 224.

16 Frank Bajak and Michael Weissenstein, “Timothy Hallet Tracy, American Man, Detained 

in Venezuela on Incitement Charge,” Huffington Post, April 25, 2013, http://www.huffingtonpost.com/2013/04/25/timothy-hallet-tracy-detained-venezuela_n_3157142.html.

17 Bajak and Weissenstein, “Timothy Hallet Tracy Detained in Venezuela on Incitement 

Charge.”

18 Jose de Cordoba and Kejal Vyas, “Venezuela, U.S. Try to Boost Ties,” Wall Street Journal, 

June 5, 2013.

19 William Neuman and Randal C. Archibold, “Kerry Meets with Official of Venezuela to 

Set Talks,” New York Times, June 5, 2013.

20 Roger D. Scott, “Territorially Intrusive Intelligence Collection and International Law,” 

222, citing L. Oppenheim, International Law, Vol. I: Peace, 8th Ed., ed. Hersch Lauterpacht (London: Longmans, Green, & Co., 1955), § 455, at 862.

21 W. Hays Parks, “The International Law of Intelligence Collection,” in National Security 

Law, eds. John Norton Moore, Frederick Samson Tipson, and Robert F. Turner (Durham, NC: Carolina Academic Press, 1990), 433–434.

22 Nicholas Djmovic, “Two CIA Prisoners in China, 1952–73: Extraordinary Fidelity,” 

Studies in Intelligence 50, no. 4 (2006): https://www.cia.gov/library/center-for-the-studyof-intelligence/csi-publications/csi-studies/studies/vol50no4/two-cia-prisoners-inchina-1952201373.html.
Chapter 3. Nonviolent Resistance

45

23 Kejal Vyas, “Venezuela Holds Suspected ‘Mercenary’,” Wall Street Journal, August 10, 2012.

24 Ibid.

25 Ibid.

26 Andrew Cawthorne, “U.S. Officials See ‘Mercenary’ Suspect in Venezuela,” Reuters, 

August 15, 2012.

27 W. Hays Parks, “Special Forces’ Wear of Non-Standard Uniforms,” Chicago Journal of International Law 4, no. 2 (2003): 493–560.

28 Parks, “Special Forces’ Wear of Non-Standard Uniforms,” 496–497.

29 Ibid., 519.

30 US Department of Defense, DoD Law of War Program: DoD Directive 2311.01E, December 

9, 1998, ¶ 5.3.1.

31 Bernard D. Lambek, “Necessity and International Law: Arguments for the Legality of 

Civil Disobedience,” Yale Law & Policy Review 5, no. 2 (1987): 474.

32 Ibid.

33 Walker, 388 U.S. 307, 315 (1967).

34 Martin Luther King Jr., “Letter from Birmingham City Jail,” in A Testament of Hope: the 

Essential Writings and Speeches of Martin Luther King Jr., ed. James M. Washington (New 

York: HarperCollins, 1991), 289.

35 Ackerman and Duval, A Force More Powerful, A Century of Nonviolent Conflict, 309.

36 Ibid., 322.

37 Minter and Hill, “Anti-Apartheid Solidarity in the United States-South Africa Relations,” 

747.

38 Lester Kurtz, “The Anti-Apartheid Struggle in South Africa (1912-1992),” International 

Center on Nonviolent Conflict, (2010), http://www.nonviolent-conflict.org/images/stories/pdfs/kurtz_south_africa.pdf.

39 Ackerman and Duval, “A Force More Powerful, A Century of Nonviolent Conflict,” 

335–368.

40 Ibid., 337.

41 Lambek, “Necessity and International Law: Arguments for the Legality of Civil Disobedience,” 476.

42 Mathew L. Wald, “Amy Carter is Acquitted Over Protest,” New York Times, April 16, 1987.

43 Frederic Megret, “Civil Disobedience and International Law: Sketch for Theoretical 

Argument” (working paper, Faculty of Law, McGill University, Quebec, 2008), http://

dx.doi.org/10.2139/ssrn.1163270.

44 “Judges to Examine Trident Case,” BBC News, January 17, 2000, http://news.bbc.co.uk/2/

hi/uk_news/scotland/607232.stm.

45 Elizabeth Bauchner, “St. Pat’s Four Not Guilty of Federal Charges,” The Nation, September 25, 2005.

CHAPTER 4.

REBELLION

Chapter 4. Rebellion

49

Rebellion is the first category of armed resistance on the continuum. Recall that, on the resistance continuum, factors contributing to 

the changing nature of a resistance include intensity of the struggle, 

duration of the conflict, and the organization the resistance exhibits 

in a territory.a Rebellions are traditionally characterized as a group’s 

short-term, isolated violent engagements of low intensity that a state’s 

law enforcement mechanisms are able to suppress.1 The group may be 

organized but not sufficiently so to meet the greater threshold of insurgency, where there is more territorial control and a more defined organizational structure. Riots and insurrections are examples of armed 

resistance that fall within the category of rebellion.

Rebellions do not rise to the level of armed conflict, and therefore 

individuals involved in rebellious acts are subject to the domestic law 

of the state in which the acts occur. They are also subject to whichever 

other applicable international legal commitments the state has made, 

such as status of forces and related agreements and international human 

rights law (IHRL). Like those in the category of nonviolent resistance, 

rebels are still situated within the domestic legal paradigm of the state 

in which they carry out their activities. The following discussion looks 

at the legal status of each participant in this category and then analyzes 

his or her status within the context of certain hypotheticals.

THE STATUS OF THE RESISTANCE

That international humanitarian law (IHL) does not regulate rebellions has been justified on the basis of the noninterference principle, 

because external assistance would constitute illegal intervention.b Common Article 3 and Additional Protocol II provide minimum protections 

for those involved in an armed conflict that is not of an international 

character (i.e., an internal armed conflict). These protections, the 

minimum available under IHL, do not apply until the situation can be 

deemed an armed conflict. Article 1(2) of Additional Protocol II acknowledges that it “shall not apply to situations of internal disturbances and 

a As a consequence of increasing intensity, duration, and organization, the level of 

territorial control a resistance exercises will often also increase. This provides another 

factor to consider when determining into which category a resistance fits. The greater the 

territory occupied, controlled, or administered by the resistance, the more likely it is to 

progress along the continuum.

b “States preferred to regard internal strife as rebellion, mutiny and treason coming within the purview of national criminal law and, by the same token, to exclude any 

possible intrusion by other States into their own domestic jurisdiction. This [was] clearly 

sovereignty-oriented and reflected the traditional configuration of the international community, based on the coexistence of sovereign States more inclined to look after their own 

interests than community concerns or humanitarian demands.”2
50

Legal Implications of the Status of Persons in Resistance

tensions, such as riots, isolated and sporadic acts of violence and other 

acts of a similar nature, as not being armed conflicts.”

If IHL does not apply because the situation does not constitute an 

armed conflict, then the only law left to apply is the domestic law of 

the host nation subject to the host nation’s IHRL commitments.3,4 The 

commentary to Common Article 3 notes that the article’s threshold was 

set high enough to answer a hesitation expressed by many states during 

drafting that the article would hinder states’ ability to suppress insurrections. The commentary states that Common Article 3 “does not in 

any way limit the right of a State to put down rebellion.”5 States possess a sovereign right to defend themselves from threats both external 

and internal.6, c Most, if not all, states have laws prohibiting actions and 

conspiracies aimed at overthrowing the standing government.8,9 Therefore, the only protections available to rebels engaged in an uprising 

that is short of an armed conflict would be those protections embedded in the host nation’s criminal and constitutional law, as well as the 

human rights commitments made by that state.

Rebels commit crimes against the state, and if the rebellion fails, 

will be subject to criminal prosecution.10,11 The basis for prosecution 

may be the violation of laws regarding treason and insurrection, as well 

as those laws criminalizing activities that would otherwise be lawful on 

the basis of the combatant’s privilege in armed conflict.d Those engaging in international armed conflicts (IACs) receive the protection of 

combatant’s privilege,13 but those engaging in noninternational armed 

conflicts (NIACs) do not,14,15, e and rebellions, by definition, fall below 

the threshold for armed conflict. Rebels are not combatants, they do 

not receive the combatant’s privilege, and their violent actions during 

a rebellion constitute crimes. Furthermore, IHL does not oblige states 

to extend the protections afforded by the combatant’s privilege or prisoner of war (POW) status to rebels.16

States retain jurisdiction over rebels, which may create an incentive 

not to recognize them as anything other than criminals. If a state were 

to recognize rebels as insurgents or belligerents, it would then be constrained by relevant provisions of IHL that applies to those categories. 

So, while states have discretion whether to recognize a situation as an 

c The U.S. Const. art. I, § 8, cl. 15, provides that Congress shall have the power “to 

provide for the calling forth of the militia to execute the laws of the Union, suppress insurrections, and repel invasions.”7

d The combatant’s privilege “is in essence a license to kill or wound enemy combatants and destroy other enemy military objectives.”12

e Protocol II, in Article 6, provides procedures for the prosecution and punishment 

of criminal offenses related to armed conflicts and encourages the granting of amnesty to 

direct participants in armed conflict.
Chapter 4. Rebellion

51

insurgency or belligerency,17 there is an incentive to avoid doing so for 

as long as possible in order to operate free of IHL restrictions.

THE STATUS OF THE STANDING GOVERNMENT

When a rebellion occurs, a dissident group rises up against the 

standing or rulingf government of a state.g Until the rebellion succeeds 

and displaces the standing government, the government remains the 

lawful and legitimate embodiment of the state’s sovereignty.19 States 

have a right to self-preservation, and when faced with insurrection, they 

can lawfully put down rebellions by means they deem necessary, consistent, of course, with IHRL.20,21

In rebellion, the question of a standing government’s legitimacy 

remains one of domestic law. IHL would be implicated only if the rebellion survived suppression efforts and either ousted the government 

completely or caused it to go into exile. Before that point, however, 

the standing government remains the lawful, legitimate government 

of the state experiencing the uprising. As such, the status of government members and personnel is as lawful government officials and personnel with all the rights and duties that accompany their positions. 

Accordingly, violence against them would constitute crimes as defined 

by the domestic law of the host nation.

At the stage of rebellion, few, if any, armed forces are typically used 

by the state to counter the uprising. Instead, the state will most often 

predominantly use law enforcement personnel until these officers 

become overwhelmed and the state’s armed forces are required.h It follows from this that law enforcement and military personnel will receive 

f It is important to note that the government against which the rebellion occurs does 

not have to be the lawful or rightful government of the state, only that it be in charge, so 

to speak. Meaning, a rebellion rises up against the group that is in power and exercises 

authority over the majority of the host nation, whether or not that group is recognized as 

lawful by the citizens of that state or by other governments.

g Halleck makes clear in section 5 of chapter 14 that insurrections and belligerencies 

seeking to change the political order of the state are internal matters and are, therefore, 

civil wars governed by the same rules as civil wars. Halleck goes on to explain in section 9 

of the same chapter that civil wars are governed by the rules of war but that mere rebellions are exceptions, “as every government treats those who rebel against its authority 

according to its own municipal laws, and without regard to the general rules of war which 

international jurisprudence establishes between sovereign states.”18

h For instance, in the United States, federal or federalized armed units may not be 

deployed in a state to enforce state law until that state’s legislature requests federal assistance.22 Thus, in the United States, law enforcement has authority to arrest people during 

peacetime and the military has authority to use lethal force and to detain people during 

war or martial law, but those authorities remain separate until the military is granted legal 

authority to exercise law enforcement functions.23
52

Legal Implications of the Status of Persons in Resistance

the protections afforded them in their normal course of duty. These 

protections might include the authority to use force or the power of 

arrest when confronted with force and the power to use lethal force, 

when deemed necessary in their discretion, without facing murder or 

assault charges in accordance with IHRL. However, these protections 

will not include those based on the law of armed conflict (LOAC), such 

as those in Common Article 3 or Additional Protocol II.

Many states, including the United States, have laws in place that 

empower the government to respond to and suppress insurrections.24

These laws tend to regulate which state agents may be engaged against 

an uprising and at what point.25 Additionally, states have an obligation to protect the public and preserve public order, and they are also 

endowed with the powers necessary to fulfill these obligations.26 The 

implication is that state agents enjoy the status of possessing lawful 

authority to exercise their lawful functions and are immune from prosecution, as well as from being legitimate targets during hostilities (killing them therefore becomes murder). However, government personnel 

will not be protected when they act outside of their official duties in 

criminal or injurious ways or when they violate human rights obligations either in pursuit of official business or not.

THE STATUS OF US PERSONNEL

It is generally unlawful for a state to intervene in a rebellion without 

the consent of the host nation. Article 2(7) of the United Nations (UN) 

Charter prohibits the UN from intervening in matters that are essentially covered by the domestic jurisdiction of a state.i

 International law 

restricts, if not prohibits, third-party involvement in states’ domestic 

affairs. For instance, General Assembly Resolution 2131,27 later reiterated by G. A. Resolution 2625,28 declares it to be general international 

law that states may not intervene in the domestic affairs of other states. 

Additionally, Article 18 of the Charter of the Organization of American 

States also prohibits states from intervening in the affairs of other states 

not only by armed force but also by any means that would threaten the 

personalities of those other states.29 And the International Court of 

Justice has clearly stated that “the principle of non-intervention derives 

from customary international law.”30

When foreign armed forces enter the territory of another country, 

they must do so on a legal basis or justification. Otherwise, the simple 

i Charter of the UN, Chapter I, Article 2(7) states, in pertinent part: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters 

which are essentially within the domestic jurisdiction of any state . . . but this principle 

shall not prejudice the application of enforcement measures under Chapter VII.”
Chapter 4. Rebellion

53

entry of armed forces into another country constitutes an internationally wrongful act and a domestic criminal act because it violates the 

receiving state’s territorial integrity and sovereignty.31 Each sovereign 

has exclusive and absolute jurisdiction over its territory and the persons within it.32 Thus, under customary international law, nations have 

jurisdiction over all actions taken within their territories, whether 

by citizens or foreign nationals,33,34 unless the sovereign expressly or 

impliedly surrenders its jurisdiction.35

Accordingly, in the absence of a negotiated sharing of jurisdiction 

over armed forces or government agents operating in a host nation, 

the host nation’s domestic law will prevail, whether the foreign armed 

forces are engaged in assisting the rebels or the standing government. 

Military personnel or government agents who enter another country 

without a legal basis, engage in operations, and are caught by the host 

nation will receive only the protections of the domestic criminal law 

process and the applicable protections of IHRL. At that point, diplomatic efforts with the host nation will be required to secure more favorable treatment.36 Such efforts constitute a post hoc arrangement for the 

treatment of foreign personnel caught operating in a country without a 

legal basis. Many states, including the United States, prefer to put into 

place in advance a legal instrument that defines the status and treatment of foreign personnel operating in a country.j

In the case of US military personnel operating without a legal basis, 

the internationally wrongful act would be the entry into the state without permission. Any actions taken after that may constitute crimes or 

offenses under the state’s domestic law and, just as a tourist would be, 

the individual is subject to the full jurisdiction of the host nation.38

When forces are present in another state with a legal basis, such as an 

international agreement, their presence is not wrongful, but actions 

taken while in the host nation may constitute crimes under domestic 

law or under the law of the sending state. The agreement will define 

which state is granted jurisdiction in such situations.39

Under international law, a few scenarios, such as self-defense, justify service members or government agents of one state operating in 

another state without the second state’s permission. A rebellion, as a 

domestic matter, does not present grounds for foreign states and their 

militaries to operate in another country, unlike self-defense, war, and 

j Status of forces agreements (SOFAs) and their implementing agreements are treatylike constructs that stipulate the terms of the presence or operations of troops within 

another country, but they do not justify actions outside the scope of their terms (e.g., 

engaging in armed conflict).37
54

Legal Implications of the Status of Persons in Resistance

possibly humanitarian intervention.k Therefore, military personnel or 

government agents will be operating in another country either without 

a legal basis or with a legal basis manifested in an agreement between 

the two nations concerned. These personnel and government agents 

operating in a country experiencing rebellion will assist either the rebels or the standing government. Assistance to a host government for 

purposes of law enforcement and internal security constitutes foreign 

internal defense (FID).l Assistance to rebels rising up against a host 

nation’s government amounts to unconventional warfare (UW). Each 

of these categories brings with it its own particular implications for the 

status of the personnel involved.

Traditionally, the “law of the flag” imputed sovereign immunity to 

foreign public vessels, including aircraft, as well as ground forces stationed on a base in a host nation.41,42 The host nation had no jurisdiction over foreign armed forces or individual members. This traditional 

rule has given way to greater host nation jurisdiction, as in the NATO 

SOFA signed in 1951.43,44 The United States recognizes and follows the 

rule that the host nation retains jurisdiction over US armed forces 

unless these rights are surrendered.45,m

SOFAs are meant to fully define the relationship between visiting 

armed forces and the receiving state.48 The time required for negotiation of a “full SOFA” and the expected duration and scale of operations 

in the host nation, as well as the maturity of the political relationship 

between the states, may lead to a mini-SOFA or visiting forces agreement instead.49 These agreements address a multitude of issues, but they 

predominantly cover entry and exit processes for visiting forces, when 

and where uniforms may be worn, when and where arms may be carried and used, and criminal and civil jurisdiction.50 Regarding criminal 

k Per the Operational Law Handbook: “An exception to general rule of Receiving State 

jurisdiction is deployment for combat. . . . As the exigencies of combat subside, however, 

the primary right to exercise criminal jurisdiction may revert to the Receiving State or 

come under another jurisdictional structure established in a negotiated agreement with 

the Receiving State.”40

l Counterinsurgency would be an inappropriate term here because the hostilities have 

not yet reached the level of insurgency. Additionally, counterinsurgency often entails 

direct participation by foreign troops, whereas FID includes predominantly advising, 

training, providing supplies and technology, and sharing intelligence.

m The United States has ratified the NATO SOFA.46 Technically, the United States 

can pursue immunities for its personnel by extending the protections provided to embassy 

administrative and technical staff under the Vienna Convention on Diplomatic Relations 

to other personnel. Commonly referred to as A&T status, this protection is usually accomplished through an exchange of diplomatic notes or memoranda of agreement executed 

by the combatant command headquarters or a diplomatic representative. This status usually affords persons under it full criminal immunity and civil immunity limited to actions 

taken in pursuit of official duties. However, there is no readily available example of this 

status being extended to individuals involved in FID or operations.47
Chapter 4. Rebellion

55

jurisdiction, four paradigms exist: NATO SOFA shared jurisdiction, Visiting Forces Acts, administrative and technical status, and the absence 

of any agreement between the sending and receiving states.51

The NATO SOFA distributes jurisdiction between the receiving and 

sending states on the basis of which state’s law is violated and who is 

the victim. The sending state has exclusive jurisdiction if the conduct 

violates the law of the sending state but not that of the receiving state.52

Personnel engaged in FID or UW might violate their military regulations or commit a dereliction of duty. They would be subject exclusively 

to sending state jurisdiction, and would not be subject to receiving state 

jurisdiction because they violated a sending state law, not a receiving 

state law. The receiving state has exclusive jurisdiction for acts that constitute offenses under its own domestic law, even if those acts do not 

constitute offenses under the law of the sending state.53 An act that violates the laws of both states engages the concurrent jurisdiction of both 

states. In these instances, one state receives primary jurisdiction. The 

sending state receives primary jurisdiction when the sending state or 

a person from the sending state is the victim.54 The sending state also 

receives primary jurisdiction when the act or omission occurs while the 

actor is on duty and in the performance of official duties.55 The receiving state possesses primary jurisdiction in all other cases.56 States can 

elect to waive jurisdiction, and the NATO SOFA encourages sympathy 

for requests by the state without primary jurisdiction.57

The remaining two paradigms apply when armed forces are sent 

into another state without an agreement in place. Some countries have 

Visiting Forces Acts in their domestic laws. These acts require that the 

sending state be listed according to the domestic law before its protections apply. The protections that would apply are either a shared 

jurisdiction formula like the NATO SOFA or protections equivalent 

to limited diplomatic immunity.58 If the receiving state has no Visiting Forces Act and no international agreement has been reached, then 

those who enter and operate in the receiving state subject themselves 

to the full jurisdiction of the host nation. This means that the only 

protections they will receive will be those provided by local criminal 

procedure, the IHRL obligations of the receiving state, and the diplomatic efforts of the individual’s state of nationality.59 In the case of 

the United States, if a US service member ends up under the exclusive 

jurisdiction of the host nation, the United States will take all possible 

steps to ensure a fair trial.60,n

n DoD Directive 5525.1 lays out the corresponding detailed provisions.61 Army Regulation 27-50 implements this directive.62
56

Legal Implications of the Status of Persons in Resistance

REBELLION IN CONTEXT: HONDURAS, BRAZIL, 

AND MALI

Within the category of rebellion, the lower and upper thresholds—

in other words, the situations that are in the least developed phases of 

armed resistance versus those that are closer to insurgency—can exhibit 

very different levels of violence and organization. The 2009  coup in 

Honduras and the recent violence associated with protests in Brazil 

are two examples of activities that constitute rebellion at the lower end 

of the threshold. In contrast to those examples are the activities of the 

Tuareg in Northern Mali, which are characterized by more sustained 

and coordinated acts of violence. An interesting point to bear is mind is 

that, in news reports, the Brazilian protestors engaging in violence are 

still referred to as “protestors.” Indeed, colloquially, this term describes 

their initial acts and motivations. Nonetheless, their conduct has risen 

to that of rebellion. So, while the description of the Tuareg may conjure 

the image of rebels as gun-wielding criminals who plan attacks against 

the state, they share the category of rebels with the Brazilian protestors 

who wielded no guns against the state in their unplanned, impromptu 

rebellious acts. Yet, because they resort to violence, they fall within this 

category of resistance. These cases highlight the contrasting nature of 

the thresholds of illegal political acts and insurgency between which 

rebellion sits.

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

Honduras

(post-2009 coup) Hypothetical based on real event

Actual event

In June 2009, Honduras experienced a coup d’état through which 

the military forcibly removed sitting President Manuel Zelaya. The 

coup began peacefully, but heavy-handed tactics by the military to suppress the resistance incited government opposition, and violent clashes 

ensued between citizen protesters and the Honduran military.63 The 

national police force was responsible for twenty deaths in the immediate aftermath and countless serious injuries in the following weeks.64

When a large-scale protest gathered at the presidential residence, the 

military responded to the protesters with riot gear and tactics that 

included water cannons and tear gas, while the protesters used stones 

and everyday materials, including flaming trash cans. Protesters in 

these demonstrations set up makeshift barricades and burned tires, 

and they attacked soldiers with stones and clubs.65
Chapter 4. Rebellion

57

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

Brazil (2013) Hypothetical based on real event

Actual event

In Brazil, large-scale protests erupted in response to a government 

proposal to raise transportation fares.66 After the government retracted 

the proposal, protests intensified and began to focus on issues in addition to rising transportation fares.67 These protests were characterized 

by violence between police and protesters engaging in street fights. 

Police responded with routine riot gear and riot control tactics, such as 

tear gas and rubber bullets, but they reportedly were indiscriminate in 

who they fired against.68 Protesters have also attempted to storm and 

infiltrate government buildings, and when prevented from entering, 

they started fires outside of these buildings.69,70

These two examples demonstrate rebellion at relatively mild stages. 

They feature citizens destroying property, violently engaging government forces, and deliberately acting illegally with specific aims against 

the standing government. However, their actions are largely unorganized and sporadic, and their means of violence are not sophisticated. 

In addition, they do not pose a lethal threat to government personnel; 

body armor and riot gear suffice to secure the public space. The time 

and place of protests might be somewhat planned or communicated 

to the masses, but planning falls short of a coordinated strategy. The 

immense disparity in fire power between protesters and government 

forces illustrates that the normal power divide remains in place, meaning that the state retains the monopoly on force and the resistance has 

not begun to challenge that monopoly. Accordingly, these have been 

matters for law enforcement and constitute domestic unrest that does 

not rise to the level of a NIAC. Notice also that, in some areas, the 

military has operated alongside the police, but this factor alone is not 

determinative of rebellion. It is not uncommon for the military to be 

used to support police forces in a law enforcement capacity.

To advance on the resistance continuum, rebels would need to 

acquire and use more lethal weaponry, which would also likely change 

the organizational character of the resistance. For instance, a rebellion 

on the cusp of insurgency will typically feature the planned, concerted, 

and focused use of lethal force against the government, in contrast to 

the indiscriminate, unplanned, and ad hoc use of violent but not necessarily lethal force against the government. The Tuareg in Northern 

Mali from 2006 to 2009 are a good example of the upper end of the 
58

Legal Implications of the Status of Persons in Resistance

rebellion threshold, as many events in Mali began to resemble an insurgency, at least at the lower level of that category.

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

Mali

(2006–2009) Hypothetical based on real event

Actual event

An initial period in 2006 featured raids by Tuareg rebels, called 

the Democratic Alliance for Change, which lasted from May until an 

accord was reached in July.71,72 A separate Tuareg faction, the NigerMali Tuareg Alliance, rejected the accord and attacked garrisons and 

kidnapped government troops in May 2007.73 Hostilities continued sporadically, usually consisting of nighttime raids by Tuaregs during which 

Tuareg rebels stole weapons, kidnapped soldiers, and commandeered 

resources.74 The Malian government and Tuareg rebels negotiated a 

truce in July 2008. The truce failed to include an influential Tuareg 

leader who splintered off and renewed hostilities in 2009, until the 

Malian government and his group reached a cease-fire.75

This example illustrates the upper end of rebellion on the continuum and provides an example that is the closest to insurgency. Note 

that the argument can be made that the willingness of the Malian government to engage in negotiations with the rebels, and the rebels’ ability to engage the government in negotiations, may indicate a level of 

organization and intensity of hostilities required to meet the threshold of insurgency. However, the negotiations could also be seen as an 

attempt by the Malian government to relieve tensions and reduce the 

likelihood of the rebellion becoming an insurgency.

The Malian rebels raided government posts to steal weapons, kidnap 

soldiers, and take resources. Still, this type of activity is distinct from 

the kind of open engagements featured during an insurgency, such 

as Kosovo Liberation Army (KLA) firefights with the Serbian armed 

forces. Casualties were suffered by both sides, but a raid is arguably 

different from an attack that lasts for several hours or days because it 

is purposefully short term and isolated. In contrast, the armed engagements between the KLA and Serbian armed forces may have been 

separated by days at a time, but overall, they represented protracted 

hostilities. Raids, it can be argued, end when the objective is accomplished or when a leader commands retreat; the hostilities are not singular and protracted but, rather, are multiple, distinct, and short term.

The raids also suggest the fractured nature of the Tuareg rebels’ 

organizational structure. The Tuaregs consist of multiple factions 
Chapter 4. Rebellion

59

operating independently of each other, and each faction within the 

Tuaregs may have its own hierarchy, but the question is whether the 

armed actions and raids are conducted under something like a military 

command. The KLA had a very clear chain of command to which its 

members largely adhered. For the Tuareg violence to be considered 

an insurgency would require making the argument that their internal 

organizational structure sufficiently mimicked a military command 

such that one could say that they operated under a responsible command. The Tuareg rebels are commonly characterized as disorganized 

and splintered. As noted, one group will reach a cease-fire or peace deal 

with the government, while another will reject it and continue fighting. 

The reasons for this lack of organization are not relevant to the legal 

status of members of the rebellion. The relevance to their legal status is 

the failure of the group to meet the threshold of organizational capacity required for constituting an insurgency and triggering Common 

Article 3 protections.

In the least intense permutations of rebellion, participation on the 

side of the rebels would constitute UW, whereas participating with the 

government would be FID. In the case of Honduras, the United States 

continued its monetary and materiel aid to Tegucigalpa. This aid was 

not equivalent to training the Honduran police or military to control 

the protests or working alongside Honduran authorities to suppress 

the protests. Were US personnel to work alongside or advise the Honduran authorities, their status while in the country would depend on 

the agreements reached between Honduras and the United States to 

provide that assistance and permit US personnel to enter the country. 

US personnel cannot arrive in Honduran territory without justification 

because doing so would violate Honduras’s sovereignty and interfere 

in its internal affairs. As discussed, the typical agreements will divide 

jurisdiction between sending and receiving states depending on which 

state’s law an act potentially violates. Recall that IHL has not yet been 

triggered, so armed service members may not invoke the combatant’s 

privilege if they use deadly force, and the protesters retain the same 

rights that they have during peacetime.o

Assume that US personnel are present in a country without consent 

or knowledge of the host nation. If, in this scenario, US military personnel support the rebels, they can be treated in the same fashion as the 

rebels because there is no provision of IHL yet in place to guarantee 

o Interim President Micheletti enacted emergency measures that suspended numerous civil rights, including the right not to be subject to indefinite detention without cause. 

US personnel in that scenario would not detain persons because they have no authority in 

that territory and their authority is articulated by the agreement, but they could presumably deliver subdued and arrested persons to the native authorities for them to make a 

decision whether to detain indefinitely.
60

Legal Implications of the Status of Persons in Resistance

minimum protections for those resisting the government. Only domestic law would apply, as modified by international law commitments such 

as human rights and diplomatic treaties and the customary international law equivalents of human rights treaties and diplomatic treaties. 

Because the combatant’s privilege and POW status do not apply in the 

absence of an international armed conflict, and because there is no 

armed conflict, these protections do not apply in scenarios like the 

protests in Honduras or Brazil. If these personnel are arrested and 

detained by Honduran or Brazilian law enforcement personnel, they 

would receive the same protections as local protesters unless and until 

their citizenship is revealedp or US diplomatic personnel take proactive 

steps to protect them or obtain their release.

ENDNOTES

1 Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (Cambridge, UK: University of Cambridge, 2012), 10.

2 Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 96 (Int’l Crim. Trib. for the Former Yugoslavia October 2, 

1995).

3 Gabor Rona, “An Appraisal of U.S. Practice Relating to ‘Enemy Combatants,’ ” Yearbook 

of International Humanitarian Law 10 (2007): 241.

4 Dominic Hoerauf, “The Status of Libyan Rebels Under the Laws of War: A Litmus Test 

for the Lawfulness of NATO’s Libyan Engagement Under U.N. Resolution 1973,” Phoenix 

Law Review 6 (2012): 103.

5 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 36 (1960).

6 U.N. Charter, art. 51; Protocol Additional to the Geneva Conventions of 1949, and relating to the Protections of Victims of Non-International Armed Conflicts (Protocol II) art. 

1(1), December 12, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].

7 U.S. Const. art. I, § 8.

8 “Controversial Russia Treason Law Takes Effect,” Aljazeera.com, last modified November 14, 2012, http://www.aljazeera.com/news/europe/2012/11/20121114203355680772.

html.

9 18 U.S.C. §§  231, 2101, 2381–2390, 2332, 2332a, 2332b, 2332f, 2332g, 2339A, 2339B, 

2339C, 2339D (2006).

10 Rona, “An Appraisal of U.S. Practice Relating to ‘Enemy Combatants’,” 241.

11 Hoerauf, “The Status of Libyan Rebels Under the Laws of War,” 114.

12 Inter-Amer. Comm’n H.R., Report on Terrorism and Human Rights, OEA/Ser.L/V/

II.116 doc. 5 rev. 1 corr., ¶ 68 (2002).

13 Protocol Additional to the Geneva Conventions of 1949, and relating to the Protections 

of Victims of International Armed Conflicts (Protocol I) art. 43(2), December 12, 1977, 

1125 U.N.T.S. 609 [hereinafter Protocol I].

14 Protocol II, art. 6.

p See Vienna Convention on Consular Relations Article 36(1)(b), requiring the host 

nation to inform the individual’s consulate of his detention if he or she so requests.76
Chapter 4. Rebellion

61

15 Report on Terrorism and Human Rights, ¶ 70.

16 Waldemar A. Solf, “The Status of Combatants in Non-International Armed Conflicts 

Under Domestic Law and Transnational Practice,” American University Law Review 33 

(1983–1984): 59.

17 Robert D. Powers, “Insurgency and the Law of Nations,” JAG Journal 16 (1962): 57.

18 Henry W. Halleck, Halleck’s International Law, or, Rules Regulating the Intercourse of States in 

Peace and War 1: chap. 14 §§ 5, 9 (New York: D. Van Nostrand, 1861).

19 Ibid., chap. 3, § 1.

20 Ibid., chap. 4, §§ 18–19, chap. 14, § 18.

21 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 36.

22 Posse Comitatus Act, 18 U.S.C. § 1385 (2006).

23 10 U.S.C. § 375 (2006).

24 U.S. Const. art. I, § 8, cl. 15.

25 10 U.S.C. §§ 331–336 (2006); Posse Comitatus Act, 18 U.S.C. § 1385 (2006).

26 Halleck, International Law, chap. 4, §§ 18–19.

27 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States 

and the Protection of Their Independence and Sovereignty, G.A. Res. 2131 (XX), U.N. 

Doc. A/RES/20/2131 (December 21, 1965).

28 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, G.A. 

Res. 2625 (XXV), A/RES/25/2625 (October 24, 1970).

29 Charter of the Organization of American States art. 18, April 30, 1948, 2 U.S.T. 2394.

30 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 

Judgment, 1986 I.C.J. 14, ¶  246 (June 27). See ¶¶  202–209 for the Court’s discussion of 

the contours of this principle.

31 Armed Activities on Territory of Congo (Dem. Rep. Congo v. Uganda), Judgment, 

2005 I.C.J. 168 (December 19).

32 The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812).

33 Steven J. Lepper, “A Primer on Foreign Criminal Jurisdiction,” Air Force Law Review 37 

(1994): 171.

34 Ian Brownlie, Principles of Public International Law (New York: Oxford University Press 

Inc., 1998), 289.

35 Wilson v. Girard, 354 U.S. 524, 529 (1957).

36 Andrew Gillman and William Johnson, eds., Operational Law Handbook (Charlottesville, 

VA: United States Army Judge Advocate General’s Legal Center and School, 2012), 121.

37 Richard J. Erickson, “Status of Forces Agreements: A Sharing of Sovereign Prerogative,” 

Air Force Law Review 37 (1994): 139.

38 Gillman and Johnson, eds., Operational Law Handbook, 121.

39 Ibid., 120.

40 Ibid.

41 Lepper, “A Primer on Foreign Criminal Jurisdiction,” 170–171.

42 Gillman and Johnson, eds., Operational Law Handbook, 120.

43 John W. Egan, “The Future of Criminal Jurisdiction Over the Deployed American Soldier: Four Major Trends in Bilateral U.S. Status of Forces Agreements,” Emory International Law Review 20 (2006): 295–297.

44 Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of 

their Forces, June 19, 1951, 2 U.S.T. 1792 [hereinafter NATO SOFA].
62

Legal Implications of the Status of Persons in Resistance

45 Restatement (Third) of the Foreign Relations Law of the United States §  461 cmt. f

(1986).

46 Gillman and Johnson, eds., Operational Law Handbook, 120.

47 US Department of Defense, DoD Status of Forces Policy and Information: DoD Directive 5525.1, 

August 7, 1979, available at http://www.dtic.mil/whs/directives/corres/pdf/552501p.pdf; 

R. Chuck Mason, Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized? Report for Congress, RL 34531 (Washington, DC: Congressional Research Service, 

March 2012), 2.

48 Gillman and Johnson, eds., Operational Law Handbook, 120; Richard J. Erickson, “Status of Forces Agreements: A Sharing of Sovereign Prerogative,” Air Force Law Review 37 

(1994): 140.

49 Erickson, “Status of Forces Agreements,” 143.

50 Gillman and Johnson, eds., Operational Law Handbook, 120n.

51 Ibid., 120–121.

52 NATO SOFA art. VII(2)(a).

53 Ibid., art. VII(2)(b).

54 Ibid., art. VII(3)(a)(i).

55 Ibid., art. VII(3)(a)(ii).

56 NATO SOFA art. VII(3)(b).

57 Ibid., art. VII(3)(c).

58 Gillman and Johnson, eds., Operational Law Handbook, 121.

59 Ibid.

60 Ibid., 122.

61 US Department of Defense, Status of Forces Policy and Information: DoD Directive 5525.1, 

August 7, 1979), available at http://www.dtic.mil/whs/directives/corres/pdf/552501p.

pdf.

62 US Department of the Army, Status of Forces Policies, Procedures, and Information: Army Regulation 27-50, December 15, 1989, available at http://www.apd.army.mil/pdffiles/r27_50.

pdf.

63 Annie Murphy, “ ‘Who Rules in Honduras?’ Coup’s Legacy of Violence,” National 

Public Radio, February 12, 2012, http://www.npr.org/2012/02/12/146758628/

who-rules-in-honduras-a-coups-lasting-impact.

64 Murphy, “ ‘Who Rules in Honduras?’ ”

65 Alex Renderos and Tracy Wilkinson, “Protests Mount in Honduras after Military Coup,” 

Los Angeles Times, June 30, 2009, http://articles.latimes.com/2009/jun/30/world/

fg-honduras-coup30.

66 Simon Romero and William Neuman, “Sweeping Protests in Brazil Pull in an Array of 

Grievances,” New York Times, June 20, 2013, http://www.nytimes.com/2013/06/21/world/

americas/brazil-protests.html?pagewanted=all.

67 Ibid.

68 Ibid.

69 Jenny Barchfield, “Brazil Leaders to Meet as Protests, Violence Grow,” USA Today, June 21, 

2013, http://www.usatoday.com/story/news/2013/06/21/brazil-protests/2444915/.

70 Romero and Neuman, “Sweeping Protests in Brazil Pull in an Array of Grievances.”

71 “MALI: A Timeline of Northern Conflict,” IRIN, http://www.irinnews.org/report/95252/

mali-a-timeline-of-northern-conflict.

72 “Mali Profile,” BBC News, June 19, 2013, http://www.bbc.co.uk/news/world-africa-13881978.

73 “MALI: A Timeline of Northern Conflict.” 

74 Tiemoko Diallo, “Gunmen Attack Mali Outpost, Seize Soldiers, Weapons,” Reuters, 

July 19, 2008, http://www.reuters.com/article/2008/07/19/idUSL19400798.
Chapter 4. Rebellion

63

75 Hamid Ould Ahmed, “Mali Government, Tuareg Agree Ceasefire Deal-Algeria,” Reuters, 

July 21, 2008, http://www.reuters.com/article/2008/07/21/idUSL21846343._CH_.2400.

76 Vienna Convention on Consular Relations art. 36(1)(b), April 24, 1963, 21 U.S.T. 77 

(entered into force March 19, 1967).

CHAPTER 5.

INSURGENCY

Chapter 5. Insurgency

67

Insurgency is the first category on the resistance continuum that 

triggers the application of international humanitarian law (IHL). 

Insurgencies are categorized here as having the level of qualified violence (in terms of duration, intensity, and geographic controla

) and 

the internal organization within the insurgent body required to meet 

the threshold of noninternational armed conflict (NIAC). A state’s 

recognition of insurgency constitutes acknowledgement of the factual 

conditions in another country that meet these criteria, but third-party 

recognition neither extends additional rights or duties to insurgents, 

nor grants them international status. Therefore, domestic law of the 

nation where the insurgency is occurring remains the predominant 

legal structure, with Common Article 3, and, if applicable, Additional 

Protocol II protections as an overlay that apply to all parties involved in 

the insurgency.

Whether an internal conflict constitutes an insurgency depends on 

whether the conflict has sufficient intensity and the group opposing 

the standing government has sufficient organization. Whether a person is a civilian or unprivileged belligerent is determined by whether 

he or she directly participates in hostilities, engages in a continuous 

combat function, or both. Those who are participating in this way constitute legitimate targets for state forces; however, it should be noted 

that states interpret direct participation differently. The law of NIAC 

binds both parties in the conflict, meaning that insurgents and government forces are entitled to minimum protections by the opposing side 

upon capture. When foreign troops support an insurgency, they subject 

themselves to losing the combatant’s privilege and coming under the 

jurisdiction of the host nation until the conflict rises to the level of 

an international armed conflict (IAC). The conflict may become an 

IAC under two theories: the simple introduction of troops creates an 

IAC, or the discovery of foreign troops assisting an insurgency leads to 

hostilities that rise to the level of an IAC. Foreign troops assisting the 

standing government are equally subject to the domestic law of the host 

nation unless an agreement between the sending and receiving states 

dictates otherwise. Nations experiencing insurgency retain their lawful 

authority, as well as full discretion regarding measures to take against 

insurgent forces consistent with international law.

a As hostilities rise in their intensity and duration, the resistance will likely both 

acquire greater control over more territory as a result of succeeding and require greater 

control over more territory from which to operate and within which to organize and 

administer itself.
68

Legal Implications of the Status of Persons in Resistance

FACTORS THAT DETERMINE AN INSURGENCY

The factual characteristics of an insurgency are difficult to determine, in large part because at its lowest level, an insurgency may look 

much like a rebellion, and in its most intense manifestation, it may 

look like a belligerency.1,2,3 Scholars agree that insurgency represents a 

step above rebellion, with the distinction between these two categories 

being based on facts on the ground.b Unlike a rebellion, the insurgency 

is organized enough to sustain a certain level of hostilities and the government can no longer suppress the resistance.

International case law defines an armed conflict as occurring 

“whenever there is a resort to armed force between States or protracted 

armed violence between governmental authorities and organized armed 

groups or between such groups within a State.”6 This demonstrates the 

threshold for armed resistance to move from rebellion to insurgency.

The test for determining whether an armed conflict exists becomes 

most relevant at this point, with the two parts of the test comprising 

(1) qualified violence (based on intensity, duration, and scope), and 

(2) identifiable, organized parties.7, c This test comes from international 

case law interpreting the language and intent of Common Article 3 of 

the Geneva Conventions and Additional Protocol II. It is important to 

bear in mind, however, that Common Article 3 and Additional Protocol II are different types of NIACs and their criteria differ. Additional 

Protocol II applies only to conflicts between a state and a nonstate actor, 

but not to conflicts between such nonstate actors themselves (where 

Common Article  3 does apply). NIACs under Additional Protocol  II 

occur when Common Article 3 criteria are met but the armed forces of 

a nonstate actor are organized enough to exercise control over a part 

of the state’s territory “as to enable them to carry out sustained and 

concerted military operations and to implement the Protocol.” A Common Article 3 NIAC does not require territorial control of this nature. 

Nonetheless, the point remains that, in light of both the interpretation 

b Falk acknowledges that “almost all that can be said about insurgency is that it is 

supposed to constitute more sustained and substantial intrastate violence that is encountered if the internal war is treated as a ‘rebellion’ ”;4

 Powers describes repeating factors 

such as “the size of the armed forces of the rebels, the nature of the potential government 

they have established, the success of their arms, and the territory they control . . . Equally 

important is the inability of the parent government to control and suppress the rebellion. 

If an insurgent force meets with some success so that they can control part of the country, 

establish a new or counter civil government, and field an armed force that is able to resist 

the efforts of the recognized government to suppress them, then logic demands that some 

sort of status be given the rebel forces.”5

c There is support for the idea that abundance in one factor can compensate for deficiency in the other. However, this interpretation has not been consistently applied in case 

law, and more compelling cases will satisfy both factors.8
Chapter 5. Insurgency

69

in the commentary that Common Article 3 applies as broadly as possible and that the object and purpose of IHL is to lessen or remove the 

suffering of war, the bar for NIACs of either type cannot be as high as 

that for belligerency. Belligerency raises the conflict to an international 

level; therefore, insurgencies must be those armed conflicts identified 

as triggering the IHL of NIACs.

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

Kosovo Liberation

Army (KLA) (1998) Hypothetical based on real event

Actual event

A historical example is the International Criminal Tribunal for the 

Former Yugoslavia (ICTY)’s finding in Prosecutor v. Limaj that an armed 

conflict existed in Kosovo between the Kosovo Liberation Army (KLA) 

and the Serbian armed forces. That tribunal determined that, by the end 

of May 1998, the hostilities amounted to an armed conflict. With regard 

to intensity, before that time, the hostilities included brief (twenty minutes to a full day) exchanges of fire, planned surprise attacks using 

heavy weapons and explosives, and skirmishes that resulted in one group 

taking control of a village or particular physical terrain (in this case a 

gorge) or valuable infrastructure (in this case two significant roads).9,d

The defense characterized the events after the end of May 1998 as sporadic, disparate, and geographically diluted,10 as well as one-sided.11 The 

chamber rejected these characterizations in favor of viewing the KLASerbian engagements as constant clashes that occurred across a wide 

swath of territory and over a significant period of time, and to which the 

KLA was able to offer strong and effective resistance.12

Limaj highlights some factors to consider for the threshold of insurgency, including the ability to mount a credible combat threat, the geographic extent and temporal extent of the hostilities, the frequency of 

engagement in the field, and the purpose of the efforts by the forces 

of the standing government, although this last factor is informative but 

not essential to the final determination.13,e With regard to organizad In Prosecutor v. Limaj, in paragraphs 152 through 167, the chamber details the hostilities it determined constituted an armed conflict. The chamber took specific notice 

that the KLA was in constant armed clashes with substantial Serbian forces across a wide 

geographic scope (Prosecutor v. Limaj at ¶ 172). Additionally, the chamber noted that the 

Serbian forces used heavy weaponry in a committed conflict directed at controlling and 

quelling the KLA (Prosecutor v. Limaj at ¶ 172).

e In fact, the chamber found this factor irrelevant. Indicators of purpose, such as the 

number of troops and weaponry used, are also relevant for determining the intensity of 

the conflict.
70

Legal Implications of the Status of Persons in Resistance

tion, the KLA progressed from a loose group of leaders with a handful 

of civilian followers to an organized structure. It established a central 

command group called the General Staff, as well as decentralized units 

based on existing geographical and political partitions (which they 

called zones) and led by designated commanders. The KLA created a 

command hierarchy that carried orders down from the General Staff 

to the zone commanders and reported information from the zone commanders up to the General Staff. It instituted positions charged with 

professionalizing and maintaining discipline through the ranks, issued 

official statements, and participated in peace/cease-fire/reconciliation 

negotiations led by third-party states.14,f

This elaborate organizational structure was not perfectly implemented, and it was not always adhered to by the KLA. The defense 

in the case introduced into evidence concerns that the military police 

never took disciplinary action toward KLA members15 and that foreign 

diplomats and visitors expressed confusion about the KLA organizational structure.16 The chamber found, however, that an imperfectly 

operating structure and a lack of clarity to outside observers do not of 

themselves demonstrate the lack of sufficient organization.17 The point 

is that insurgent groups need not have a military apparatus as “organized” as a state’s military apparatus for the situation of resistance to 

move from rebellion to insurgency.

RECOGNITION OF INSURGENCY AND THE STATUS 

OF PARTIES

To recognize an insurgency is to recognize a NIAC, acknowledging 

an internal war with which the recognizing entity must engage, not out 

of legal obligation but of practical necessity.18,19,g Except for minimum 

IHL standards, such recognition does not bring with it any legal rights 

f The chamber highlighted certain discrete factors as particularly indicative of organization: interaction with international representatives, the use of a uniform, the ability to 

procure arms, the provision of military training to new recruits, the ability to recruit new 

members, the establishment of rules of discipline and a police force to enforce them, the 

creation of ranks and defined duties, the promulgation of regulations for organization 

and conduct, and a chain of command.

g “Recognition of insurgency means acknowledgement of the existence of an armed 

revolt of grave character and the incapacity, at least temporarily, of the lawful government 

to maintain public order and exercise authority over all parts of the national territory.”20
Chapter 5. Insurgency

71

or duties for the parties to the conflict or for third-party states.h The 

parameters and terms of the recognition define how the state that recognizes the insurgent group will engage with the insurgent group.23,24,i

Traditionally, states have not been obligated to extend any legal rights 

to insurgents.26,27 Before 1949, states applied the law of war to internal 

conflicts out of considerations of humanity in order to lessen the harsh 

impacts of war. Recognition of insurgency does not bestow belligerent 

privileges such as the combatant’s privilege or prisoner of war (POW) 

status. It triggers the minimum protections of IHL and presents an 

opportunity for the parties to the conflict, as well as third-party states, 

to define what rules apply and what relations they will have.

No Impact on State Authority to Suppress Insurgency

States are reluctant to accord belligerent status to insurgents28,29,30,31,32

because doing so provides them with the combatant’s privilege and the 

presumptive right to POW status.33 Along with this is that it grants dissident groups license to kill and destroy in the name of a legitimate 

war.34,35 On the contrary, insurgent actions represent treasonous acts 

that foment insurrection; they directly challenge the lawful government 

without legitimate justification.36 The drafting process of the Geneva 

Conventions considered versions of Common Article 3 that would have 

extended more protections, including the combatant’s privilege, to dissident groups.37 The imperative to uphold sovereignty and fear of the 

drastic consequences of legitimating insurgents is clear from the last 

sentence of Common Article 3: “The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

Accordingly, the commentary makes clear that applying Common 

Article 3 does not impinge on a state’s right to suppress insurrection 

or infringe on a state’s duty to restore or maintain law and order.38

During insurgency, states retain their powers and rights to prosecute 

insurgents according to their domestic law.39,40

h Lauterpacht states: “Recognition of insurgency creates a factual relation in that 

legal rights and duties as between insurgents and outside States exist only insofar as they 

are expressly conceded and agreed upon for reasons of convenience, of humanity, and of 

economic interest.”);21 see also Pictet, clarifying that “no sort of immunity is given to anyone under this provision.”22

i Falk states that “insurgency is a flexible instrument for the formulation of claims 

and tolerances by third-party states. If it is used to protect economic and private interests 

of nationals and to acknowledge political facts arising from partial successes by insurgents 

in an internal war, then it can adjust relative rights and duties without amounting to a 

mode of illegal intervention in internal affairs.”25
72

Legal Implications of the Status of Persons in Resistance

THE IMPACT OF INTERNATIONAL HUMANITARIAN 

LAW ON THE STATUS OF PERSONS IN INSURGENCY

The question of what constitutes a combatant becomes particularly 

important once resistance has reached the level of an armed conflict.

A combatant is someone who, by virtue of membership 

in the armed forces or associated militia, possesses a 

“combatant’s privilege.”  .  .  . A combatant is immune 

from criminal responsibility for lawful acts of belligerency but may be prosecuted for war crimes such as targeting civilians or using prohibited means of combat, 

including biological weapons or rape. In turn, a combatant may be targeted and detained without charge 

or trial for the duration of the armed conflict, but 

is entitled to prisoner of war status and treatment in 

accordance with the Third Geneva Convention.41

Common Article 3 does not require that a state be one of the parties to the NIAC, but Additional Protocol II does require that a state 

be one of the parties to the conflict. Accordingly, in a NIAC within 

the meaning of Additional Protocol II, only one party to the conflict 

has armed forces, the legitimate government. Only the members of 

that armed force receive the combatant’s privilege, while those fighting on behalf of the insurgents receive no equal status. This is largely 

because insurgents have no international status; they have only domestic status.42,43 It must be remembered that insurgencies have only been 

partially internationalized; they remain domestic, internal conflicts, 

governed chiefly by the domestic law of the host nation. What, then, is 

the status of insurgents?

The Status of Insurgents

The law regulating NIACs does not address combatant status.44,45

It provides protections for civilians and those placed hors de combat, or 

outside of combat, but there must be a counter-category to civilians 

if an armed conflict exists and the principle of distinction is to have 

meaning. Applying the distinction set down in Article 4 of the Third 

Geneva Convention appeals as a ready and capable answer. However, by 

the terms of the Convention, it applies only to IACs.

The International Committee of the Red Cross (ICRC) categorizes 

civilians as members of organized armed groups when they assume a 

continuing combat function involving direct participation in hostilities.46 They are belligerents in the sense that they take up arms and 
Chapter 5. Insurgency

73

fight. Yet, recall that these groups are not armed forces and, therefore, 

are not combatants, meaning that they do not receive the same privileges that combatants are afforded. It follows that they are unprivileged 

belligerents, for they take up arms and fight but they do not receive the 

same privileges as combatants.47 However, it is important not to mistake their status as unprivileged for unlawfulness under international 

law. They have no international status, so if they are prosecuted for 

their combat activities (e.g., shooting, killing, and injuring government 

armed forces or destroying government property), they are prosecuted 

under domestic law for acts for which international law affords no protection or privilege.48 Acts punishable as violations of international law 

are those which violate treaty-based IHL and customary IHL, such as 

terrorism or targeting civilians.49

Common Article 3 applicable to NIACs and customary IHL protect persons taking no active part in hostilities, including those placed 

hors de combat. Left unprotected are persons taking an active part in 

hostilities. Thus, as the ICRC suggests, NIAC belligerents must be persons directly participating in hostilities or assuming a continuous combat function.50 Three approaches have been put forth for determining 

whether a civilian becomes a NIAC belligerent through direct participation or a continuous combat function.

One approach, by the International Criminal Tribunal for Rwanda, 

analogizes a standard from the commentary to Additional Protocol I. 

Under this approach, to be directly participating or serving a continuous combat function requires acts of war that by their nature or purpose are likely to cause actual harm to the personnel and equipment 

of the enemy forces.51 The ICRC puts forth a second approach in a 

three-part test: (1) meeting or exceeding 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 to 

the conflict.52 Finally, the ICTY determines direct participation on the 

basis of membership in a resistance group.53

To reiterate, insurgents remain subject to prosecution for their 

actions under domestic law, both as acts against the state and as criminal violations.54,55,56,57 Additionally, as belligerents, they may be targeted.58,59 And if captured, they are not afforded POW status, but they 
74

Legal Implications of the Status of Persons in Resistance

are owed the minimum protections afforded by Common Article  3, 

and, if applicable, Additional Protocol II.60,61,62,63,j

Insurgents, then, are unprivileged belligerents in a NIAC, subject to 

domestic law but protected by Common Article 3 and potentially Additional Protocol II if they are captured and detained. Common Article 3 

encourages special agreements between the parties to the conflict to 

ensure the protections of all or part of the remaining articles, and the 

commentary encourages the application of all or part of the remaining 

articles without special agreement.64,65 States are not obligated to extend 

protections beyond Common Article 3,66,67,68 but scholars have recognized it as a powerful tool of propaganda, reconciliation, or both.69,70

The Status of Military Personnel Assisting Insurgents—

Unconventional Warfare

Foreign assistance on the side of insurgents is an internationally 

wrongful act because it is an impermissible intervention and interference 

with the host nation’s internal affairs and its sovereignty.71 The wrongful 

conduct is attributable to the intervening state and will not implicate the 

status of the service members sent to perform the supporting role unless 

the acts are unlawful under international criminal law or the criminal 

law of the nation in which the military intervenes, in which case individual criminal responsibility would attach.72 SOFAs would normally provide the terms under which individuals would be prosecuted, but in these 

circumstances, states could decide the SOFA has been breached and its 

terms null and void, subjecting personnel to host nation prosecution.

Regarding the status of service members supporting insurgents in a 

NIAC, two theories predominate. The first theory places these foreign 

troops in the same position as insurgents.73,74 The rationale follows the 

same reasoning as applied to private individuals who voluntarily support 

insurgents in hostilities. Upon entering the territory of the host nation, 

the individual subjects himself or herself to the laws of that nation, with 

no protection but its domestic laws, and depending on that nation’s 

stance, either both international human rights law and IHL, or only 

one of those bodies of law.75,76 Common Article 3 does not distinguish 

between native or alien parties in an internal conflict, so it would protect both.77,78 The individuals would equally be unprivileged belligerents 

because private citizens of a state cannot gain combatant status and its 

attendant privileges without joining the armed forces of the state.79 The 

first theory considers foreign troops to be in the same position because 

j Provided, of course, that the host nation has signed and ratified Additional Protocol II. 

The ICRC reports that only three states have signed Additional Protocol II, and the United 

States has not yet ratified it. However, the US position is that many of the provisions of Additional Protocol II constitute customary international law and therefore apply without host 

nation ratification. See the Additional Protocols I and II section in the Appendices for more detail.
Chapter 5. Insurgency

75

no IAC has triggered the combatant’s privilege. Recall that the combatant’s privilege that shields soldiers from prosecution for murder and 

assault operates in armed conflicts to which their state is a party. Thus, 

as long as the sending state is not in an armed conflict with the host 

nation, the troops sent are not protected by the combatant’s privilege, 

and the host nation is not bound to accord them POW status.80

If the host nation works on the basis of this theory regarding the status of service members supporting insurgents in a NIAC, an additional 

question exists regarding the level and character of the troops’ involvement. This question parallels the distinction made above between civilians and NIAC belligerents. If these troops are directly participating 

in hostilities and performing a continuous combat function, they will 

be treated precisely like the insurgents discussed above. Yet, if their 

activities fall below the standard for direct participation in hostilities 

or a continuous combat function, then they should be deemed civilians 

and receive all the protections afforded to civilians under Common 

Article 3 and, if applicable, Additional Protocol II. However, the host 

nation may have laws in place regarding aiding and abetting or materially supporting insurgents’ crimes.81 It is unlikely that foreign troops 

would escape from such charges unless they would receive amnesty 

either as part of the standing government’s postconflict strategy or as a 

result of diplomatic negotiations.

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

Mexico (1929) Hypothetical based on real event

Actual event

To take an example, in 1929, before the 1949 Geneva Conventions, 

Mexico experienced an insurrection in which private US citizens participated of their own volition. US Secretary of State Henry L. Stimson 

instructed US Ambassador Dwight W. Morrow in Mexico to inform the 

Mexican government that the United States expected Mexico to treat 

any US citizens captured while supporting the insurgents as POWs.82

The stated rationale was to avoid a distressing and unfortunate accident or incident that might prove embarrassing to both governments.83

Contrasting examples can be found in the requests by the United 

States to Mexico in 1912 and to Greece in 1935 to grant only fair trials 

to Americans caught while assisting insurgents.84

According to the second theory regarding the status of service members supporting insurgents in a NIAC, the fact of foreign intervention 

through the assistance of insurgents triggers an IAC and the panoply of 
76

Legal Implications of the Status of Persons in Resistance

IHL to apply, including Geneva Convention III’s Article 4 on POWs.85,86

This theory hinges on the language of Common Article 2, namely the 

use of armed conflict instead of war as being a broader term that encompasses more forms of hostilities. Common Article 2 provides that the 

Geneva Conventions will apply to any armed conflict that may arise 

between two or more of the “High Contracting Parties,” even if the 

conflict is not recognized by one of the parties.87 This theory contends 

that “any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the 

meaning of Article 2, even if one of the Parties denies the existence of 

a state of war.”88 No minimum number of forces or level of slaughter 

need be met, nor need any fighting take place.89 All that is required is 

“for the armed forces of one Power to have captured adversaries falling 

within the scope of Article 4.”90 Under this theory, troops apprehended 

by standing government forces would need to be afforded POW status and protections. Diplomatic protections, such as negotiations for 

release, are not precluded under this theory.

The Status of the Standing Government

Scholars and commentators acknowledge that a government that 

faces an insurgency retains its sovereign rights and duties to restore law 

and order, because it, that is the standing government, has not yet in 

fact been supplanted.91,92,93,94 At the stage of NIAC, domestic law has 

not yet been supplanted by the full protections of IHL. The addition of 

Common Article 3 and Additional Protocol II to the applicable laws in 

no way impedes the host nation’s right or ability to apply its domestic 

laws.95,96 Instead, it retains full power and right to address and suppress 

the insurgency, within the bounds of customary IHL (such as the rule 

prohibiting the killing of civilians and the destruction of civilian property) and any human rights law to which the state has committed itself.97

Government officials and operatives who violate IHL, domestic law, 

customary IHL, or applicable IHRL should be subject to suit. Obstacles 

to prosecution will include official immunity acts in place in the host 

nation and the existence and integrity of a tribunal with jurisdiction. 

Whether postconflict tribunals will have personal and subject-matter 

jurisdiction, as well as whether official immunity will be a defense in 

those tribunals, are different questions than those of officials’ status 

during armed conflict. In a NIAC, standing government actors remain 

government officials, just as they are in peacetime, unless any changes 

occur because the government enacts emergency measures. Accordingly, their ability to act and the consequences of their actions would be 

assessed in the same manner as in peacetime.
Chapter 5. Insurgency

77

The Status of Military Personnel Assisting the Standing 

Government—Counterinsurgency

States are free to request assistance from other states in their internal affairs. Some argue that intervening on behalf of the standing 

government is a right of third-party states.98 Again, however, whether 

the sending of troops to support a counterinsurgency effort in another 

state violates international law will implicate the state itself, not the 

troops sent unless the troops’ actions violate international criminal 

or domestic criminal law, for which individuals would be criminally 

responsible. The troops sent to support counterinsurgency efforts enter 

the receiving state with the status of tourists, unless and until the sending and receiving states execute an agreement defining the status of 

those forces, including clarifying which state has jurisdiction in which 

scenarios.99,100 As just noted, but worth reiterating, troops abroad are 

subject to the domestic law of the host nation in the absence of a treaty 

or agreement establishing otherwise. This concerns only the relation 

between foreign troops and a host government.

The Status of Individuals Captured by Insurgents

The provisions of Common Article 3 bind insurgents.101,102 If they 

capture standing government actors or foreign government agents, 

they must treat them according to the provisions of Common Article 3. 

Recall that the language of Common Article  3 binds “each Party to 

the conflict” and not each party to the Convention. The commentary 

rests the argument for binding insurgent groups on the fact that their 

leadership claims to represent the country or part of the country.103

Insurgents should be incentivized to apply the IHL relevant in NIACs 

because doing otherwise would only prove that they are mere bandits 

and common criminals rather than legitimate contenders for the seat 

of government and depository of sovereignty. Additionally, the application of IHL by insurgents may afford them reciprocity from governments that are less than eager to recognize an insurgency and abide by 

IHL provisions.

Additional Protocol II poses a more difficult question. It provides 

for signing, ratification, and accession only by states,104 thereby precluding insurgent groups from acceding to it. This was not necessarily an 

oversight. Italy supported this view,105 and it comports with the law of 

treaties as traditionally understood.106 However, Belgium put forward a 

syllogism according to which Additional Protocol II would bind insurgents by way of Common Article 3: “The entire philosophy of the provisions of Common Article 3 is included in the Protocol. It is implicit 
78

Legal Implications of the Status of Persons in Resistance

that the same applies to the basic sovereign principle that the obligations of the Protocol are equally binding on both Parties to the conflict.”107 Thus, because the purpose of Additional Protocol  II was to 

develop and supplement Common Article 3, the jurisdiction of Common Article 3 is incorporated into Additional Protocol II, and so under 

this theory, it applies to insurgents on the same basis as it does to states. 

One scholar has anchored this argument in the principle of treaty law 

that creates rights and duties for third parties.108 Additional Protocol II 

binding insurgents means that standing government actors and foreign 

government agents captured by insurgents must receive the protections 

provided by those instruments. Whether a particular insurgency does 

in fact comply with these aspects of IHL will depend on each individual 

scenario. Some insurgent groups have the organization to support compliance, while others do not, and some possess an agenda that does not 

contemplate IHL at all. If an insurgency does comply with its IHL obligations, it will not be able to pass legal judgment on those it captures 

because it has no sovereign power, only de facto sovereign capacity.

The Status of the Kosovo Protection Forces

To further analyze the category of insurgency, it is useful to look at 

the role of North Atlantic Treaty Organization’s (NATO) peacekeeping 

forces, the Kosovo Protection Forces (KFOR), in Kosovo between 1998 

and 2000.109,110 The Kosovo Liberation Army (KLA) was an armed ethnic 

Albanian resistance that developed after President Slobodan Milosevic 

of the Federal Republic of Yugoslavia (FRY) revoked Kosovo’s status as 

an autonomous region. Milosevic’s government in Belgrade responded 

with a counterinsurgency campaign using ground operations that 

resulted in the destruction of villages and the killing of civilians suspected of supporting the KLA. The flight of ethnic Albanian refugees 

from Kosovo into Western Europe and Albania prompted NATO to 

act. In September  1998, NATO authorized an activation order for a 

limited air campaign to stop the systemic ethnic violence in Kosovo. A 

preliminary agreement with Milosevic that would have halted airstrikes 

in exchange for a reduction of forces in Kosovo, and an agreement to 

begin negotiating autonomy for Kosovo, never came to fruition. The 

United Nations (UN) Security Council adopted a resolution that called 

for the immediate withdrawal of Serbian forces from Kosovo. Within 

months, Serbian forces mobilized near the Kosovo border, and the violence against civilian Albanians escalated, prompting NATO to begin 

airstrikes. The airstrikes were conducted without specific UN endorsement. The September resolution referenced Chapter  VII of the UN 

Charter, which permits the Security Council to authorize the use of 
Chapter 5. Insurgency

79

military force to maintain international peace and security, but the 

resolution did not specifically authorize these NATO airstrikes.

Approximately one year later, a peace settlement was prepared by 

several countries, including the United States and Russia, at the G-8 

economic summit. The settlement called for an immediate end to violence, deployment of an international security force, and withdrawal 

of all Yugoslav military and security forces from Kosovo. The Yugoslav 

government accepted the terms, and in June 1999 the UN endorsed 

the KFOR peacekeeping mission under Chapter VII of the UN Charter. 

Shortly thereafter, KFOR negotiated a demilitarization agreement with 

the KLA. 

However, the violence between ethnic Albanians from Kosovo and 

Kosovo-Serbs persisted even after KFOR entered. Except, unlike in the 

preceding months where the violence was largely committed by Serbians against ethnic Albanian civilians, now much of the violence was 

aimed at ethnic Serbs and committed by returning ethnic Albanian refugees. The peacekeeping mission was sent to maintain security, ensure 

the removal of Serbian forces from Kosovo, and disarm the KLA, but 

KFOR now faced violence by the KLA against ethnic Serbs. Despite 

the demilitarization agreement with the KLA, KFOR was faced with 

considerable violence. At one point, news outlets reported concerns 

that an “insurgency outside Kosovo’s border in southern Serbia had 

sprung up,” and that KFOR could end up in an “armed conflict” with 

ethnic Albanians.111 This comment raises several significant questions, 

particularly the following: (1) Did an armed conflict exist at the time 

NATO conducted airstrikes, and if so, what type and between what parties? (2) Did an armed conflict exist when KFOR entered Kosovo, and 

if so, what type and between what parties? (3) What was KFOR’s status? 

(4) Did the nature of KFOR’s mission as a peacekeeping operation factor into that determination? (5) Did the type of armed conflict change 

when KFOR encountered new violence by the KLA against Serbs? (6) 

What was the status of individual members of the US military operating within KFOR?

The ICTY found in Prosecutor v. Limaj that an armed conflict existed 

in 1998 between the KLA and the Serbian armed forces of the FRY. 

Because Kosovo was only a geographic region and not an independent 

state, the armed conflict was therefore a NIAC. However, for the period 

during which NATO conducted airstrikes to compel Serbian forces to 

retreat from Kosovo, the conflict arguably became an IAC because the 

NATO airstrikes targeted Serbian forces on behalf of ethnic Albanians, 

meaning that state forces under NATO became engaged against state 

forces of the FRY. The NATO airstrikes may have been in support of 

prior UN decisions calling for an immediate cessation to hostilities, but 
80

Legal Implications of the Status of Persons in Resistance

the airstrikes themselves were not authorized by the UN Security Council and constituted military intervention against the FRY. 

When KFOR entered the country in June of 1999, a peace agreement had been negotiated, but because hostilities continued between 

the parties, the armed conflict technically had not ceased. An armed 

conflict may persist beyond the cessation of active hostilities because 

the general cessation may not signify the end of all aggressive actions. 

This was certainly the case in Kosovo, with ethnic Albanians and Serbs 

engaged in violence after the June 1999 peace settlement and in the 

presence of NATO peacekeeping forces. It was at this point that KFOR’s 

mission to protect ethnic Albanians against Serbian forces confronted 

the reality that armed Albanians were attacking Serbs. 

So, presuming an armed conflict continued to exist, how did 

KFOR’s presence affect whether it was an IAC or a NIAC, and what protections would the national forces comprising KFOR receive? The UN 

has asserted in the past that peacekeeping forces should not be considered combatants or a party to a conflict because they are not engaged 

in offensive military actions.112 However, peacekeeping operations have 

become more complex and have at times required the assertive use 

of force under Chapter VII, so it is generally accepted that LOAC will 

apply to a UN operation (1) if there is an armed conflict (IAC or NIAC) 

in the area of its deployment and (2) if the UN forces actively engage 

in the conflict outside of limited self-defense, whether in support of 

one side or neither side.113 The argument in such a situation is that 

the peacekeeping forces become a party to the conflict through the 

use of force. UN policy in 1999 under Secretary General Kofi Annan 

supported the broader view that LOAC applied to peacekeeping operations, even when the use of force is permitted in self-defense.114,k

In this scenario, KFOR had to use force against both the KLA and 

Serbian armed forces. From this perspective, it could be argued that it 

was an IAC because it would feature state forces on both sides of the 

conflict (i.e., KFOR component forces against Serbian armed forces). If 

that is the case, then KFOR (and US military personnel within KFOR) 

would be afforded POW status and LOAC applies. On the other hand, 

k In practice, this policy has not been consistently applied to situations on the 

ground. Notably, UN actions in Ivory Coast in 2011 seem to fulfill these criteria, but LOAC 

was not applied. A UN press release states that UN forces “undertook a military operation 

to prevent the use of heavy weapons which threaten the civilian population of Abidjan.” 

The operation involved airstrikes, the point of which was to protect civilians and urge former President Gbagbo to step aside and allow the newly elected President Ouattara to take 

office, which arguably positioned the UN against Gbagbo, removing its status as a neutral 

party. However, the secretary general maintained that the circumstances did not create an 

armed conflict by stating, “Let me emphasize that UNOCI [United Nations Operation in 

Côte d’Ivoire] is not a party to the conflict.”115
Chapter 5. Insurgency

81

once the NATO airstrikes ceased, the subsequent conflict between 

the KLA and the Serbian armed forces was a NIAC, and when KFOR 

entered in June 1999, the residual hostilities were those stemming from 

this underlying NIAC. It could then be argued that KFOR’s presence 

as peacekeepers did not alter the nature of the underlying conflict 

because KFOR entered Kosovo to instill peace by taking neither side. 

Under this argument, it remained a NIAC until the hostilities between 

the KLA and the Serbian armed forces completely ceased. Still, KFOR’s 

active engagement in the conflict, whether it was an IAC or NIAC when 

KFOR actively engaged, would invoke LOAC protections, at least on 

the basis of the UN policy at that time. If it was a NIAC and KFOR’s 

presence did not create an IAC, then KFOR (and US military personnel within KFOR) would be afforded IHL protections of Common 

Article 3, but perhaps also those of Additional Protocol II. Given that 

the KLA was able to carry out sustained and concerted military operations, it is likely the armed conflict would meet the higher threshold 

of a NIAC within the meaning of Additional Protocol II. However, this 

question was not addressed by the ICTY in Limaj, as the court ruled 

only that there was an armed conflict. The nature of the armed conflict 

did not matter for consideration of the specific questions presented for 

the court’s determination.

ENDNOTES

1 Robert D. Powers, “Insurgency and the Law of Nations,” JAG Journal 16 (1962): 55–56.

2 Anthony Cullen, “Key Developments Affecting the Scope of Internal Armed Conflict in 

International Humanitarian Law,” Military Law Review 183 (2005): 71.

3 Richard A. Falk, “Janus Tormented: The International Law of Internal War,” in International Aspects of Civil Strife, ed. James N. Rosenau (Princeton, NJ, Princeton University 

Press, 1964), 199.

4 Ibid.

5 Powers, “Insurgency and the Law of Nations,” 55.

6 Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (Int’l Crim. Trib. for the Former Yugoslavia October 2, 

1995).

7 Ibid.

8 Dominic Hoerauf, “The Status of the Libyan Rebels Under the Laws of War: A Litmus 

Test for the Lawfulness of NATO’s Libyan Engagement Under U.N. Resolution 1973,” 

Phoenix Law Review 6 (2012): 96.

9 Prosecutor v. Limaj, Case No. IT-03-66-T, Judgment, ¶¶ 135–152 (Int’l Crim. Trib. for 

the Former Yugoslavia November 30, 2005).

10 Ibid., ¶ 168.

11 Ibid., ¶ 169.

12 Ibid., ¶¶ 169–172.

13 Prosecutor v. Limaj, ¶ 170.
82

Legal Implications of the Status of Persons in Resistance

14 Ibid., ¶¶ 94–134.

15 Ibid., ¶ 116.

16 Ibid., ¶ 131.

17 Ibid., ¶ 132.

18 Powers, “Insurgency and the Law of Nations,” 56, 64–65.

19 Cullen, “Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law,” 72.

20 Erik Castren, Civil War (Helsinki: Suomalainen Tiedeakatemia, 1966), 212.

21 Sir Hersch Lauterpacht, Recognition in International Law (Cambridge, UK: Cambridge 

University Press, 1947), 276–277.

22 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, ed. Jean Pictet (Geneva: ICRC, 1960), 40.

23 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 43–44.

24 Castren, Civil War, 212.

25 Falk, “Janus Tormented: The International Law of Internal War,” 201–202.

26 Cullen, “Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law,” 74.

27 Waldemar A. Solf, “The Status of Combatants in Non-International Armed Conflicts 

Under Domestic Law and Transnational Practice,” American University Law Review 33 

(1983–1984): 59.

28 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 43 (1960).

29 Solf, “The Status of Combatants in Non-International Armed Conflicts Under Domestic 

Law and Transnational Practice,” 59.

30 Hoerauf, “The Status of Libyan Rebels Under the Laws of War,” 103.

31 Marco Sassoli, Antoine A. Bouvier, and Anne Quintin, How Does Law Protect in War, 2nd 

Ed. (Geneva: International Committee of the Red Cross, 2005), 143.

32 Jann K. Kleffner, “From ‘Belligerents’ to ‘Fighters’ and Civilians Directly Participating 

in Hostilities—On the Principle of Distinction in Non-International Armed Conflicts 

One Hundred Years After the Second Hague Conference,” Netherlands International Law 

Review 54 (2007): 321.

33 Solf, “The Status of Combatants in Non-International Armed Conflicts Under Domestic Law and Transnational Practice,” 58–59; Hoerauf, “The Status of the Libyan Rebels 

Under the Laws of War,” 103.

34 Solf, “The Status of Combatants in Non-International Armed Conflicts Under Domestic 

Law and Transnational Practice,” 59.

35 Hoerauf, “The Status of Libyan Rebels Under the Laws of War,” 103.

36 Solf, “The Status of Combatants in Non-International Armed Conflicts Under Domestic 

Law and Transnational Practice,” 59.

37 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 32–34.

38 Ibid., 40, 43.

39 Ibid., 40.

40 Solf, “The Status of Combatants in Non-International Armed Conflicts Under Domestic 

Law and Transnational Practice,” 59–60.

41 Gabor Rona, “An Appraisal of U.S. Practice Relating to ‘Enemy Combatants’,” Yearbook of 

International Humanitarian Law 10 (2007): 240.

42 Ibid., 241.

43 Hoerauf, “The Status of Libyan Rebels Under the Laws of War,” 103.
Chapter 5. Insurgency

83

44 Ibid.

45 Kleffner, “Principle of Distinction in Non-International Armed Conflicts,” 321.

46 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under 

International Humanitarian Law (Geneva: International Review of the Red Cross, 2009), 

20–40.

47 Rona, “An Appraisal of U.S. Practice Relating to ‘Enemy Combatants’,” 240–241.

48 Richard R. Baxter, “So-Called ‘Unprivileged Belligerency’: Spies, Guerillas, and Saboteurs,” British Yearbook of International Law 28 (1951): 340, 343.

49 Ibid., 338, 343.

50 Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, 33–34.

51 Prosecutor v. Kayishema & Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 179 (21 May 

1999); International Committee of the Red Cross, Commentary on the Additional Protocols 

to the Geneva Conventions, eds. Yves Sandoz, Christophe Swinarski, & Bruno Zimmerman 

(Geneva, Martinus Nijhoff Publishers, 1987), 619, ¶ 1944.

52 Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, 46–64.

53 Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgment, ¶ 639 (Int’l Crim. Trib. 

for the Former Yugoslavia May 7, 1997); Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgment, ¶180 (Int’l Crim. Trib. for the Former Yugoslavia March 2, 2000).

54 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 40, 43.

55 Hoerauf, “The Status of Libyan Rebels Under the Laws of War,” 114.

56 Baxter, “So-Called Unprivileged Belligerency: Spies, Guerillas, and Saboteurs,” 338.

57 Joseph B. Kelly, “Legal Aspects of Military Operations in Counterinsurgency,” Military 

Law Review 21 (1963): 108.

58 Rona, “An Appraisal of U.S. Practice Relating to ‘Enemy Combatants’,” 240.

59 Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, 74.

60 Rona, “An Appraisal of U.S. Practice Relating to ‘Enemy Combatants’,” 240–241.

61 Kelly, “Legal Aspects of Military Operations in Counterinsurgency,” 109.

62 Baxter, “So-Called Unprivileged Belligerency: Spies, Guerillas, and Saboteurs,” 344.

63 Powers, “Insurgency and the Law of Nations,” 57–58.

64 Geneva Convention (III) relative to the Treatment of Prisoners of War art. 3, August 12, 

1949, 75 U.N.T.S. 135 [hereinafter GC III].

65 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 42–43.

66 Ibid.

67 Powers, “Insurgency and the Law of Nations,” 56–58.

68 Cullen, “Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law,” 74.

69 Kelly, “Legal Aspects of Military Operations in Counterinsurgency,” 109–110.

70 Solf, “The Status of Combatants in Non-International Armed Conflicts Under Domestic 

Law and Transnational Practice,” 59.

71 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 

1986 I.C.J. 14, 124–126 (June 27).

72 Rep. of the Int’l Law Comm’n, 53rd Sess., April 23–June 1, July 2–August 10, 2001, U.N. 

Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10 (2001), chap. IV.E.1.
84

Legal Implications of the Status of Persons in Resistance

73 Kelly, “Legal Aspects of Military Operations in Counterinsurgency,” 112.

74 Talmadge L. Bartelle, “Counterinsurgency and Civil War,” North Dakota Law Review 40 

(1964): 277.

75 Kelly, “Legal Aspects of Military Operations in Counterinsurgency,” 112.

76 Bartelle, “Counterinsurgency and Civil War,” 278.

77 Kelly, “Legal Aspects of Military Operations in Counterinsurgency,” 112.

78 Bartelle, “Counterinsurgency and Civil War,” 277.

79 Rona, “An Appraisal of U.S. Practice Relating to ‘Enemy Combatants’,” 240.

80 GC III, art. 2. 

81 Bartelle, “Counterinsurgency and Civil War,” 265n46.

82 Secretary Stimson to Ambassador Morrow, no. 233, April 4, 1929, MS. Department of 

State, file 812.00 Sonora/513, cited in Green Haywood Hackworth, Digest of International 

Law (Washington, DC: Government Printing Office, 1940), 1:324.

83 Ibid.

84 Kelly, “Legal Aspects of Military Operations in Counterinsurgency,” 112, cited in Hackworth, Digest of International Law 1: 325, 2: 84.

85 Kelly, “Legal Aspects of Military Operations in Counterinsurgency,” 112–113.

86 Bartelle, “Counterinsurgency and Civil War,” 278–279.

87 GC III, art. 2. 

88 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 23.

89 Ibid.

90 Ibid.

91 Hoerauf, “The Status of Libyan Rebels Under the Laws of War,” 114.

92 Powers, “Insurgency and the Law of Nations,” 56–57.

93 Lindsay Moir, The Law of Internal Armed Conflict (New York: Cambridge University Press, 

2002), 65.

94 Powers, “Insurgency and the Law of Nations,” 57.

95 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 43.

96 Hoerauf, “The Status of Libyan Rebels Under the Laws of War,” 114.

97 Powers, “Insurgency and the Law of Nations,” 57–58.

98 Bartelle, “Counterinsurgency and Civil War,” 284 (citing ed. Herbert W. Briggs, The Law 

of Nations: Cases, Documents and Notes [Appleton-Century-Crofts, 1952], 922).

99 Bartelle, “Counterinsurgency and Civil War,” 285.

100Kelly, “Legal Aspects of Military Operations in Counterinsurgency,” 115–116.

101 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 37.

102Diplomatic Conference of Geneva of 1949, April 21–August 12, 1949, Final Record of the 

Diplomatic Conference of Geneva of 1949, vol. 2-B:124; Bartelle, “Counterinsurgency 

and Civil War,” 286.

103 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 37.

104Antonio Cassesse, “The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts,” International and Comparative Law Quarterly 30 (1981): 420.

105 Ibid., 421.
Chapter 5. Insurgency

85

106Vienna Convention on the Law of Treaties art. 2(1), May 23, 1969, 1155 U.N.T.S. 331 

(defining treaties as a written agreement between states governed by international law).

107Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, vol. 7, Summary Records of the Plenary 

Meeting (Bern, Switzerland: Federal Political Department, 1978), 76.

108Cassesse, “The Status of Rebels under the 1977 Geneva Protocol on Non-International 

Armed Conflicts,” 423–428.

109R. Cody Phillips, “Operation Joint Guardian: The U.S. Army in Kosovo,” U.S. Army Center 

for Military History, CMH Pub 70-109-1 (2007), available at http://www.history.army.mil/

catalog/pubs/70/70-109.html. 

110 Steve Bowman, Kosovo and Macedonia: US and Allied Military Operations, Report for Congress, IB10027 (Washington, DC: Congressional Research Service, July 2003).

111 Jane Perlez, “Peacekeepers Are Overwhelmed in Kosovo, Pentagon Envoy Says,” New York 

Times, March 15, 2000, available at http://www.nytimes.com/2000/03/15/world/peacekeepers-are-overwhelmed-in-kosovo-pentagon-envoy-says.html.

112 Matthew E. Dunham, “Sacrificing the Law of Armed Conflict in the Name of Peace: A 

Problem of Politics,” The Air Force Law Review 69 (2013): 171.

113 Ibid.

114 Ibid.

115 Secretary-General, “As Cote d’Ivoire Plunges into Violence, Secretary-General Says 

United Nations Undertakes Military Operation to Prevent Heavy Weapons Use Against 

Civilians,” UN Press Release SG/SM/13494 (April 4, 2011), http://www.un.org/News/

Press/docs/2011/sgsm13494.doc.htm.

CHAPTER 6.

BELLIGERENCY

Chapter 6. Belligerency

89

Belligerency is the final category on the resistance continuum. 

Once a resistance reaches this category, international humanitarian 

law (IHL) becomes applicable in full to all parties.1 Belligerency represents a fundamental shift in the type of resistance because both sides 

must be given roughly equal rights, whereas in all the previous categories, the rights were largely on the side of the standing government. 

Traditionally, four criteria serve as prerequisites for the recognition of 

belligerency: (1) the existence within a state of a widespread armed 

conflict that extends beyond local unrest (e.g., a civil war); (2) occupation by the resistance of a substantial portion of territory of the state; 

(3) observance of the law of armed conflict (LOAC) by the resistance 

acting under an identifiable authority; and (4) the existence of circumstances that make it necessary for third-party states to acknowledge the 

resistance as belligerents;a such circumstances may include economic, 

commercial, or political interests.

The recognition of the resistance as belligerents provides the belligerents substantive protections as if they were a state, but it does not 

amount to conferring statehood. Belligerencies are those insurgencies 

that have reached such a level of organization that they look more like 

a separate government and society than a dissident movement, and the 

conflict has reached such a level of intensity that it looks more like an 

interstate war than an internal disruption.3 Because recognition of the 

facts of belligerency acknowledges the de facto prosecution of a war 

between states, recognition grants de facto statehood to the resistance 

on a temporary basis.4 The nonstate party to a belligerency is accorded 

the rights and duties of a state for as long as the conflict and the recognition last.5

 The rationale for this is that because the conflict so closely 

resembles an interstate war, the laws that govern international conflicts 

should also govern belligerencies.6 Therefore, what was formerly an 

insurgent group (and now a belligerent resistance) is brought into parity with the state,7

 and the two operate on a level plane with roughly 

equal rights and obligations.8

Belligerencies are wars in the factual sense, as distinguished from 

formal, declared wars. The concept of belligerency recognizes that the 

factual circumstances of the hostilities so closely resemble a declared 

war that LOAC should apply.9 Since the establishment of the Geneva 

Conventions, a declaration of war is irrelevant when it comes to the 

a “These conditions are as follows: first, there must exist within the State an armed 

conflict of a general (as distinguished from a purely local) character; secondly, the insurgents must occupy and administer a substantial portion of national territory; thirdly, they 

must conduct hostilities in accordance with the rules of war and through organized armed 

forces acting under a responsible authority; fourthly, there must exist circumstances which 

make it necessary for outside States to define their attitude by means of recognition of 

belligerency.”2
90

Legal Implications of the Status of Persons in Resistance

legal obligation to apply IHL because the Conventions require its 

application to hostilities that rise to the level of armed conflicts. The 

threshold for belligerency is high because it would be contrary to the 

state-centric system of international law to bestow legal personality, 

rights, and duties to groups revolting against states unless war undoubtedly exists even in the absence of a formal declaration.

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

American

Civil War Hypothetical based on real event

Actual event

The Confederacy during the American Civil War provides a classic example of belligerency.10 The conflict persisted across a wide geographic expanse throughout both parties’ territories. Fronts existed 

along relatively clear lines of control that divided not just cities and 

localities but also regions. The Confederacy governed and administrated the South by enacting new laws, passing judgments on cases, and 

exercising the normal machinery of a sovereign state. The Confederate 

government raised and equipped a uniformed army that followed a 

chain of command and abided by the law of war. The United Kingdom 

recognized the Confederacy as a belligerent party, and not as mere 

insurgents. This action meant that the British would remain neutral 

and neither aid the Confederates nor the US government. Such overt 

recognition caused resentment on the part of US President Abraham 

Lincoln.11

President  Lincoln steadfastly refused to accord recognition of 

belligerency to the Confederacy because it was paramount that the 

US government retain its complete sovereign right and authority as the 

lawful government. Lincoln refused to cede any portion of it, such as 

the authority to choose whether to prosecute those waging war against 

the federal government or to grant them amnesty. President Lincoln 

did grant amnesty, but the important fact is that he, as the head of the 

US government, granted it as a matter of executive discretion rather 

than its being granted by operation of law. His decision to exercise this 

power was a gesture that preserved the integrity and authority of the 

government and his role as the executive, whereas had it been granted 

solely on the basis of legal mechanics, it would have removed from the 

government the power to make that decision. Many argue that Lincoln’s blockade of the South’s ports constituted an implied recognition of belligerency. Yet, the rules of war that governed those hostilities 
Chapter 6. Belligerency

91

were found in the Lieber Codeb and not in the customary law of war. 

This case demonstrates that, even when belligerency manifests itself 

so clearly by satisfying factual criteria, standing governments remain 

reluctant to accord recognition of belligerency to insurgent groups; 

they refuse to relinquish their full sovereign rights and authority and 

instead bestow belligerent rights out of considerations of humanity 

rather than out of a sense of legal obligation.c Even though Lincoln 

did not recognize the Confederacy’s independence or its claim to sovereignty over the territory in the southern states, he eventually determined that the Confederate soldiers should be afforded prisoner of 

war (POW) status, as if they were belligerents.14,d This gesture allowed 

Lincoln to be humanitarian toward troops fighting on behalf of the 

South without bestowing legitimacy on the Confederate government. 

Union soldiers were afforded similar status.16

As a belligerency progresses, the number of POWs often increases, 

creating an incentive to recognize the resistance as a belligerency 

despite the reticence of the standing government to relinquish any 

authority. It becomes in the common interest of each party to abide by 

LOAC to facilitate the fair treatment of their soldiers. Another consideration may be the inability to effectively prosecute belligerents. The 

standing government may “initially consider treating the insurgent 

prisoners as treasonous common criminals, but . . . ‘may feel compelled 

to apply the laws applicable to international armed conflict because of 

b The Lieber Code was a set of instructions signed by President Abraham Lincoln to 

the Union Forces of the United States during the Civil War. The code proscribed how soldiers should conduct themselves in wartime. It described the rights and duties of POWs in 

the conflict and how to treat spies and saboteurs, among other things.12

c Consider, for instance, when Malaya offered amnesty to rebels as part of a propaganda campaign to defeat the rebels. Consider also Congo’s general amnesty in 1963 to 

those fighting in Katanga who opposed the central government.13

d Note that during the war, the Supreme Court recognized the hostilities between the 

Union and the Confederacy as essentially a war between two states. The Court’s description of the conditions for recognizing war is very similar to its description of the conditions for belligerency. “The parties belligerent in a public war are independent nations. 

But it is not necessary, to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents claims 

sovereign rights as against the other. . . . A civil war is never solemnly declared; it becomes 

such by its accidents—the number, power, and organization of the persons who originate 

and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain 

portion of territory, have declared their independence, have cast off their allegiance, have 

organized armies, have commenced hostilities against their former sovereign, the world 

acknowledges them as belligerents, and the contest a war.”15
92

Legal Implications of the Status of Persons in Resistance

the impracticability of prosecuting...all the insurgents.’ ”17,e Recall that 

the status of insurgency does trigger limited protections and duties that 

apply to those involved in the conflict, but the protections and duties 

are not equivalent to those triggered by belligerency. Insurgency triggers only those protections under Common Article 3 and, if applicable, 

Additional Protocol II as well as any further protections that the parties may have agreed to implement, whereas belligerency triggers the 

full panoply of customary IHL (i.e., all elements of LOAC except for 

treaty obligations that bind only the actions of signatories toward other 

signatories).

The concepts of insurgency and rebellion have not significantly 

changed since their inception. The concept of belligerency as such, 

however, has fallen into disuse and has been modified by the Geneva 

Conventions and the framework of the United Nations (UN) system. 

Debate continues regarding whether the doctrine of belligerency continues today. The traditional international law doctrine of belligerency 

served to internationalize an internal conflict.19 In effect, the doctrine 

constituted the host nation government admitting that the insurgent 

group was strong enough and sufficiently organized to be considered 

a state adversary and not just an insurgent group, and so the lawful 

government thereby agreed to wage the war as though it were between 

two nations.20 Before 1949, this option is what existed in the law of 

war governing internal conflicts. Everything below belligerency was 

the exclusive province of domestic law;21 the law of war applied only 

to international conflicts. With the codification of customary IHL and 

the addition of new protections, the Geneva Conventions introduced 

laws applicable to internal armed conflicts, in particular Common 

Article 3.

e In fact, this is precisely the problem the United States has faced with the prosecution of “unlawful enemy combatants.” US policy and legislation promulgated under the 

Bush administration viewed enemy combatants as outside the scope of US and IHL. 

They were deemed combatants in the sense that they could be targeted, but as “unlawful 

combatants” they were arguably subject to unique rules that precluded the application 

of POW status. The difficulties of prosecuting such combatants played out in US federal 

courts. In Hamdan v. Rumsfeld, the Supreme Court invalidated the military tribunal system that had been created to prosecute the enemy combatants and determined that they 

were entitled to at least Common Article 3 protections.18 In that case the tribunal system 

set up exclusively by the executive through the armed forces failed to satisfy Common 

Article 3 because it was not a regularly constituted tribunal. In the United States, tribunals are regularly constituted by legislation, so to satisfy Common Article 3 would have 

required a tribunal established by Congress, not by the executive. Some individuals that 

would have been subject to military detention or prosecution under the Bush administration’s military tribunals were prosecuted criminally (e.g., Ahmed Omar Abu Ali and 

Zacarias Moussaoui).
Chapter 6. Belligerency

93

The doctrine of belligerency has not been used to describe a conflict 

since the latter half of the nineteenth century.22,f There are two main 

reasons for its disuse: (1) the flexibility offered by Common Article 3; 

and (2) the requirement of recognition by the host nation. First, Common Article 3 of the Geneva Conventions was a significant post-World 

War II innovation, designed to provide some protections under international law for victims of internal hostilities.g

 Some scholars believe 

that Common Article  3 has supplanted the doctrine of belligerency 

and that it is the only law relating to internal armed conflicts. Scholars have looked at the commentary on the Conventions to assert that 

the drafters consciously incorporated the doctrine of belligerency into 

Common Article 3, thereby limiting the article’s application to noninternational armed conflicts (NIACs).24 However, while it was agreed 

during the drafting that Common Article 3 would apply only to NIACs, 

the drafters expressed the sentiment that the rules of IACs continue to 

govern where an internal conflict is more analogous to an IAC (i.e., belligerency).25 This view supports the idea that belligerency was left intact 

as a separate concept. The drafters recognized that should the article 

be triggered only in internal conflicts if the four criteria of belligerency 

were met as preconditions, it would greatly weaken the point of applying its substantive protections as broadly as possible because it would 

rarely apply to any internal conflict. At the same time, the threshold 

could not be so low as to apply to situations involving rioting and common criminality.26 Additional support for this interpretation can be 

found in the final records of the meetings, which express a strong sentiment that the rules of IACs continue to govern where internal conflicts 

are more analogous to IACs.27,h Under this view, the Conventions preserve the doctrine to serve its original purpose and extend the limited 

protections of IHL to those conflicts that are not of an international 

character and that fall below the threshold for belligerency; otherwise, 

it would not regulate these conflicts at all.

However, the commentary on the Geneva Conventions also seems to 

support the opposite conclusion. The proposal that the preconditions 

f The debate whether to grant insurgents belligerent status last arose during the 

Spanish Civil War of 1936–1939.23

g The text of Common Article 3 appears in the Appendix, Chapter x. The four treaties of the Geneva Conventions detail protections afforded various groups during international armed conflicts (IACs; as opposed to internal conflicts), e.g., wounded and sick 

soldiers, POWs, and civilians.

h Final Record II-B states in pertinent part, “The second Working Party’s proposal 

was contested, on the grounds mainly that it did not take into account the existence of 

civil wars which resembled international wars sufficiently close to justify, in the general 

interest, the application to them of the provisions of the Wounded and Sick, Maritime and 

Prisoners of War Conventions as a whole.”
94

Legal Implications of the Status of Persons in Resistance

of belligerency are a threshold for applying Common Article  3 was 

rejected, but the commentary suggests using the elements of belligerency as a means of measuring and determining whether an armed conflict that is not of an international character exists.28 The commentary 

states:

It must be recognized that the conflicts referred to in 

Article  3 are armed conflicts, with armed forces on 

either side engaged in hostilities—conflicts, in short, 

which are in many respects similar to an international 

war, but take place within the confines of a single 

country.29

In many cases, each of the parties in such an armed conflict will 

possess a portion of the national territory, and there will often be some 

sort of front.i This description closely mirrors the definition and nearly 

all the criteria for belligerency. Therefore, it has been argued that belligerency was acknowledged by the drafters of the Conventions and 

that they intended Common Article 3 to fully replace the doctrine.

Nonetheless, belligerency as a concept is in disuse, but it is not 

extinct, and practical reasons may exist to acknowledge it, at least in 

limited circumstances. Belligerency should arguably be acknowledged 

for civil wars that resemble IACs, even if these circumstances seldom 

occur. If an armed conflict exists and the insurgents meet the criteria for belligerency, then by definition, the conflict becomes an IAC, 

and the broad provisions of LOAC apply, not just Common Article 3. 

If it does not, then it is an internal armed conflict to which Common 

Article 3 protections and, if applicable, Additional Protocol II protections apply. State practice shows a preference for alternative methods 

to accomplish the same objective, not a rejection of the traditional doctrine. For instance, Common Article 3 provides that the parties to the 

conflict can agree to apply all or some of the provisions of the elements 

of the Conventions. So, if a host nation refuses to recognize a state of 

belligerency, then the two parties can negotiate which provisions of 

customary LOAC or the Geneva Conventions will apply in their conflict. This method was essentially used by the United States during the 

Civil War with the Lieber Code and the application of elements of the 

law of war.30

i Recall that the Geneva Conventions were developed based on preexisting law. For 

instance, the commentary’s notion of belligerency aligns with case law developed nearly 

100 years prior. In the Prize Cases, 67 U.S. 635, 673-674 (1863), the US Supreme Court 

found that the American Civil War, as a belligerency was “...no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines 

of bayonets, and which can be crossed only by force – south of this line is enemies’ territory, because it is claimed and held in possession by an organized, hostile and belligerent 

power.”
Chapter 6. Belligerency

95

The requirement that belligerencies be recognized presents another 

obstacle to the application of the doctrine. Recognition is a requirement, because the factual circumstances that indicate the existence of 

a belligerency do not exist in a void. Whether that recognition comes 

from the standing governments or third-party states affects whether 

the full protections apply to those in the conflict. States are reluctant to 

accord recognition to resistance groups because doing so raises them 

to a nearly equal status with the standing government.31 The fact that 

no authority exists for conclusively settling when a belligerency exists is 

a further criticism of the doctrine, but in general, the prevailing view 

is that recognition can be implicit and based on government attitudes 

about the internal situation.32 Although recognition by third-party 

states and international organizations may prove influential, without 

the standing government’s recognition of the insurgents as belligerents, 

the insurgent group will not be afforded the full LOAC protections.j

The disuse of belligerency suggests that states may prefer to recognize resistance movements as insurgencies rather than as belligerencies, and the UN processes that exist allow insurgency (as a concept) to 

persistently exist below belligerency despite satisfying the factual criteria.34 The UN system provides options for addressing internal conflicts 

and the attendant legal protections through three separate chapters of 

the UN Charter.

Article 35 in Chapter VI of the UN Charter permits any member of 

the UN to bring before the Security Council any dispute it believes will 

endanger international peace and security. The Security Council may 

then investigate the situation and recommend appropriate procedures 

or methods of adjustment. Actions under Chapter VI, dealing with 

peaceful settlement of disputes, are commonly known as peacekeeping operations undertaken by the authority of a UN Security Council 

mandate, and they primarily consist of observer missions tasked with 

ensuring that IHL is followed. Those mandates need not expressly 

state that an action falls under Chapter VI authority, and peacekeeping is distinct from peace enforcement operations carried out under 

Chapter VII authority. Under Chapter VII of the charter, the Security 

Council has exclusive authority to determine whether a threat to the 

peace, a breach of the peace, or an act of aggression exists and to take 

action to mitigate that threat, including the use of armed force. Chapter VIII authorizes regional arrangements or agencies to maintain 

j Lootsteen notes that “if the de jure government does not recognize the insurgency 

as a belligerency, either tacitly or explicitly, all other forms of recognition would not in 

fact serve to bestow upon the insurgents any protections to which they would be entitled 

under the laws applicable during international conflicts. The cases in which an incumbent 

administration would agree to bestow such safeguards on persons they naturally view as 

traitorous citizens will be very rare.”33
96

Legal Implications of the Status of Persons in Resistance

international peace and security first by peaceful means and then by 

enforcement actions subject to authorization by the Security Council. 

The processes under each chapter require the adoption of resolutions, 

and each resolution provides an opportunity to articulate the level of 

IHL that applies between the parties to the conflict.

Modern insurgencies that reach the level of belligerency will rarely 

receive recognition of belligerency in the old sense (i.e., an official 

statement, such as by Great Britain during the American Civil War). 

Instead, the status of the parties to the conflict will more likely be negotiated under the provision of Common Article 3 that encourages parties 

to a NIAC to agree to apply more protections than required by Common Article 3, so as to keep the conflict a NIAC. Or states will use the 

mandates and resolutions issued under Chapter VI and Chapter VII of 

the UN Charter to define the conflict as internal, but once actions are 

taken under Chapter VII, the conflict is arguably internationalized.

THE IMPLICATIONS FOR PARTICIPANTS

Once a conflict is internationalized through the doctrine of belligerency, LOAC, which includes Geneva Convention protections, applies 

to each party to the conflict.35 Note that Common Article 2 requires 

that the parties to the conflict be High Contracting Parties for the 

Conventions to apply.36 As newly recognized de facto states, belligerent 

groups will most often not be signatories. Further, Common Article 2 

also provides that the Conventions will apply between High Contracting Parties, meaning that the Conventions should not bind parties 

engaged in civil war. Yet, the third paragraph of Common Article 2 

also states that “although one of the Powers in the conflict may not be 

a party to the present Convention, the Powers who are parties thereto 

shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the 

latter accepts and applies the provisions thereof.”

This third paragraph of Common Article 2 distinguishes between 

the said power as the party to the conflict that has not signed the 

Geneva Conventions and the powers that are parties to the conflict 

and that have signed the Geneva Conventions. Accordingly, the phrase 

“their mutual relations” pertains to relations between High Contracting Parties, not relations involving a resistance that is not a High Contracting Party but that has been recognized as a belligerent. So, that 

one party to an international conflict is not a High Contracting Party 

cannot be invoked as justification for other High Contracting Parties 

to violate the Conventions’ provisions in the context of their interactions with other High Contracting Parties. The Conventions can apply 
Chapter 6. Belligerency

97

between the High Contracting Parties and the de facto state party (i.e., 

the belligerent resistance) if the de facto state agrees to and in fact does 

abide by the provisions in the Geneva Conventions. Therefore, only 

the customary rules of LOAC will bind the resistance and the standing 

government in the hostilities unless and until the resistance applies the 

Conventions’ provisions. The customary law of IAC is extensive; many 

protections come into play for both sides of the conflict, which provide 

protections for the belligerency’s members and supporters.

THE STATUS OF STANDING GOVERNMENT 

PERSONNEL AND FOREIGN TROOPS 

SUPPORTING THEM

After recognition of belligerency, little changes regarding the standing government and the supporting foreign forces. Under customary 

IHL during IACs,37 lawfully constituted armed forces of states continue to receive combatant status and privileges, POW status with basic 

rights and privileges, trial before conviction or sentencing when caught 

conducting espionage, and fundamental guarantees when placed hors 

de combat. These parties are also obligated to continue to distinguish 

between combatants and civilians, as well as between civilian objects 

and military objectives, and afford fundamental guarantees to those 

placed hors de combat.

New obligations arise in this context because members of the armed 

resistance have attained the status of combatants, have attained the status of POWs, and if caught while conducting espionage are owed the 

due process of a trial before being convicted or sentenced. In addition, 

it becomes clearer that the belligerents are obligated to abide by these 

customary laws of IAC. While it is disputed whether the standing government retains the right to prosecute belligerents for crimes against 

the state, it may certainly now prosecute them for violations of the law 

of IAC. If and when a belligerent group agrees to and does apply the 

provisions of the Geneva Conventions, then the standing government 

will reciprocally be obligated to apply the Conventions in full in their 

interactions with the insurgent group.

The Belligerents

Under customary IHL, combatant status applies only to members 

of the armed forces of a party to an IAC.38 Because the belligerent 

group is a de facto state for purposes of the conflict, the members of its 

armed forces receive combatant status.39 Therefore, they have the status 
98

Legal Implications of the Status of Persons in Resistance

of privileged belligerents and receive the combatant’s privilege,40,k as 

well as POW status upon capture and detention, provided that they 

distinguish themselves from the civilian population during attacks and 

in acts preparatory to attacks.41,l Recall that being a combatant also 

makes one a legitimate target during hostilities.43 Combatant status 

provides that certain actions that would be unlawful if committed outside of an IAC, such as assault, destruction of property, or homicide, 

are lawful when committed during an IAC.44 Forces fighting against 

belligerents must also distinguish between civilian objects and military 

objectives, although this rule simply carries over from noninternational 

conflicts.45 Belligerents who engage in espionage do not receive POW 

status but are owed a trial before being convicted or sentenced.46 Once 

a privileged belligerent is detained, numerous duties become incumbent on the host nation’s detaining authority regarding the treatment 

of POWs.47 Such duties do not necessarily arise if the detainee is an 

unprivileged belligerent. And, when placed hors de combat, belligerents 

receive fundamental guarantees.48

The belligerent group may agree to apply the Geneva Conventions, 

or provisions thereof, but it must also meet the second requirement of 

actually applying those provisions for those provisions to apply reciprocally to the standing government and any foreign forces supporting the 

standing government.49

Protections for those Supporting Belligerents

To receive combatant status and POW status under customary IHL, 

an individual must be part of the armed forces of a party to the conflict 

or a member of a militia or volunteer corps complying with the four 

conditions set down in Article 4 of the Third Geneva Convention.50 Foreign troops clandestinely assisting and supporting belligerent groups 

are not members of the armed forces of a party to the conflict; they are 

members of the armed forces of a state outside the conflict. In such a 

circumstance, the sending state remains outside the conflict, and the 

troops it sends that are not overtly participating in hostilities do not 

receive combatant status or POW protection because the state is not a 

party to the conflict.

k The ICRC explains that combatant status exists only in IACs.

l In its Customary International Humanitarian Law Database, the ICRC explains that 

regular armed forces must comply with all four criteria set out in Article 4 of the Third 

Geneva Convention but that a full uniform is not required so long as the service member is distinguishable as a member of the armed forces at a distance. The ICRC further 

explains that where armed combatants cannot distinguish themselves while engaged in 

attacks and military operations, they will remain combatants provided they carry their 

arms openly. The United States opposes this rule.42
Chapter 6. Belligerency

99

If foreign troops are acting overtly, such as during the North Atlantic 

Treaty Organization’s (NATO) actions in Libya, that support internationalizes the conflict.51,m Internationalizing a conflict by this method, 

instead of through recognition of belligerency, triggers the Geneva 

Conventions, the Additional Protocols, and the customary laws of IHL 

in full, contingent on the parties to the conflict being High Contracting Parties and not having made reservations to the agreements. In 

this scenario, it was necessary for NATO and the Libyan rebels to side 

with one another for IAC IHL to apply to the rebels.52 Otherwise, the 

IAC IHL would apply between Libya and NATO only, and the conflict 

between Libya and the rebels would remain a NIAC. Note that in this 

situation, the resistance remained an insurgency, the term belligerency

could not be invoked to internationalize the conflict, and the insurgents are not considered a de facto state. It has been suggested that the 

standard for siding with a party to a conflict is either formal or informal 

affiliation through a joint organization or pursuit of the same goals.53

Affiliation between belligerents and lawful states is unlikely to occur 

because the insurgent group is a nascent de facto state only and has not 

had opportunity to enter bilateral or multilateral relations, which the 

provisional status of its statehood may not permit regardless. Accordingly, foreign forces almost always support insurgent groups because 

they share operational ends, and not because of a binding agreement. 

Foreign troops engaging in unconventional warfare (UW) will therefore most likely act clandestinely, which affects how they receive the 

privileges of combatant status.

Foreign troops may be able to receive these protections on the basis 

of their efforts on behalf of the de  facto state party to the conflict, 

because support on behalf of a party to an IAC can mean belonging to 

that party and, therefore, being entitled to IAC protections.54,n There 

remain, however, the obstacles of responsible authority and command 

and notification. Military manuals and ICRC scholarship indicate that 

the armed forces of a party include all organized armed groups under 

a command responsible to that party for the conduct of its subordinates.55 It is unlikely that foreign troops operating covertly or clandestinely will consider themselves responsible to the insurgent group 

they are supporting. It is US policy, for instance, to relinquish operational command and control to another state or international organization only and very rarely in instances beyond isolated missions.56

m The ICRC states that “foreign military intervention, on the side of either Party to a 

conflict, transforms a non-international conflict into an international conflict.”

n Pictet explains that to belong to a party to the conflict does not require formal 

statements but only a de facto relationship based on for whose advantage operations are 

carried out.
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Legal Implications of the Status of Persons in Resistance

Furthermore, regular armed forces of a state are presumed to satisfy 

all the constitutive requirements for combatant status.57 That foreign 

troops, like those of the United States, would rarely ever subordinate 

their own command and control to other states (much less insurgent 

groups) and that regularly constituted armed forces per se satisfy the 

criteria for combatants favors categorizing foreign troops as receiving 

POW status when supporting insurgent groups that qualify as belligerents even when they do not subordinate themselves to the insurgent 

group.

Traditional international law required parties to an armed conflict to notify the other party or parties of those participating on their 

behalf.58 Notification would defeat the purposes of conducting covert 

or clandestine operations on behalf of a state not party to the armed 

conflict. However, unlike subordination to responsible command and 

authority, notification is not a constitutive element of a participant’s 

status, so it is not an element to be satisfied to qualify for combatant 

status.59,o

The preceding discussion assumed that the standing government discovered that the captured personnel were foreign troops and 

treated them according to that status. However, the troops’ revelation 

that they are part of a foreign military defeats the purposes of covert 

and clandestine operations. Should the standing government discover 

that the troops are conducting covert or clandestine operations, this 

could support the argument that armed conflict exists between it and 

the state sending the foreign troops.60 If the standing government does 

not discover this fact, foreign troops supporting the belligerents will 

be treated equally with the belligerents. Therefore, foreign troops supporting belligerents, as combatants, are insulated from prosecution for 

their acts taken in carrying out the conflict as long as they comply with 

customary elements of LOAC. If captured, these troops will be entitled 

to POW status, provided that they have distinguished themselves from 

the civilian population while in operations preparing for and carrying 

out attacks.61 Those who are caught conducting espionage will be owed 

a trial before conviction or sentencing.62

In summary, customary IHL provides the personnel involved in belligerency with combatant status, POW status, protection from summary 

execution for spying, and fundamental guarantees while detained. These 

protections and the obligation to provide and respect them apply to 

both sides to the conflict. Foreign forces that support belligerent groups 

face the decision of retaining identification as foreign service members 

o The ICRC states: “While notification is not constitutive of the status of the units 

concerned, it does serve to avoid confusion and thus enhances respect for the principle of 

distinction.”
Chapter 6. Belligerency

101

and maintaining clear separation between the belligerent group and 

the foreign forces, or joining the ranks of the belligerent group completely. The former will guarantee Geneva Convention protections but 

will also implicate the sending state in an IAC, which may be politically 

and strategically undesirable. The latter avoids such an entanglement 

while still providing protections of at least customary LOAC and potentially Geneva Convention protections if the belligerency recognizes and 

in fact applies the provisions to their conduct.

The example of Kurdistan in the late 1990s provides the opportunity to analyze the elements of belligerency, as well as how UN processes change the use of belligerency as a concept.

BELLIGERENCY IN CONTEXT: IRAQI KURDISTAN

Nonviolent Legal Nonviolent Illegal Rebellion Insurgency Belligerency

Increasing level of intensity, duration, and organization

Iraqi Kurdistan

(early 1990s) Hypothetical based on real event

Actual event

Although few examples of recognized belligerencies existed in the 

twentieth and twenty-first  centuries, there have been conflicts that 

might rise to the level of belligerency even if not recognized as such. 

Consider the Iraq-Kurdistan conflict in the early 1990s. To qualify as 

belligerency under the traditional doctrine, this conflict would have to 

satisfy the following criteria: the conflict is of general, as opposed to 

local, character; the resistance occupies and administers a substantial 

portion of national territory; the resistance observes and complies with 

the rules of war through organized armed forces under a responsible 

command; and circumstances require outside states to define their attitude toward the resistance.63

In the spring of 1991, the Kurds of Iraq revolted against Saddam 

Hussein by using their military, the peshmerga, only to be brutally suppressed by severe retaliation, with helicopter gunships supporting Iraqi 

ground forces. This fact exemplifies how Iraq’s conflict with the Kurds 

was of a general character instead of a local character because it featured broad engagement between two armed forces for control across 

a region, rather than clashes vying for tenuous control of individual 

municipalities. To protect the Iraqi Kurds fleeing to the north, the 

United Kingdom, the United States, and France imposed a no-fly zone 

over northern Iraq, allowing a majority of Kurds to return home and the 

peshmerga to engage Iraqi ground forces across the region. Although 
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Legal Implications of the Status of Persons in Resistance

this no-fly zone, integral to the peshmerga’s ability to engage Saddam’s 

forces, was instituted by third-party states, it is unclear whether this 

fact alone would prevent the conflict from qualifying for belligerency. 

Strong evidence for finding a belligerency lies in the Iraqi blockade 

of the Kurdish region.64 Blockades are permissible under international 

law only in times of war, to prevent one’s opponent from receiving provisions and supplies to further prosecute the conflict.65 Thus, like during the American Civil War, the use of a blockade strongly indicates the 

existence of a general conflict approaching, if not already constituting, 

a belligerency.66

Kurdistan offers a classic example of a resistance movement occupying and administering a significant portion of territory. In October 1991, the Iraqi government completely pulled out of northern Iraq, 

leaving the Kurds to govern over ten  percent of Iraq’s territory and 

millions of people.67,68 The Kurds quickly instituted their own civil government to provide public services and an economic infrastructure, 

and they held elections in 1992. Compare the Kurdish example with 

how Syrian insurgents today struggle to govern any portion of Syrian 

territory. Compare it also with the Confederacy in the American Civil 

War: both groups elected officials to serve in official offices, raised and 

supported armies, maintained an economy, and engaged in foreign 

relations.

Regarding the observance of the rules of war by an organized armed 

force under responsible command, the peshmerga largely satisfied this 

criterion. They have constituted an organized and disciplined military 

force since the 1970s,69 and in 1991 they carried out the revolt armed 

with small arms and rocket-propelled grenades.70 During the ensuing 

years, they rebuffed Iraqi attempts to retake cities and towns in Iraqi 

Kurdistan. They are uniformed soldiers under responsible command, 

so that soldiers are responsible to commanders and commanders are 

responsible for soldiers’ actions. Their compliance with the rules of war 

can be questioned,p but if limited deviations from the rules of war prevent a conflict from becoming a belligerency, then Sherman’s March, 

Camp Sumter, and Camp Douglas would have prevented the American 

Civil War from qualifying as a belligerency, and the Supreme Court of 

the United States found that it was a belligerency. Systematic violations 

could result in a different conclusion, however.

Finally, the Iraq-Kurdistan conflict in the 1990’s certainly required 

other states to define their attitudes to the conflict. Turkey had to 

respond to an influx of fleeing Kurdish refugees; Iran later supported 

p For instance, one reporter wrote of his experience witnessing the peshmerga summarily execute dozens of Iraqi soldiers who had surrendered and placed themselves hors de 

combat, constituting a clear violation of the law of war even under Common Article 3.71
Chapter 6. Belligerency

103

the Patriotic Union of Kurdistan (PUK); and the coalition of the United 

Kingdom, United States, and France consistently enforced the safe 

haven and no-fly zone in northern Iraq while the UN provided humanitarian relief.72 The most common traditional factors that prompt a 

state to respond and define its position regarding a conflict internal to 

another state are commercial interests and the protection of its nationals.73 After the scourge of World War II, the UN Charter introduced a 

new overriding factor as well as a new method for states to define their 

attitudes to conflicts.

The Role of the United Nations System

In response to Iraq’s brutal suppression of the Kurdish revolt, the 

UN Security Council, at the prompting of France and Turkey, adopted 

Resolution 688, condemning Iraq’s actions and demanding that it cease 

them immediately.74 The UN further agreed to institute a safe haven in 

northern Iraq and provided humanitarian aid in that region.75 This 

represents the process envisioned under the UN Charter. The charter 

prohibits states from using force and encourages states to first attempt 

a peaceful settlement. If those attempts fail, states may then appeal 

to the Security Council to help resolve the situation if it potentially 

threatens international peace and security. States not involved in the 

conflict may also alert the Security Council of a potential threat to 

international peace and security. It is the Security Council that ultimately decides whether a threat exists and determines the best way to 

address the threat, under Chapters VI, VII, or VIII. France and Turkey 

elected to bring the situation to the attention of the Security Council 

instead of taking unilateral or bilateral actions. The United Kingdom 

and the United States took the opposite approach.

Separate from this UN process, the United States and the United 

Kingdom demanded that Iraq remove its military from the area and 

enforced a no-fly zone over the region until 2003.76 The unilateral use 

of force to create the no-fly zone has been argued to go against the 

UN Charter, but it was defended by the United States and the United 

Kingdom as being justified under humanitarian necessity. The validity of that justification under international law is a separate question 

that remains highly debated. The Security Council can authorize the 

imposition of a no-fly zone, or other uses of force, but it may do so only 

under Article 42 in the exercise of Chapter VII authority. While explicit 

reference to Chapter VII or Article 42 in a resolution is not required, 

it has led to more clarity and less debate about the legality of actions 

taken on the basis of a resolution. For instance, Resolution  688 was 

not clear as to the basis for its authority (i.e., it did not state whether it 
104

Legal Implications of the Status of Persons in Resistance

was passed under Chapter VI or Chapter VII), and it does not mention 

any type of use of force as a permissible means to accomplish its goals, 

much less no-fly zones. Accordingly, it is commonly argued that it could 

not have provided the legal basis for the UK and US no-fly zone.

Contrast this with Resolution 1973 regarding Libya in 2011. This 

resolution expressly states that the Security Council passed it acting 

under Chapter VII authority, and it explicitly called for the implementation of a no-fly zone. That no-fly zone therefore stands as undoubtedly lawful under international law, whereas the legality of the no-fly 

zone in Iraq throughout the 1990’s remained debated. Consider also 

Resolution 678, which authorized states to use all necessary means to 

bring Iraq into compliance with previous resolutions requiring Iraq to 

remove its armed forces from Kuwait. Operation Desert Storm, executed on the basis of Resolution 678, therefore stands on more solid 

international legal ground because the resolution made clear that all 

necessary means were permissible, including the use of force.

Hypothetical: An American pilot enforcing the no-fly zone is required to 

eject and lands on the Iraqi side of the thirty-sixth parallel.

Suppose a US pilot who is enforcing the no-fly zone is forced to 

eject during a flight and parachutes to safety on the Iraqi side of the 

line. It is reasonable to assume that if the pilot landed on the Kurdish 

side, he would be safe because the no-fly zone benefits the Kurds, and 

so they would likely not mistreat US personnel enforcing that zone. In 

fact, it is known that the US special operations forces and the peshmerga worked together against Iraqi armed forces.77 Accordingly, the 

risk lies in the soldier descending to the Iraqi side of the line, and the 

question is what protections would he or she receive? As discussed, this 

depends on whether there is an armed conflict, and if there is, what 

type of conflict it is.

The no-fly zone began because of violence between Iraq and the 

Kurds. On the basis of what was discussed in preceding sections in this 

study, that violence qualified as an armed conflict because the Kurds’ 

organization was so high as to be state-like, and the intensity of the 

violence led to the armed forces of Iraq and the military wing of the 

Kurdish government engaging openly. As a conflict, it was at least an 

insurgency, a NIAC. Accordingly, at least Common Article  3 protections applied, as well as any agreements reached between Iraq and the 

Kurds. But could fuller protections apply?

Consider the argument previously made for classifying this conflict under belligerency. The facts meet all the objective criteria, and 

the blockade by Iraq can qualify as implied recognition of belligerency, like Lincoln’s blockade did during the American Civil War. Such 
Chapter 6. Belligerency

105

recognition would trigger customary IHL but not the full terms of the 

Geneva Conventions unless and until the Kurds accept and abide by the 

Conventions. The modern disuse of this doctrine, however, requires 

asking whether the conflict could be internationalized by some other 

legal mechanism. Two possibilities should be considered. One derives 

from the UN system, and the other comes out of the ICRC commentary 

to the Geneva Conventions interpretation of what constitutes an IAC.

The UN system has granted the Security Council authority to determine whether a situation constitutes a threat to international peace and 

security.78 Once a situation is found to be a threat, the Security Council 

has the authority to pass resolutions either stating recommendations 

for resolving the situation or calling for action by states to resolve the 

situation. Resolutions that make recommendations are adopted under 

Chapter VI and do not have legally binding effect.79 They essentially 

form a statement defining the attitudes of outside states toward the situation, so the effect of those resolutions is not to internationalize the 

conflict because recognition by outside states (i.e., not the host nation) 

defines rights and duties as between the resistance and those outside 

states only. To invoke full IHL requires recognition by the host nation 

because only that recognition creates rights and duties between the parties to the conflict, the resistance and the host nation. This can arguably 

take place through enforcement measures adopted under Chapter VII 

that have legally binding effect80 because the “members of the United 

Nations agree to accept and carry out the decisions of the Security 

Council in accordance with the . . . Charter.”81 Accordingly, the host 

nation is bound to accept the decision that the armed resistance threatens international peace and security. The circumstances that form the 

basis for the Security Council to find a threat to international peace 

and security vary, and they do not always satisfy the objective criteria for 

belligerency. But, if the circumstances relied on and cited by the Security Council for finding a threat to international peace and security 

meet the threshold for belligerency, one may argue that accepting that 

finding constitutes recognition by the host nation of belligerency. That 

would internationalize the armed conflict and trigger the international 

humanitarian law of IACs because the host nation has then recognized 

the resistance as a belligerency.

Alternatively, the introduction of another state into a NIAC will 

internationalize the conflict and trigger the panoply of IHL.82 Whether 

an outside state enters an internal conflict with or without authority 

from a UN Security Council resolution, the ICRC commentary on Common Article 2 suggests that because another state entered the conflict 

with its armed forces, the conflict becomes international.83 To provide 

greater protections, the drafters chose the term armed conflict over the 
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Legal Implications of the Status of Persons in Resistance

term war, and in line with that decision, the commentary makes clear 

that “any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict. . . . It 

makes no difference how long the conflict lasts, how much slaughter 

takes place, or how numerous are the participating forces; it suffices for 

the armed forces of on Power to have captured adversaries falling with 

the scope of Article  4.”84 Accordingly, the overt use and presence of 

state armed forces, whatever the underlying reason or justification, in 

a dispute with another state will require application of LOAC of IAC as 

between those states’ armed forces. Whether the law of IAC will apply 

between the host nation and the resistance movement will depend on 

whether the members of the resistance movement can qualify under 

Article 4.85

Consequently, the pilot, as a US armed forces member, can receive 

full protections under LOAC because the use of US air forces to enforce 

a no-fly zone over northern Iraq constitutes the use of force in a dispute 

between states, and the use of state armed forces in a dispute between 

states qualifies as an IAC regardless of how much actual fighting has 

taken place. Resolution 688 would not support the full application of 

LOAC because it was not passed under Chapter VII, was not binding 

on Iraq and, therefore, cannot force the host nation to recognize a 

belligerency. Different conclusions might be reached if the pilot was 

not part of an overt use of the US armed forces and was instead part 

of clandestine US operations, or if Resolution  688 had been passed 

under Chapter VII and bound Iraq to recognize the Kurds as belligerents. Recall that if some deficiency in triggering full LOAC arises, 

the pilot must receive at least Common Article 3 protections because 

the conflict between the Kurds and Iraq certainly qualifies as a NIAC, 

an insurgency.

ENDNOTES

1 Evan Luard, “Civil conflicts in Modern International Relations,” in The International 

Regulation of Civil Wars, ed. Evan Luard (New York: New York University Press, 1972), 20.

2 Rosalyn Higgins, “International Law and Civil Conflict,” in The International Regulation of 

Civil Wars, ed. Evan Luard (New York: New York University Press, 1972), 170–171; Hersh 

Lauterpacht, Recognition in International Law (Cambridge, UK: Cambridge University 

Press, 1948), 176.

3 The Prize Cases, 67 U.S. 635, 667-668 (1863); Heather Wilson, International Law and the 

Use of Force by National Liberation Movements (Oxford, UK: Clarendon Press, 1988), 27; 

Anthony Cullen, “Key Developments Affecting the Scope of Internal Armed Conflict in 

International Humanitarian Law,” Military Law Review 183 (2005): 76

4 James Brierly, The Law of Nations, ed. Humphrey Waldock (Oxford, UK: Clarendon Press, 

1963), 141, 142–143; James Bond, The Rules of Riot (Princeton, NJ: Princeton University 

Press, 1974), 51.
Chapter 6. Belligerency

107

5 Field Manual No. 27-10 (FM 27-10), The Law of Land Warfare (with changes) (Washington, 

DC: Headquarters, Department of the Army, 1956), ¶ 11a; Daoud L. Khairallah, Insurrection Under International Law: With Emphasis on the Rights and Duties of Insurgents (Beirut: 

Lebanese University, 1973), 28–29, quoted in Wilson, International Law and the Use of Force 

by National Liberation Movements, 36–37); Lauterpacht, Recognition in International Law, 

175.

6 Wilson, International Law and the Use of Force by National Liberation Movements, 37; Lothar 

Kotzsch, The Concept of War in Contemporary History and International Law (Geneva: Libraire 

E. Droz, 1956), 234.

7 Wilson, International Law and the Use of Force by National Liberation Movements, 27; Richard A. Falk, “Janus Tormented: The International Law of Internal War,” in International 

Aspects of Civil Strife, ed. James N. Rosenau (Princeton, NJ, Princeton University Press, 

1964), 204.

8 Cullen, “Key Developments Affecting the Scope of Internal Armed Conflicts in International Humanitarian Law,” 76; Richard Falk, “Janus Tormented: The International Law 

of Internal War,” 203; Lauterpacht, Recognition in International Law, 175; Brierly, The Law 

of Nations, 142–143.

9 Kotzsch, The Concept of War in Contemporary History and International Law, 234–235; Falk, 

“Janus Tormented: The International Law of Internal War,” 204.

10 Williams v. Bruffy, 96 U.S. 176, 188-189 (1878); The Prize Cases, 67 U.S. 635, 670 (1863).

11 Evan Luard, “Civil Conflicts in Modern International Relations,” in The International 

Regulation of Civil Wars, ed. Evan Luard (New York: New York University Press, 1972), 20.

12 Headquarters, War Department, General Orders No. 100 (1863), reprinted in Francis 

Lieber, Instructions for the Government of Armies of the United States in the Field (Washington, 

DC: Government Printing Office, 1898), available at http://www.loc.gov/rr/frd/Military_

Law/Lieber_Collection/pdf/Instructions-gov-armies.pdf.

13 Pamphlet 355-139, Alert No. 6, The Third Challenge, Unconventional Warfare 9 (Washington, DC: Headquarters, Department of the Army, 1962), cited in Joseph B. Kelly, “Legal 

Aspects of Military Operations in Counterinsurgency,” Military Law Review 21 (1963): 

109–110.

14 Yair Lootsteen, “The Concept of Belligerency in International Law,” Military Law Review

166 (2000): 115.

15 The Prize Cases, 67 U.S. 635, 666–667 (1863).

16 Lootsteen, “The Concept of Belligerency in International Law,” 115.

17 Waldemar A. Solf, “Problems With the Application of Norms Governing Interstate 

Armed Conflict to Non-International Armed Conflict,” Georgia Journal of International 

and Comparative Law 13 (1983): 292–293, quoted in Lootsteen, “The Concept of Belligerency in International Law,” 115.

18 Hamdan v. Rumsfeld, 548 U.S. 557, 630-632 (2006).

19 Joseph B. Kelly, “Legal Aspects of Military Operations in Counterinsurgency,” 97.

20 Anthony Cullen, “Key Developments Affecting the Scope of Internal Armed Conflict 

in International Humanitarian Law,” 76–77; Kotzsch, The Concept of War in Contemporary 

History and International Law, 231–234.

21 Kotzsch, The Concept of War in Contemporary History and International Law, 233.

22 Lootsteen, The Concept of Belligerency in International Law, 110.

23 Ibid.

24 Ibid., 123.

25 David A. Elder, “The Historical Background of Common Article 3 of the Geneva Convention of 1949,” Case Western Reserve Journal of International Law 11 (1979): 53; Diplomatic 

Conference of Geneva of 1949, April 21–August 12, 1949, Final Record of the Diplomatic 

Conference of Geneva of 1949, vol. 2-B: 124 [hereinafter Final Record 2-B].
108

Legal Implications of the Status of Persons in Resistance

26 Lootsteen, “The Concept of Belligerency in International Law,” 122; Elder, “The Historical Background of Common Article 3 of the Geneva Convention of 1949,” 53.

27 Final Record 2-B, 124.

28 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, ed. Jean Pictet (Geneva: ICRC, 1960), 35–36.

29 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 37.

30 Headquarters, War Department, General Orders No. 100 (1863).

31 Wilson, International Law and the Use of Force by National Liberation Movements, 27; Falk, 

“Janus Tormented: The International Law of Internal War,” 203–204; Cullen, “Key Developments Affecting the Scope of Internal Armed Conflicts in International Humanitarian Law,” 76; Brierly, The Law of Nations, 142-43.

32 International Committee of the Red Cross, Commentary on the Additional Protocols to the 

Geneva Conventions, eds. Yves Sandoz, Christophe Swinarski, & Bruno Zimmerman 

(Geneva, Martinus Nijhoff Publishers, 1987), 1320–1322 ¶¶ 4344-4349.

33 Lootsteen, “The Concept of Belligerency in International Law,” 120.

34 Ibid., 109–141.

35 Lothar Kotzsch, The Concept of War in Contemporary History and International Law, 234.

36 Convention (III) Relative to the Treatment of Prisoners of War art. 2, August 12, 1949, 

6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III].

37 “Customary International Humanitarian Law Database,” International Committee of the 

Red Cross, August 2010, http://www.icrc.org/customary-ihl/eng/docs/home [hereinafter 

Customary IHL Database].

38 Inter-Amer. Comm’n H.R., Report on Terrorism and Human Rights, OEA/Ser.L/V/

II.116 doc. 5 rev. 1 corr., ¶ 67 (2002).

39 Jean-Marie Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict,” 

International Review of the Red Cross 87, no. 857 (March 2005): 198; International Committee of the Red Cross, “Chapter 1, Rule 4. Definition of Armed Forces,” Customary 

IHL Database, accessed July 26, 2013, http://www.icrc.org/customary-ihl/eng/docs/

v1_cha_chapter1_rule4.

40 Henckaerts, “Study on Customary International Humanitarian Law: A Contribution 

to the Understanding and Respect for the Rule of Law in Armed Conflict,” 198; International Committee of the Red Cross, “Chapter 1, Rule 3. Definition of Combatants,” 

Customary IHL Database, accessed July 26, 2013, http://www.icrc.org/customary-ihl/eng/

docs/v1_cha_chapter1_rule3.

41 Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to 

the Understanding and Respect for the Rule of Law in Armed Conflict,” 207 rule 106; 

International Committee of the Red Cross, “Chapter 33, Rule 106. Conditions for Prisoner-of-War Status,” Customary IHL Database, accessed July 26, 2013, http://www.icrc.org/

customary-ihl/eng/docs/v1_cha_chapter33_rule106.

42 United States, Statement at the Diplomatic Conference leading to the adoption of the 

Additional Protocols, §§ 136–137.

43 International Committee of the Red Cross, “Chapter 1, Rule 4. Definition of Armed 

Forces,” Customary IHL Database, accessed July 26, 2013, http://www.icrc.org/

customary-ihl/eng/docs/v1_cha_chapter1_rule4.

44 Report on Terrorism and Human Rights, ¶ 69.

45 Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to 

the Understanding and Respect for the Rule of Law in Armed Conflict,” 198; International Committee of the Red Cross, “Chapter 2, Rule 7. The Principle of Distinction 

between Civilian Objects and Military Objectives,” Customary IHL Database, accessed July 

26, 2013, http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter2_rule7.
Chapter 6. Belligerency

109

46 Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict,” 207; 

International Committee of the Red Cross, “Chapter 33, Rule 107. Spies,” Customary 

IHL Database, accessed July 26, 2013, http://www.icrc.org/customary-ihl/eng/docs/

v1_cha_chapter33_rule107.

47 Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to 

the Understanding and Respect for the Rule of Law in Armed Conflict,” 208-209; International Committee of the Red Cross, “Chapter 37. Persons Deprived of Their Liberty,” 

Customary IHL Database, accessed July 26, 2013, http://www.icrc.org/customary-ihl/eng/

docs/v1_cha_chapter37.

48 International Committee of the Red Cross, “Chapter 32. Fundamental Guarantees,” Customary IHL Database, accessed July 26, 2013, http://www.icrc.org/customary-ihl/eng/

docs/v1_cha_chapter32.

49 GC III, art. 2.

50 GC III, art. 4; International Committee of the Red Cross, “Chapter 33, Rule 106. Conditions for Prisoner-of-War Status,” Customary IHL Database, accessed July 26, 2013, 

http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter33_rule106; International 

Committee of the Red Cross, “Chapter 1, Rule 3. Definition of Combatants,” Customary IHL Database, accessed July 26, 2013, http://www.icrc.org/customary-ihl/eng/docs/

v1_cha_chapter1_rule3.

51 International Committee of the Red Cross, Reaffirmation and Development of the Laws and 

Customs Applicable in Armed Conflicts (Geneva: International Committee of the Red Cross, 

1969), 101.

52 Dominic Hoerauf, “The Status of the Libyan Rebels Under the Laws of War: A Litmus 

Test For the Lawfulness of NATO’s Libyan Engagement Under U.N. Resolution 1973,” 

Phoenix Law Review, 6 (2012): 101.

53 Hoerauf, “The Status of the Libyan Rebels Under the Laws of War,” 101.

54 International Committee of the Red Cross, “Chapter 1, Rule 4. Definition of Armed 

Forces,” Customary IHL Database, accessed July 26, 2013, http://www.icrc.org/customaryihl/eng/docs/v1_cha_chapter1_rule4; International Committee of the Red Cross, Commentary, 56-57; Hoerauf, “The Status of the Libyan Rebels Under the Laws of War,” 101.

55 International Committee of the Red Cross, “Chapter 1, Rule 4. Definition of Armed 

Forces,” Customary IHL Database, accessed July 26, 2013, http://www.icrc.org/

customary-ihl/eng/docs/v1_cha_chapter1_rule4.

56 Andrew Gillman and William Johnson, eds., Operational Law Handbook (Charlottesville, 

VA: United States Army Judge Advocate General’s Legal Center and School, 2012), 62.

57 International Committee of the Red Cross, “Chapter 1, Rule 3. Definition of Combatants,” Customary IHL Database, accessed July 26, 2013, http://www.icrc.org/customary-ihl/

eng/docs/v1_cha_chapter1_rule3.

58 See International Committee of the Red Cross, “Chapter 1, Rule 4. Definition of 

Armed Forces,” Customary IHL Database, accessed July 26, 2013, http://www.icrc.org/

customary-ihl/eng/docs/v1_cha_chapter1_rule4.

59 See International Committee of the Red Cross, “Chapter 1, Rule 4. Definition of 

Armed Forces,” Customary IHL Database, accessed July 26, 2013, http://www.icrc.org/

customary-ihl/eng/docs/v1_cha_chapter1_rule4.

60 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 23.

61 Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to 

the Understanding and Respect for the Rule of Law in Armed Conflict,” 207 rule 106.

62 Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict,” 207; 

International Committee of the Red Cross, “Chapter 33, Rule 107. Spies,” Customary 
IHL Database, accessed July 26, 2013, http://www.icrc.org/customary-ihl/eng/docs/

v1_cha_chapter33_rule107.

63 Lauterpacht, Recognition in International Law, 176.

64 Michael G. Lortz, “Willing to Face Death: A History of Kurdish Military Forces – 

the Peshmerga – From the Ottoman Empire to Present-Day Iraq,” (master’s thesis, Florida State University, 2005), 62, http://diginole.lib.fsu.edu/cgi/viewcontent.

cgi?article=3203&context=etd; Jonathan C. Randal, “Bureaucratic Foot Dragging Delays 

Aid to Iraqi Kurds – Saddam’s Blockade, Delay Tactics Successful,” Seattle Times January 22, 1993, http://community.seattletimes.nwsource.com/archive/?date=19930122&s

lug=1681346.

65 Henry Maine, “Lecture V. Naval or Maritime Belligerency,” The Avalon Project, http://

avalon.law.yale.edu/19th_century/int05.asp; International Committee of the Red Cross, 

“San Remo Manual on International Law Applicable to Armed Conflicts at Sea,” International Review of the Red Cross no. 309 (1995): 583–594.

66 Prize Cases, 67 U.S. 635, 670 (1863).

67 Lortz, “Willing to Face Death: A History of the Kurdish Military Forces,” 62; Carole A. 

O’Leary, “The Kurds of Iraq: Recent History, Future Prospects,” Middle East Review of 

International Affairs 6, no.4 (December 2002): 19.

68 O’Leary, “The Kurds of Iraq: Recent History, Future Prospects,” 19.

69 Lortz, “Willing to Face Death: A History of Kurdish Military Forces,” 1–2.

70 Ibid., 60, 63.

71 Kurt Schork, “Hors de Combat,” Crimes of War, http://www.crimesofwar.org/a-z-guide/

hors-de-combat/; Lortz, “Willing to Face Death: A History of Kurdish Military Forces,” 

62.

72 Peter Malaczuk, “The Kurdish Crisis and Allied Intervention in the Aftermath of the 

Second Gulf War,” European Journal of International Law 2 (1991): 120.

73 Sam Foster Halabi, “Traditions of Belligerent Recognition: The Libyan Intervention 

in Historical and Theoretical Context,” American University International Law Review 27 

(2012): 321–389.

74 S.C. Res. 688, ¶ 1, U.N. Doc. S/RES/688 (April 5, 1991).

75 Julie Mertus, “Timeline on Iraq,” American University, http://academic3.american.

edu/~mertus/timeline_on_iraq.htm; Malaczuk, “The Kurdish Crisis and Allied Intervention in the Aftermath of the Second Gulf War,” 119–121.

76 Malaczuk, “The Kurdish Crisis and Allied Intervention in the Aftermath of the Second Gulf War,” 120; “United Kingdom House of Commons Defence Committee Report 

on Iraqi No-Fly Zones,” July 26, 2000, http://www.fas.org/news/iraq/2000/07/45306.

htm; “Iraq: No Fly Zones,” Iraq Inquiry (2009): ¶¶ 12, 29, http://www.iraqinquiry.org.uk/

media/38010/mod-no-fly-zone-r1.pdf.

77 Lortz, “Willing to Face Death: A History of Kurdish Military Forces,” 61, 66.

78 U.N. Charter arts. 34, 39.

79 Amos Shapira, “The Security Council Resolution of November 22, 1967—Its Legal 

Nature and Implications,” Israel Law Review 4, no. 2 (1969): 231.

80 Shapira, “The Security Council Resolution of November 22, 1967,” 231.

81 U.N. Charter art. 25.

82 Dominic Hoerauf, “The Status of Libyan Rebels Under the Laws of War: A Litmus Test 

for the Lawfulness of NATO’s Libyan Engagement Under U.N. Resolution 1973,” Phoenix 

Law Review 6 (2012): 107–108.

83 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 23.

84 Ibid.

85 Hoerauf, “The Status of the Libyan Rebels Under the Laws of War,” 108–112.
CHAPTER 7.

DOMESTIC LEGAL CONSTRAINTS

Chapter 7. Domestic Legal Constraints

113

Much of the analysis of persons in resistance thus far has centered 

on international legal thresholds and the application of relevant international law. Separate domestic legal considerations also exist apart 

from those under international law. These considerations determine 

the legality under US law of a given activity when US armed forces are 

introduced into or initiate hostilities abroad. It is important to remember that an activity can be lawful under domestic law but impermissible under international law. A prime example of this phenomenon is 

a presidentially authorized covert action that places armed forces in a 

denied area to conduct activities that the United States does not intend 

to acknowledge. The conduct of these activities inside the territory of 

a state without its consent would prima facie violate that state’s sovereign rights according to international law and would, therefore, be presumptively unlawful according to international law. Exceptions would 

be actions that fall within Article 51 of the UN Charter authorizing 

countries’ to use force in self-defense in the case of an armed attack, 

or Article  42 authorizing force by member states to restore international peace and security. Regardless, from a US perspective, the activity is legal and comports with statutory requirements imposed on the 

executive by Congress. An activity also can be unlawful under domestic 

law but lawful and supported under international law. For instance, a 

United Nations (UN) Security Council resolution can serve as authorization under international law for actions of foreign countries inside 

another sovereign nation, but congressional authorization under 

domestic law may be required depending on the type of action the resolution sanctions.a

 Consider US involvement in Libya in 2011 under UN 

Security Council Resolution 1973: the resolution made US involvement 

internationally lawful, but many argued that US law required further 

steps for it to be sanctioned domestically. The purpose of this chapter 

is to summarize some of the statutory sources for authorizing military 

action under US law.

The fundamental points to understand about domestic authorization for certain activities are the following: (1) there may be different 

substantive constraints on activities depending on the source of authorization; (2) how an activity is authorized may affect the legal status 

of personnel; and (3) the authorization may represent a policy position with regard to a resistance and the United States’ recognition of 

that resistance.

a Note that UN resolutions are not a prerequisite to action under US law but are often 

sought as a matter of policy before acting so that US actions are deemed legitimate by UN 

states. In the case of Libya in 2011, overt US involvement did not occur until after the UN 

Security Council voted to authorize military action, including airstrikes and a no-fly zone.
114

Legal Implications of the Status of Persons in Resistance

The authority to enter hostilities, commonly referred to as war 

powers, are divided between Congress and the president. Under the 

US Constitution, Congress has the power to declare war and fund the 

military, and the president is the commander in chief.1,b As commander 

in chief, the president is authorized to use the armed forces to respond 

to attacks against the United States. However, whether the president, 

given this authority, may send the armed forces into hostilities abroad 

without first obtaining congressional authorization is a controversial 

issue. While the president may act in self-defense of the nation without 

such authorization, longer engagements that extend beyond addressing an immediate threat arguably require congressional authorization. 

The Korean and Vietnam Wars are examples of prolonged, undeclared 

wars that, even with congressional approval, arguably came to represent examples of the war powers shifting in an unbalanced way toward 

the executive. In response, Congress passed legislation to ensure that 

the legislative branch would have more oversight in decisions that may 

concern the United States becoming involved in war.

THE WAR POWERS RESOLUTION

The Constitution divides authority over the armed forces between 

the legislative and executive branches, but it does not clarify the precise 

interrelationship between congressional and presidential authorities 

regarding war powers. The executive has authority to defend the nation 

when attacked by outsiders or threatened by an insurrection. However, 

there is much debate over the extent of executive authority to use force 

absent an attack on US personnel or property. There is also debate concerning how long the executive authority to use force persists after an 

attack or insurrection. In addition, the extent to which Congress possesses the authority to limit the executive’s actions is not entirely clear. 

One argument asserts that the executive possesses inherent authority 

to use force outside of self-defense that Congress cannot curtail. Other 

arguments maintain that any use of force not directly connected to selfdefense can be only temporary until approved by Congress or cannot 

be undertaken without express approval by Congress. At the center of 

this debate are the 1973 War Powers Resolution and, more recently, the 

2001 Authorization for the Use of Military Force.

b Article I, § 8, states that Congress shall have the power to “provide for the common 

Defence and general Welfare of the United States” and to “declare War, grant Letters of 

Marque and Reprisal, and make Rules concerning Captures on Land and Water,” as well 

as “provide for organizing, arming, and disciplining, the Militia.” Article II, § 2, states 

that “the President shall be Commander in Chief of the Army and Navy of the United 

States, and of the Militia of the several States, when called into the actual Service of the 

United States.”
Chapter 7. Domestic Legal Constraints

115

In 1973, Congress passed the War Powers Resolution (WPR, also 

commonly referred to as the “War Powers Act”) in an effort to restrict 

the president’s authority to introduce US forces into hostilities abroad 

without congressional approval.2, c The WPR permits the president to 

introduce US forces into hostilities or imminent hostilities only pursuant to a declaration of war, specific statutory authorization, or a national 

emergency created by an attack on the United States, including attacks 

on US armed forces as well as US territory, territories, and possessions.4

The president is required to consult with Congress in every possible 

instance before sending US troops into actual or imminent hostilities. 

Furthermore, the president is to regularly consult with Congress until 

US troops have been removed or are no longer engaged in hostilities.5

The statute contains a reporting requirement when the president 

sends armed forces (1) into hostilities or situations where circumstances 

clearly indicate imminent involvement in hostilities; (2) on the territory, airspace, or waters of a foreign nation while equipped for combat, 

except when it relates solely to the supply, replacement, repair, or training of combat forces; and (3) in numbers that substantially increase the 

number of US armed forces equipped for combat already located in a 

foreign country.6,d Once a report is filed or required to be filed, a clock 

begins to run that requires the president to terminate any use of armed 

forces within sixty days unless Congress (1) has declared war or has 

enacted a specific authorization for the particular use of force; (2) has 

extended the sixty-day period by law; or (3) is physically unable to 

meet because of an armed attack on the United States.8 Congress also 

reserved for itself the power to terminate the engagement of US forces 

abroad by passing a concurrent resolution.e

Note that Congress intended for the reporting requirement to 

apply to situations that fall short of actual armed conflict. The House 

report on the bill states that “the word hostilities was substituted for 

the phrase armed conflict during the subcommittee drafting process 

because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, hostilities also 

c The WPR was passed over the veto of President Nixon, and every president since 

then has interpreted the legislation as an unconstitutional infringement on the president’s 

authority as commander in chief.3

d The reports are submitted to the Speaker of the House and the president pro tempore

of the Senate and must detail the circumstances necessitating the introduction of armed 

forces abroad, the constitutional and legislative basis for the action, and the estimated 

scope and duration of the hostilities.7

e The constitutionality of 50 U.S.C. § 1544 has been called into question by INS v. 

Chadha, 462 U.S. 919 (1983). That case struck down a statutory provision that reserved to 

Congress the power to overrule a decision made by the executive branch under authority 

delegated to it by the Congress.
116

Legal Implications of the Status of Persons in Resistance

encompasses a state of confrontation in which no shots have been fired 

but where there is a clear and present danger of armed conflict.”9 The 

report further indicates that Congress anticipated the requirement 

applying to unconventional warfare (UW) activities, as it states that “a 

report would be required any time combat military forces were sent to 

another nation to alter or preserve the existing political status quo or 

to make the U.S. presence felt.”10,f

The WPR makes clear that the authority to introduce armed forces 

into hostilities cannot be inferred from any provision of law or treaty 

unless it is “intended to constitute specific statutory authorization 

within the meaning of” the resolution.12 This particular language was 

inserted to ensure that congressional authorization for the introduction of troops in a specific circumstance could not be sidestepped by 

a military appropriations act or treaty. The Vietnam War influenced 

the creation of the WPR as Congress was concerned about the use of 

resolutions, such as the Gulf of Tonkin Resolution, to justify extended 

hostilities with no sunset clause.g Despite congressional authorization 

of the Gulf of Tonkin Resolution, there was a perception that the executive was asserting more authority over the decision to send armed 

forces abroad than was intended under the Constitution and that, left 

unchecked, such authority would lead to US engagement in future hostilities without clear objectives or definitive time lines.

f Moreover, 50 U.S.C. § 1547(c) states that “the ‘introduction of United States Armed 

Forces’ includes the assignment of member [sic] of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military 

forces of any foreign country or government when such military forces are engaged, or 

there exists an imminent threat that such forces will become engaged, in hostilities.” The 

Senate Foreign Relations Committee commented in its report that the purpose of this section was “to prevent secret, unauthorized military support activities and to prevent a repetition of many of the most controversial and regrettable actions in Indochina. The ever 

deepening ground combat involvement of the United States in South Vietnam began with 

the assignment of U.S. ‘advisers’ to accompany South Vietnamese units on combat patrols; 

and in Laos, secretly and without congressional authorization, U.S. ‘advisers’ were deeply 

engaged in the war in northern Laos.”11

g The Gulf of Tonkin Resolution was a joint resolution generally regarded as authorization for the extended US engagement in Vietnam. The resolution was passed on the 

basis of Vietnamese attacks against US naval vessels “in violation of the principles of the 

Charter of the United Nations and of international law” and permitted the president, “as 

Commander in Chief, to take all necessary measures to repel any armed attack against the 

forces of the United States and to prevent further aggression.” The expiration language 

was fairly open-ended, stating that it would terminate “when the President shall determine 

that the peace and security of the area is reasonably assured or . . . by concurrent resolution of the Congress.”13
Chapter 7. Domestic Legal Constraints

117

The War Powers Resolution and Presidential Compliance

Opponents of the WPR argue that Congress, through its funding 

power, always has the authority to terminate US military actions because 

it can simply refuse to authorize the expenditures required to maintain 

military engagements. Every president has taken the position that the 

WPR infringes on the president’s inherent authority as commander 

in chief to send and command troops abroad without interference by 

Congress. During his first campaign, President Barack Obama stated 

that the “President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve 

stopping an actual or imminent threat to the nation,” which comports 

with the general thrust of the WPR.14 However, in late spring 2011, he 

sent US armed forces to Libya. In response to this action, Speaker of 

the House Boehner wrote the White House a letter advising that the 

sixty-day limit was approaching, as Congress had not authorized the 

actions. The White House responded with a thirty-eight-page report 

laying out the president’s argument that he did not need to comply 

with the WPR because the activities of US troops in Libya did not rise 

to the level of hostilities as contemplated by the act.h The president further argued that UN Security Council Resolution 1973 concerning the 

humanitarian threat posed by Muammar Qadhafi provided authority 

for his actions and ensured international legitimacy for the way the 

process was managed by the United States.16 While not dismissing the 

relevance of the WPR outright, he ultimately referred back to his executive powers and said that the actions in Libya “are in the national security and foreign policy interests of the United States, pursuant to my 

constitutional authority to conduct US foreign relations and as Commander in Chief and Chief Executive.”17

The president’s reference to an authorization in international law 

(the UN Security Council resolution) as a way of justifying his actions 

under domestic law is an interesting approach that highlights the interplay between international and domestic law within the US legal system. The international authorization in this case may have made the 

deployment of US military to Libya less controversial politically, but it 

was insufficient as domestic authorization in the eyes of Congress. This 

is one of many examples in which the issue of presidential authority to 

h The Office of Legal Counsel memorandum concluded that the president could 

rely on the constitutional power to safeguard the national interest because “at least two 

national interests that the President reasonably determined were at stake here—preserving regional stability and supporting the United Nations Security Council credibility 

and authority to order the use of military force” and that the operations in Libya do not 

amount to a war “in the constitutional sense necessitating congressional approval under 

the Declaration of War Clause.”15
118

Legal Implications of the Status of Persons in Resistance

deploy forces without obtaining congressional authorization has been 

raised. Congress has even challenged presidential actions in court. In 

1999, President Clinton deployed US forces to the Balkans under UN 

Security Council resolutions and alongside North Atlantic Treaty Organization (NATO) member states. After the sixty-day time limit passed 

without congressional authorization to continue the military actions, 

members of Congress argued that the president’s actions violated the 

WPR. Some members of Congress brought suit in federal court against 

President Clinton, but the courts found that the members of Congress 

lacked legal standing to bring the case, meaning that there was no decision on the merits of whether the WPR was violated.18

Another example of a dispute between Congress and the executive on the use of the WPR is US intervention in Lebanon in the early 

1980s. In 1983, the United States sent Marines to Lebanon as part of 

a multinational peacekeeping force (MNF) with Italy, France, and the 

United Kingdom to help bring about the withdrawal of foreign troops 

from Lebanon. The involvement was authorized under the WPR.19,i

Congress determined that the entry of US  forces into hostilities or 

imminent hostilities in accordance with the WPR occurred on August 

29, 1983, when Marines came under mortar and rocket fire by militia 

forces, resulting in two deaths and fourteen casualties.20 President Ronald Reagan made several notable reservations in his signing statement 

accompanying the resolution.j First, he noted that the sixty-day time 

constraint for authorizing or extending the deployment of US forces 

abroad was “arbitrary and inflexible” and created “unwise limitations 

on presidential authority to deploy United States forces in the interests 

of . . . United States national security.”21 Second, regarding whether the 

mortar attacks reached the threshold of hostilities that invoke the WPR 

and trigger the sixty-day notification window, he remarked that “the 

initiation of isolated or infrequent acts of violence against [US forces] 

does not necessarily constitute actual or imminent involvement in hostilities.”22 President Reagan also saw the WPR as an encroachment on 

i Marines had already been deployed to Lebanon for peacekeeping efforts. Reagan 

filed three reports with Congress under the original resolution, but he did not reference 

50 U.S.C. § 1543(a)(1), which would have triggered the sixty-day time limit. The October 

resolution was a second one initiated after the Marines came under increased fire (the 

mortar attack) and Congress called for their removal, out of concern that US soldiers 

would be exposed to additional attacks and become involved in direct hostilities. This fear 

was realized on October 23, 1983, when US and French barracks in Beirut were bombed, 

resulting in the death of 241 US soldiers. The October 1983 resolution was the first time 

that a president signed legislation invoking the WPR.

j Presidents use signing statements to draw attention to language that they disagree 

with in particular laws. Even if presidents assert that certain provisions are unconstitutional, signing statements do not have the force of law and do not modify the language of 

the statute.
Chapter 7. Domestic Legal Constraints

119

his authority as commander in chief and asserted that he would not 

cede any such authority—in other words, he would not withdraw troops 

if Congress failed to authorize an extension.

The same fundamental debate continues today within the context of the war on terrorism, except this context includes a statutory 

authorization that satisfies the WPR—the 2001 Authorization for Use 

of Military Force (AUMF). Some in Congress argue that the AUMF is 

no longer sufficient to authorize executive action, while the US government continues to rely on it in some circumstances to send forces to 

various places in the world. Accordingly, today’s debate centers on the 

interpretation of the AUMF: what does it authorize the president to do, 

against whom, and for how long?

The Authorization for Use of Military Force

In response to the terrorist attacks against the United States on 

September 11, 2001, Congress passed a joint resolution on September  14,  2001, authorizing the president to “use all necessary and 

appropriate force against those nations, organizations, or persons he 

determines planned, authorized, committed, or aided the terrorist 

attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.”23 The legislation is known 

as the Authorization for Use of Military Force (AUMF) and specifically 

states that it constitutes statutory authorization within the meaning of 

the WPR.k The AUMF is unique in that it broadly allows the president 

to use force against individuals and organizations (as opposed to just 

states) and does not limit this force to specified groups or actors. However, while the AUMF was broadly written, Congress made sure that it 

specified that force could be used only against those tied to the 9/11 

attacks, basically, Al Qaeda and the Taliban.

The executive branch has relied extensively on the AUMF to authorize a host of actions overseas, including the 2001 deployment of troops 

to Afghanistan, as well as to detain individuals at Guantanamo Bay and 

engage terrorists globally and on the high seas.l The AUMF has been 

in place for twelve years without amendment, and it continues to serve 

k The text of the legislations reads: “Consistent with section 8(a)(1) of the War Powers 

Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.”24

l There are at least thirty instances of publicly disclosed reliance on the AUMF to 

support military actions. Eighteen occurred during the Bush administration and to date 

twelve have occurred during the Obama administration. It has been used to deploy forces 

in Iraq, Somalia, Ethiopia, Yemen, Kenya, and Georgia, among others.25
120

Legal Implications of the Status of Persons in Resistance

as a source of domestic authorization for sending troops into hostilities 

abroad in certain circumstances. Since Congress was careful to limit the 

language of the authorization to those responsible for the 9/11 attacks, 

the ongoing use of the statute has been criticized by some members of 

Congress. The argument is based on the fact that the Taliban has been 

removed from power in Afghanistan and the individuals responsible 

for 9/11 have been captured or killed, so the terrorist threats that are 

ongoing that are not linked to Al Qaeda are not within the ambit of 

the AUMF. The US government has subsequently included “associated 

forces” of Al Qaeda as entities that fall within the ambit of the AUMF.m

If the AUMF has served its purpose (i.e., it has permitted the effective 

use of force against those responsible for 9/11), then some feel it is now 

out of date and not broad enough to support missions that special operations forces (SOF) have performed in places such as Yemen, Somalia, 

and northern Africa. No definitive action has been taken to amend or 

repeal the AUMF at this time. Recent Senate Armed Services Committee (SASC) hearings indicate a desire to revamp the joint resolution, 

but an amendment to the fiscal year 2014 NDAA in the House Appropriations Committee that would have imposed a sunset provision failed.

OTHER AUTHORIZING STATUTES: 

TITLE 10 AND TITLE 50

Title 10 is a domestic legal source for carrying out certain military 

activities.28 It defines the roles and mission of the military. Title 50 contains an array of statutes covering national security and foreign affairs, 

in particular covert actions. Because of fairly recent operations that 

have garnered media attention, the statutes have been widely referenced in news outlets as “Title 10/military operations” and “Title 50/

m The 2012 National Defense Authorization Act (NDAA) refers to “associated forces” 

with regard to detention authority. It authorizes the detention of “a person who was a part 

of or substantially supported al-Qaeda, the Taliban, or associated forces [emphasis added] 

that are engaged in hostilities against the United States or its coalition partners, including 

any person who has committed a belligerent act or has directly supported such hostilities 

in aid of such enemy forces.”26 In addition, Jeh Johnson, General Counsel of the Department of Defense later stated in a speech: “We have publicly defined an “associated force” 

as having two characteristics: (1) an organized, armed group that has entered the fight 

alongside al Qaeda, and (2) is a co-belligerent with al Qaeda in hostilities against the 

United States or its coalition partners.”27
Chapter 7. Domestic Legal Constraints

121

intelligence” (or Central Intelligence Agency [CIA]) operations.n This 

distinction is not wholly accurate because the Department of Defense 

(DoD) has certain authority under both Title 10 and Title 50 and routinely operates under both. However, the distinction does highlight a 

relatively complicated issue—namely, does it legally matter whether the 

CIA or military forces conduct certain operations, who has oversight, 

and who is accountable?

The categorization and conduct of these operations have implications on individuals involved in such operations. The safeguards provided to military personnel under the Geneva Conventions apply if the 

persons are conducting traditional military activities, which are discussed later in this chapter. If it is an international armed conflict (IAC), 

then prisoner of war (POW) status applies if the individuals meet the 

criteria of Article 4 of the third Geneva Convention. If it is a noninternational armed conflict (NIAC), then there is no POW status, just Common Article 3 protections and the requirements of humane treatment. 

These safeguards may be forfeited if the particular operation is not a 

military operation that the government has the option of acknowledging should it be revealed. The agency in command of an operation also 

affects this analysis. In addition, such operations are occurring outside 

of a geographically defined theater, potentially without the consent 

of the host nation. This issue raises legal concerns, particularly with 

regard to the application of law of armed conflict (LOAC).

Under Title 10, the Secretary of Defense exercises all authority, direction, and control over the DoD, including all subordinate agencies and 

commands.30 These commands are mostly geographic but also include 

US Special Operations Command (USSOCOM).31 USSOCOM commanders report to the secretary of defense, who reports to the president, 

and orders flow down from the president to the secretary of defense to 

the commander of the combatant command.32 By statute, USSOCOM 

has authority over UW.33,o UW comprises “activities conducted to enable 

a resistance movement or insurgency to coerce, disrupt, or overthrow 

a government or occupying power by operating by, with, or through 

n This usage became commonplace after the raid that killed Osama bin Laden. Comments made by CIA Director Leon Panetta likely contributed to the increased use of these 

terms. He asserted that “since this was what’s called a ‘Title 50’ operation, which is a covert 

operation, and it comes directly from the president of the United States who made the 

decision to conduct this operation in a covert way, that direction goes to me. And then, I 

am, you know, the person who then commands the mission. But having said that, I have to 

tell you that the real commander was Admiral McRaven because he was on site, and he was 

actually in charge of the military operation that went in and got bin Laden.”29

o USSOCOM also has the authority to conduct the following activities: direct action, 

strategic reconnaissance, foreign internal defense, civil affairs, military information support operations, counterterrorism, humanitarian assistance, theater search and rescue, 

and other activities as may be specified by the president or the secretary of defense.34
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Legal Implications of the Status of Persons in Resistance

an underground, auxiliary, and guerrilla force in a denied area.”35 The 

Armed Services Committees of Congress exercise oversight of operations conducted according to the Title 10 chain of command.

Title 50 governs national security intelligence gathering, analysis, 

and dissemination.36 Under Title 50, the CIA collects human intelligence (HUMINT), evaluates intelligence, disseminates intelligence, 

directs and coordinates the collection of national intelligence outside 

of the United States, and “perform[s] such other functions and duties 

related to intelligence affecting the national security as the President 

or the Director of National Intelligence may direct.”37 The director 

reports to the director of national intelligence. DoD entities are authorized to conduct intelligence activities under Title 50, but the secretary 

of defense has exclusive authority over their activities and can be limited only by the president.38 Executive Order 12,333, which was signed 

by President Reagan in 1981 to extend the powers of intelligence agencies, directs the secretary to collect, analyze, produce, and disseminate 

information and intelligence and defense-related intelligence and 

counterintelligence.39,p The secretary is to do this in response to collection and advisory tasking by the director, as well as to the extent 

required for executing the secretary’s responsibilities.

Covert Versus Clandestine

The terms covert and clandestine have similar meanings in everyday 

vernacular, but within the context of military and intelligence activities, 

they are distinct and refer to different activities. In general, clandestine

refers to the tactical secrecy of the operation itself, while covert refers 

to the secrecy of the sponsor. In a covert action, the acts carried out 

may be concealed or may be highly visible (e.g., propaganda posters). 

What remains undisclosed in a covert operation is the sponsorship of 

the activity. In a clandestine action, the acts are conducted in a way to 

p Executive Order (E.O.) 12,333 also directs all federal agencies to cooperate with 

intelligence agencies to enhance the ability to collect foreign intelligence. E.O. 13,470 

amended E.O. 12,333 by strengthening the role of the director of national intelligence, 

which was given the responsibility to “serve as the head of the Intelligence Community, act 

as the principal adviser to the President, to the NSC [National Security Council], and to 

the Homeland Security Council for intelligence matters related to national security.”40 E.O. 

13,470 also created a role for the National Security Council to review covert action and 

directs the National Security Council to “consider and submit to the President a policy recommendation, including all dissents, on each proposed covert action and conduct a periodic review of ongoing covert action activities, including an evaluation of the effectiveness 

and consistency with current national policy of such activities and consistency with applicable legal requirements. The NSC shall perform such other functions related to covert 

action as the President may direct, but shall not undertake the conduct of covert actions.”41
Chapter 7. Domestic Legal Constraints

123

ensure secrecy, where the focus is on the concealment of the operation. 

Therefore, an action can be both covert and clandestine.

Title 50 defines “covert action” as

an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of 

the United States Government will not be apparent or 

acknowledged publicly, but does not include—

(1) activities the primary purpose of which is to 

acquire intelligence, traditional counterintelligence 

activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

(2) traditional diplomatic or military activities or routine support to such activities;

(3) traditional law enforcement activities conducted 

by United States Government law enforcement 

agencies or routine support to such activities; or

(4) activities to provide routine support to the overt 

activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.42,q

Title 50 requires a presidential finding and a report to the congressional intelligence committees in order to conduct a covert action.45

Note that the statute expressly excludes from “covert action” activities 

primarily for the purpose of acquiring intelligence, traditional counterintelligence activities, traditional military activities, and routine support to traditional military activities, among others.46 Therefore, any 

action constituting one of these activities is by definition not covert and 

is exempt from the presidential finding requirement, even if sponsorship of the activity is to remain concealed.

The term clandestine is not defined by statute. DoD doctrine defines 

it as follows:

q Note that DoD doctrine defines covert differently and introduces the term clandestine in the definition (which it later defines separately): “An operation that is so planned 

and executed as to conceal the identity of or permit plausible denial by the sponsor.”43 “A 

covert operation differs from a clandestine operation in that emphasis is placed on concealment of the identity of the sponsor rather than on concealment of the operation.”44

This definition is helpful in highlighting the distinction between covert and clandestine, 

but only the statutory definition of covert is legally binding and provides the terms against 

which activities are evaluated when determining whether or not they are covert.
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Legal Implications of the Status of Persons in Resistance

An operation sponsored or conducted by governmental departments or agencies in such a way as to assure 

secrecy or concealment. A clandestine operation differs from a covert operation in that emphasis is placed 

on concealment of the operation rather than on concealment of the identity of the sponsor. In special operations, an activity may be both covert and clandestine 

and may focus equally on operational considerations 

and intelligence-related activities.47

A statutory definition and requirement of a presidential finding 

exist only for covert actions; neither exists for clandestine operations. 

Therefore, there is no need for a presidential finding or a report to the 

congressional intelligence committees when clandestine operations are 

conducted. The distinction has been noted by some DoD officials in 

differentiating between intelligence gathering and activities designed 

to influence change:

[Defense officials] contend that DOD conducts only 

“clandestine activities.” Although the term is not 

defined by statute, these officials characterize such 

activities as constituting actions that are conducted in 

secret but which constitute “passive” intelligence information gathering. By comparison, covert action, they 

contend, is “active,” in that its aim is to elicit change in 

the political, economic, military, or diplomatic behavior of a target.48

The distinction between covert and clandestine matters because it 

potentially effects the question of legal status for persons involved in 

such operations The operational lead for each may differ and different 

mechanisms of congressional oversight exist for each. First, the confusing and misleading distinction between an “intelligence/Title 50” 

operation and a “military/Title 10” operation stems from the fact that, 

statutorily, the CIA is the default lead agency for covert actions. Title 50 

reads:

Any employee, contractor, or contract agent of a 

department, agency, or entity of the United States Government other than the Central Intelligence Agency 

directed to participate in any way in a covert action 

shall be subject either to the policies and regulations of 

the Central Intelligence Agency, or to written policies 
Chapter 7. Domestic Legal Constraints

125

or regulations adopted by such department, agency, or 

entity, to govern such participation.49, r

The statute states that the president can designate which department 

or agency may participate in a covert action, but the lead agency is the 

CIA. With respect to status, it has been argued that only DoD should 

engage in clandestine activities because US military personnel presumptively benefit from POW status upon capture.s

 However, clandestine activities may be conducted in support of a covert operation, in which case, 

the lines between the two may be blurred. General Clapper, Director of 

National Intelligence, in his testimony before the Senate Armed Services 

Committee (SASC), attempts to make a distinction between the two but 

acknowledges that clandestine activities, “which may be conducted, albeit 

true, under very risky, hazardous conditions,” are connected “when you 

are doing clandestine collection as an enabler, in support of a covert activity.”52 Note that Geneva Convention protections, namely POW status, do 

not apply simply on the basis of acknowledgment that personnel are members of the military. There must first be an underlying armed conflict 

in which such protections can be invoked (i.e., a noninternational or an 

international armed conflict). So whether or not the activities are covert 

or clandestine, if they are, for example, designed to influence the political stability of a country during peacetime, the protections will not apply.

The question of the practical distinction between a covert and clandestine activity is important, particularly because Title 50 lists certain 

activities that are not covert, namely traditional military activities and 

routine support to traditional military activities, both of which can 

have characteristics that look like covert action. In particular, UW, as 

defined by DoD as “activities conducted to enable a resistance movement or insurgency to coerce, disrupt, or overthrow a government or 

r This language is supported by E.O. 12,333, which states that “the Director of the 

Central Intelligence Agency shall . . . conduct covert action activities approved by the 

President. No agency except the Central Intelligence Agency (or the Armed Forces of the 

United States in time of war declared by the Congress or during any period covered by a 

report from the President to the Congress consistent with the War Powers Resolution, Public Law 93-148) may conduct any covert action activity unless the President determines that 

another agency is more likely to achieve a particular objective.”50

s This argument was made by Director Clapper in his answers to prepared questions 

from the SASC on March 27, 2007. In his testimony, Director Clapper stated that “covert 

activities are normally not conducted, I don’t believe, by uniformed military forces . . . Of 

course, there is the connection between when you are doing clandestine collection as an 

enabler, in support of a covert activity. I believe that, to the maximum extent possible, there 

needs to be a line drawn from an oversight perspective, as well as a risk perspective. The 

important consideration here is whether if such an activity is revealed inadvertently, or an 

adversary nation, in which such an activity is being conducted, discovers it, that, in the case 

of military forces, the Government would have the option of acknowledging that, which 

then entitles those military forces proper treatment under Geneva Conventions, et cetera; 

whereas, that is not the case with covert activity as statutorily defined.”51
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Legal Implications of the Status of Persons in Resistance

occupying power,” shares characteristics with covert activities, which 

are defined as those “activities of the United States Government to 

influence political, economic, or military conditions abroad.” Is UW a 

covert activity, or is it a traditional military activity, and therefore not 

covert? And what difference does this make?

Traditional Military Activities and Routine Support

Activities that are “traditional military activities” or “routine support” to such activities are exceptions listed in the statutory definition 

of covert action (i.e., they are not covert activities and, therefore, do 

not trigger the notification and presidential finding requirements). 

Title 50 does not define these terms, but the legislative history of the 

statute provides insight on their intended meaning:t

It is the intent of the conferees that “traditional military activities” include activities by military personnel 

under the direction and control of a United States 

military commander (whether or not the U.S. sponsorship of such activities is apparent or later to be 

acknowledged) preceding and related to hostilities 

which are either anticipated (meaning approval has 

been given by the National Command Authorities 

for the activities and or operational planning for hostilities) to involve U.S. military forces, or where such 

hostilities involving United States military forces are 

ongoing, and, where the fact of the U.S. role in the 

overall operation is apparent or to be acknowledged 

publicly. In this regard, the conferees intend to draw 

a line between activities that are and are not under 

the direction and control of the military commander. 

Activities that are not under the direction and control 

of a military commander should not be considered as 

“traditional military activities.”54

This language results in a two-part test.55 First, the unacknowledged 

operation must be commanded and executed by military personnel. If 

the CIA plans and runs the operation, then it cannot be considered 

a traditional military activity. Second, the unacknowledged operation 

must be carried out in relation to overt hostilities that are either ongoing or anticipated. Anticipated in this regard means that approval from 

the National Command Authorities has been given for the activities, 

t For a detailed account of the legislative history and negotiations concerning the 

definition of covert action, see Chesney.53
Chapter 7. Domestic Legal Constraints

127

operational planning for hostilities, or both. While congressional committees need not be notified, National Command Authority approval 

refers to Secretary of Defense or presidential approval of the hostilities, the operation, or both.u It has been noted that this approval “is a 

somewhat milder form of decisionmaking rule than the one imposed 

for covert action . . . it does at least give the option for secretarial rather 

than presidential involvement,” but it “mandates a level of internal 

executive branch authorization that would preclude, for example, a 

decision by a combatant commander or anyone lower in the chain of 

command from engaging in an unacknowledged operation other than 

during times of overt hostilities.”57

Routine support to traditional military activities generally means 

unacknowledged unilateral actions taken significantly in advance of 

a possible or eventual US military operation. Again, like traditional 

military activities, the term is not defined, but the legislative history 

provides important context. The report accompanying the Senate bill 

states that:

The committee considers as “routine support” unilateral U.S. activities to provide or arrange for logistical 

or other support for U.S. military forces in the event 

of a military operation that is to be publicly acknowledged. Examples include caching communications 

equipment or weapons, the lease or purchase from 

unwitting sources of residential or commercial property to support an aspect of an operation, or obtaining 

currency or documentation for possible operational 

uses, if the operation as a whole is to be publicly 

acknowledged.58

The report also noted specific examples of activities that are not 

considered routine, many of which include efforts that may be included 

in UW activities, such as clandestine attempts to recruit or train foreign 

nationals to support US forces in the event of a military intervention 

or clandestine efforts to influence public opinion in a target country 

u Chesney notes that the agreed-upon language “came with a string attached, in 

the form of a new decisionmaking rule pursuant to which the President or Secretary of 

Defense would have to approve the operation in order for the operation to qualify as [a 

traditional military activity] under the ‘operational planning’ prong and hence avoid 

triggering finding-and-notification requirements. The key to understanding all of this is 

to appreciate just what it means for ‘operational planning’ to be authorized. This is not 

demanding in any sort of temporal sense.”56
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Legal Implications of the Status of Persons in Resistance

where US sponsorship will not be revealed.v Unlike traditional military 

activities, there is no temporal element with respect to determining 

whether an activity constitutes routine support. Rather, whether it constitutes covert activity depends on whether it is routine.

Whether an action is covert is highly dependent on the nature of 

the activities. It does not turn on whether those carrying out the acts 

are with the military or the CIA. As such, whether a UW mission is 

covert depends on the type of activities that will be undertaken, and as 

mentioned, it could be both covert and clandestine. A summary of the 

distinctions is provided in Figure 7-1.

v The report states: “The committee would regard as ‘other-than-routine’ support 

activities undertaken in another country which involve other than unilateral activities. 

Examples of such activity include clandestine attempts to recruit or train foreign nationals 

with access to the target country to support U.S. forces in the event of a military operation; 

clandestine [efforts] to influence foreign nationals of the target country concerned to take 

certain actions in the event of a U.S. military operation; clandestine efforts to influence 

and effect [sic] public opinion in the country concerned where U.S. sponsorship of such 

efforts is concealed; and clandestine efforts to influence foreign officials in third countries to take certain actions without the knowledge or approval of their government in the 

event of a U.S. military operation.”59
Chapter 7. Domestic Legal Constraints

129

Covert Clandestine

• Defined in Title 50

• Goal is to influence political, economic, or military conditions 

abroad

• Role of United States will not be apparent or acknowledged (sponsorship of the activities is undisclosed)

• Requires presidential finding and notification to congressional 

committees

• Defined by DoD doctrine, not 

statute

• Emphasis is on concealment 

of the operation, not the 

sponsorship

• No congressional reporting or 

presidential finding requirement

• May be conducted in support 

of a covert action

• An activity can be both covert 

and clandestine

Does not include:

• Traditional military activities (TMA)

◊ Not covert by definition—listed as an exception in Title 50 

definition of covert

◊ Legislative history indicates intent is that such activities:

- Are conducted under the control of a military commander

- Precede and relate to anticipated hostilities or

- Relate to ongoing hostilities in which US role is or will be 

acknowledged

• Routine support to TMA

◊ Not covert by definition—listed as an exception in Title 50 

definition of covert

◊ Legislative history states routine support activities are those 

that provide or arrange for logistical or other support for US 

military forces in the event of a military operation that is to be 

publicly acknowledged

◊ Does not include: clandestine attempts to recruit or train 

foreign nationals; or clandestine attempts to influence 

foreign nationals

• Activities primarily for intelligence gathering or counterintelligence

Figure 7-1. Distinctions between covert and clandestine and related activities.

CURRENT ISSUES

An increase in military and intelligence operations has prompted 

questions, primarily from Congress, about the authority and transparency of these activities and whether they will be carried out indefinitely. The geographic scope in which the activities may be lawfully 

conducted and whether congressional committees are being kept 

abreast of the operations in accordance with statutory requirements 

are two particular concerns. President Obama’s administration has 

taken the position that military and intelligence activities to combat 

Al Qaeda need not be linked to a battlefield (i.e., a military campaign 
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Legal Implications of the Status of Persons in Resistance

in Afghanistan).w The House Permanent Select Committee on Intelligence (HPSCI) has accused DoD of labeling its clandestine activities 

as operational preparation of the environment (OPE) to justify placing 

them under Title 10 authority and clear of oversight by congressional 

intelligence committees.

Part of this concern stems from an increased reliance on SOF 

resources after 9/11. Shortly after 9/11, then Secretary of Defense 

Rumsfeld worked to expand the tools and capabilities SOF needed 

to properly operate in Afghanistan and future theaters against terrorist targets.61 By 2011, the SOF annual budget request for fiscal year 

2012 reached $10.5 million, three times as much as its 2001 budget.62

USSOCOM also doubled in size to 60,000 personnel and gained new 

authority under President Bush’s Unified Command Plan 2004, which 

designated it the lead combatant commander for “planning, synchronizing, and as directed, executing global operations.”63,x

That year, Secretary Rumsfeld signed, with President Bush’s 

approval, the classified Al Qaeda Network Execute Order, which significantly increased the authority to attack Al Qaeda anywhere in the 

world and permitted offensive strikes in twelve states.65 The order also 

streamlined the approval process for the military to operate outside 

designated war zones. Previously, a case-by-case process determined 

approval for SOF operations.

This increased authority and expanded use of SOF in countries where there currently are no overt military activities has caused 

w Shortly after the bin Laden raid, John Brennan, while serving assistant to President 

Obama for Homeland Security and Counterterrorism, stated that “an area in which there 

is some disagreement is the geographic scope of the conflict. The United States does not 

view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ 

battlefields like Afghanistan. Because we are engaged in an armed conflict with al-Qa’ida, 

the United States takes the legal position that—in accordance with international law—we 

have the authority to take action against al-Qa’ida and its associated forces without doing 

a separate self-defense analysis each time. And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action if or when other governments 

are unwilling or unable to take the necessary actions themselves. That does not mean we 

can use military force whenever we want, wherever we want. International legal principles, 

including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in 

foreign territories.”60

x Section 1208 of the 2005 NDAA further enhances SOF’s capabilities by authorizing 

USSOCOM to spend money on foreign informants, paramilitary recruits, and equipment. 

Before this change, only the CIA could provide such funds.64
Chapter 7. Domestic Legal Constraints

131

Congress to question whether oversight mechanisms are weakening.y

Oversight of intelligence and military activities is shared by relevant 

committees, namely the Senate Select Committee on Intelligence 

(SSCI), the HPSCI, the SASC, and House Armed Services Committee (HASC). Note that Title  10 includes authority for the Secretary 

of Defense to engage in intelligence and military operations, which 

means that oversight between the committees is not divided on the 

basis of the statute under which the activity is authorized and that there 

can be overlap.z The HPSCI is concerned that activities that are actually covert are being conducted as OPE, which is a traditional military 

activity, thereby avoiding the statutory requirements of covert action.68

The definition of OPE is no longer available in unclassified US military 

publications, but it used to refer to nonintelligence activities conducted 

to prepare for possible military operations under Title 10 authority.69

The HPSCI has specifically stated that:

Clandestine military intelligence-gathering operations, even those legitimately recognized as OPE, 

carry the same diplomatic and national security risks 

as traditional intelligence-gathering activities. While 

the purpose of many such operations is to gather intelligence, DOD has shown a propensity to apply the OPE 

label where the slightest nexus of a theoretical, distant 

military operation might one day exist. Consequently, 

these activities often escape the scrutiny of the intelligence committees, and the congressional defense 

committees cannot be expected to exercise oversight 

outside of their jurisdiction.70

Perhaps in response to this concern, recent legislation has been 

introduced (in 2013) to amend Title  10 by imposing a notification 

requirement on the Secretary of Defense for sensitive military operations.71 It defines a sensitive military operation as any lethal or capture 

operation undertaken by the armed forces under the AUMF outside 

of Afghanistan. The notice will be given to the congressional armed 

services committees along with a report that explains the legal and 

y The United States reportedly has military and intelligence operations “in roughly a 

dozen countries—from the deserts of North Africa, to the mountains of Pakistan, to former Soviet republics crippled by ethnic and religious strife—the United States has significantly increased military and intelligence operations, pursuing the enemy using robotic 

drones and commando teams, paying contractors to spy and training local operatives to 

chase terrorists.”66

z The SASC and HASC exercise authority for all DoD matters relating to defense, but 

the oversight of intelligence committees is more complex, and intelligence committees 

share jurisdiction with the armed services committees. For a complete discussion of the 

oversight mechanisms, see Wall.67
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Legal Implications of the Status of Persons in Resistance

policy considerations, as well as the process for approving an operation 

against an individual or group. The bill further requires a quarterly 

briefing to the committees on counterterrorism operations, an overview of authorities and legal issues, and an outline of interagency activities and any other matters the Secretary considers appropriate.aa

Covert Action in Syria

Recent events in Syria provide a case study that illustrates several 

of the main points in this chapter. After US officials recognized the 

Syrian government’s use of chemical weapons in June 2013, the US government authorized direct military support to the opposition forces. 

Subsequently, it was reported that the congressional intelligence committees had voted to approve the measure and that President Obama 

had authorized covert action in Syria.72 The media noted that “Obama 

opted to approve the program as a CIA covert action to avoid international law restrictions on military efforts to overthrow another government and the need for wider congressional approval.”73

While there is an interplay between domestic and international 

law when it comes to the use of force abroad, one is not a stand-in 

for another. The fact that President Obama authorized a covert action 

does not of itself mean that subsequent activities of CIA operatives or 

US military personnel inside Syria would not necessarily violate Syria’s 

sovereignty under international law. Use of CIA personnel instead of 

the military does not change this. What could favorably influence the 

international perception and acceptance of US government activities 

inside Syria is the general consensus among allied nations that the Syrian government has committed atrocities against civilians and opposition forces and agreement that it used chemical weapons in violation 

of international law.74 Even so, having political support does not equate 

to having international legal authority. Moreover, despite international 

condemnation of Syria’s actions, the UN has reiterated its position that 

providing arms or exercising force is not an acceptable response.ab

Second, the assertion that the authorization of covert action avoids 

“the need for wider congressional approval” implies that the covert 

action statute alone is a sufficient source of congressional authorization for military intervention in Syria. If the president seeks to send 

aa H.R. 1904 was referred to committee on May 9, 2013, and, according to www.

govtrack.us, stands a fifty-nine percent chance of making it past the committee but only a 

sixteen percent chance of being enacted.

ab Secretary General Ban Ki-moon noted in May 2013 that “providing arms to either 

side will not help: there is no military solution [and] the only sustainable resolution will be 

through political means,” and he endorsed talks to reach a negotiated solution.75
Chapter 7. Domestic Legal Constraints

133

military personnel into Syria in anticipation of hostilities, that level 

of intervention would still require a specific statutory authorization 

under the WPR. Recall that Title 50 authorizes covert actions, which 

are activities that the United States undertakes to influence political, 

economic, or military conditions abroad. It does not authorize broad 

military intervention. The intelligence committees do not have the 

authority to formally veto intelligence actions that they are informed 

of, let alone do they have the power to approve military intervention.ac

The suggestion that their approval sidesteps the need for broader congressional approval suggests that the president seeks to engage in more 

than covert activities (i.e., broader military intervention). Otherwise, 

broader approval would not be required. In any case, their approval is 

not an exemption for congressional authorization of broader military 

engagement in hostilities.

Last, the United States’ covert action in Syria is quite public, for reasons that are not clear. While the president openly acknowledged the 

US intent to arm opposition forces, there may be several other activities that are not acknowledged. Still, this openness addresses a final 

point—that domestic authorization for certain activities may represent 

a policy position with regard to a resistance. Here, choosing to authorize a covert action and arm the opposition forces (among potentially 

other activities) is a significant gesture of support for the opposition. It 

may be that US policy is to show limited support for the opposition and 

place pressure on the existing regime but not to engage in full military intervention.78 In this sense, the openness may help further foreign 

policy goals while limiting political and military risk.ad

ac The committees’ ability to limit funding is, however, a significant power. It was 

reported that intelligence committees voted on the covert action plan. A formal vote is 

not generally a prerequisite to approve covert action. News reports have indicated that 

the approval “allows money already in the CIA’s budget to be reprogrammed for the Syria 

operation,”76 so the approval may have been related to funding. However, the approval 

may have been sought for more strategic reasons. One scholar noted that “independent 

of budget matters, getting formal intelligence committee ‘sign off’ on a covert action of 

this significance is an enormously prudent step by the President (if indeed he initiated it), 

for it strengthens the legitimacy of the covert action ex post and puts committee members 

more on the hook when something goes wrong.”77

ad The Pentagon’s assessment is that military intervention in Syria could be extremely 

risky, where “a campaign to tilt the balance from President Bashar al-Assad to the opposition would be a vast undertaking, costing billions of dollars, and could backfire on the 

United States.”79
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Legal Implications of the Status of Persons in Resistance

ENDNOTES

1 U.S. Const. art. I, § 8 & art. II, § 2.

2 War Powers Resolution, 50 U.S.C. § 1541 et seq. (2006).

3 Richard F. Grimmet, War Powers Resolution: Presidential Compliance, Report for Congress, 

RL33532 (Washington, DC: Congressional Research Service, September 2012), 2.

4 50 U.S.C. § 1541.

5 50 U.S.C. § 1542.

6 50 U.S.C. § 1543(a).

7 50 U.S.C. § 1544(a).

8 50 U.S.C. § 1544(b).

9 H.R. Rep. No. 93-287, at 7 (1973).

10 Ibid.

11 S. Rep. No. 93-220, at 24 (1973).

12 50 U.S.C. § 1547(a).

13 Gulf of Tonkin Resolution, Pub. L. 88-408, 78 Stat. 384 (1964).

14 Charlie Savage, “Barack Obama’s Q&A,” Boston Globe, December 20, 2007, http://www.

boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/.

15 “Authority to Use Military Force in Libya,” Op. Off. Legal Counsel (April 1, 2011) available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf.

16 Tom Curry, “Obama, Libya and the Authorization Conflict,” NBC News, March 22, 2011, 

http://www.nbcnews.com/id/42201792/ns/politics/t/obama-libya-authorization-conflict/#.Ug-n1r8mair.

17 Ibid.

18 Campbell v. Clinton, 203 F.3d 19, 23-24 (D.C. Cir. 2000).

19 Multinational Force in Lebanon Resolution, Pub. Law No. 98-119, 97 Stat. 805 (1983).

20 Multinational Force in Lebanon Resolution § 2.

21 Ronald Reagan, “Statement on Signing the Multinational Force in Lebanon Resolution, October 12, 1983,” The American Presidency Project, http://www.presidency.ucsb.edu/

ws/?pid=40624.

22 Ibid.

23 Authorization for Use of Military Force, Pub. Law No. 107-40, § 2(a), 115 Stat. 224 (2001).

24 Authorization for Use of Military Force § 2(b)(1).

25 Matthew Weed, 2001 Authorization for Use of Military Force: Background in Brief, Report for 

Congress, 7-4589 (Washington, DC: Congressional Research Service, July 2013), http://

www.fas.org/sgp/crs/natsec/aumf-071013.pdf.

26 National Defense Authorization Act for Fiscal Year 2012, Pub. Law No. 112-81 § 1021(b)

(2), 125 Stat. 1297, 1562 (2011).

27 Jeh Charles Johnson, “The Conflict Against Al Qaeda and its Affiliates: How Will 

it End,” Oxford University, November 30, 2012, available at http://www.lawfareblog.

com/2012/11/jeh-johnson-speech-at-the-oxford-union/#_ftn11.

28 10 U.S.C. § 101, et seq. (2006).

29 Leon Panetta, interview by Jim Lehrer, PBS Newshour, “CIA Chief Panetta: Obama Made 

‘Gutsy’ Decision on Bin Laden Raid,” May 3, 2011, http://www.pbs.org/newshour/bb/

terrorism/jan-june11/panetta_05-03.html.

30 10 U.S.C. § 113(b) (2006).

31 10 U.S.C. § 167 (2006).

32 10 U.S.C. § 162(b) (2006).

33 10 U.S.C. § 167(j)(3) (2006).
Chapter 7. Domestic Legal Constraints

135

34 10 U.S.C. § 167(j) (2006).

35 US Department of Defense, Joint Publication 1-02, Dictionary of Military and Associated 

Terms, November 8, 2010 (as amended through July 16, 2013), 291.

36 US Department of the Army, Training Circular No. 18-01, Special Forces Unconventional Warfare (Washington, DC: Headquarters, Department of the Army, 2010), Chapter 3, ¶ 3-90.

37 50 U.S.C. § 403-4a(d).

38 50 U.S.C. § 403-5(b)(5).

39 Exec. Order No. 12,333, 46 Fed. Reg. 59,941 (December 4, 1981), ¶ 1.10, amended by Exec.

Order No. 13,470, 3 C.F.R. 218.

40 Exec. Order No. 12,333, 46 Fed. Reg. 59,941, ¶ 1.3 (December 4, 1981), amended by Exec. 

Order No. 13,470, 3 C.F.R. 218, 220 (2008).

41 Exec. Order No. 12,333, 46 Fed. Reg. 59,941, ¶ 1.2(b) (December 4, 1981), amended by

Exec. Order No. 13,470, 3 C.F.R. 218, 219-220 (2008).

42 50 U.S.C. § 413b(e) (2006) (emphasis added).

43 Joint Publication 1-02, Dictionary of Military and Associated Terms, 66.

44 Ibid., 41.

45 50 U.S.C. § 413b.

46 50 U.S.C. § 413b(e).

47 Joint Publication 1-02, 41.

48 Marshall Curtis Erwin, Covert Action: Legislative Background and Possible Policy Questions, 

RL33715 (Washington, DC: Congressional Research Service, April 2013), http://www.

fas.org/sgp/crs/intel/RL33715.pdf.

49 50 U.S.C. § 413b(a)(3).

50 Exec. Order No. 12,333, 46 Fed. Reg. 59941, ¶ 1.7(a)(4) (December 4, 1981), as amended 

by Exec. Order No. 13,470, 3 C.F.R. 218, 228 (2008).

51 Nominations Before the Senate Armed Services Comm., First Session, S. Hrg. 110-370, 

110th Cong. 419-420 (2007) (statement of Lieutenant General James Clapper USAF 

(Ret.)), available at http://www.gpo.gov/fdsys/pkg/CHRG-110shrg42309/pdf/CHRG110shrg42309.pdf.

52 Ibid.

53 Robert Chesney, “Military-Intelligence Convergence and the Law of the Title 10/Title 50 

Debate,” Journal of National Security Law & Policy 5 (2012): 539.

54 H.R. Rep. No. 102-166, at H5905 (1991) (Conf. Rep.).

55 Chesney, “Military-Intelligence Convergence and the Law of the Title  10/Title  50 

Debate,” 598–599.

56 Ibid., 599.

57 Ibid., 600.

58 S. Rep. No. 102-85, at 47 (1991).

59 Ibid.

60 John O. Brennan, “Strengthening Our Security by Adhering to Our Values and Laws” 

(remarks, The White House, September 16, 2011), http://www.whitehouse.gov/the-pressoffice/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-ourvalues-an.

61 Jennifer Kibbe, “Conducting Shadow Wars,” Journal National Security Law & Policy 5 

(2012): 375.

62 Ibid., 376.
136

Legal Implications of the Status of Persons in Resistance

63 Capability and Force Structure of the United States Special Operations Command 

to More Effectively Combat Terrorism: Hearing Before the Subcomm. on Emerging 

Threats and Capabilities of the Senate Armed Services. Comm., 109th Cong. 3 (2006) 

(statement of Vice Admiral Eric T. Olson, U.S. Navy Deputy Commander, U.S. Special 

Operations Command).

64 Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 

108-375, § 1028, 118 Stat. 1811, 2086-87 (2004).

65 Kibbe, “Conducting Shadow Wars,” 376.

66 Scott Shane, Mark Mazzetti, and Robert F. Worth, “A Secret Assault on Terror Widens on 

Two Continents,” New York Times, August 15, 2010.

67 Andru E. Wall, “Demystifying the Title  10/Title  50 Debate: Distinguishing Military 

Operations, Intelligence Activities, & Covert Action,” Harvard National Security Journal 3 

(2011): 101–108.

68 H.R. Rep. No. 111-186, at 48-49 (2009).

69 Wall, “Demystifying the Title 10/Title 50 Debate: Distinguishing Military Operations, 

Intelligence Activities, & Covert Action,” 137.

70 H.R. Rep. No. 111-186, at 49 (2009).

71 Oversight of Sensitive Military Operations Act, H.R. 1904, 113th Congress (2013).

72 Karen De Young, “Congressional Panel Approves Arms Aid to Syrian Opposition,” 

Washington Post, July 22, 2103, http://articles.washingtonpost.com/2013-07-22/

world/40728996_1_obama-administration-syria-civil-war; see also Mark Landler and 

Thom Shanker, “Pentagon Lays Out Options for U.S. Military Effort in Syria,” New 

York Times, July 22, 2013, http://www.nytimes.com/2013/07/23/world/middleeast/

pentagon-outlining-options-to-congress-suggests-syria-campaign-would-be-costly.

html?hp&_r=1&.

73 De Young, “Congressional Panel Approves Arms Aid to Syrian Opposition.”

74 “UN Human Rights Council Calls for End to Syria Fighting, Condemns Foreign Fighters,” 

UN News Centre, May 29, 2013, http://www.un.org/apps/news/story.asp?NewsID=45033#.

Ugzc322ZZS0.

75 Ibid.

76 De Young, “Congressional Panel Approves Arms Aid to Syrian Opposition.”

77 Jack Goldsmith, “The Remarkably Open Syrian Covert Action,” Lawfare, July 23, 2013, 

http://www.lawfareblog.com/2013/07/the-remarkably-open-syrian-covert-action/.

78 Ibid.

79 Mark Landler and Thom Shanker, “Pentagon Lays Out Options for U.S. Military Effort 

in Syria,” New York Times, July 22, 2013, http://www.nytimes.com/2013/07/23/world/

middleeast/pentagon-outlining-options-to-congress-suggests-syria-campaign-would-becostly.html?hp&_r=1&.
APPENDICES

Appendices

139

APPENDIX A: ACRONYMS

ANC African National Congress 

AUMF Authorization for Use of Military Force

CIA Central Intelligence Agency 

CIL Customary international law 

COIN Counterinsurgency 

CSO Civil Society Organization

CSRT Combatant Status Review Tribunals 

DoD Department of Defense 

FID Foreign Internal Defense 

FRY Federal Republic of Yugoslavia

GC Geneva Convention

HASC House Armed Services Committee

HPSCI House Permanent Select Committee on Intelligence

HRL Human Rights Law 

HUMINT Human Intelligence

IAC International Armed Conflict 

ICRC International Committee of the Red Cross

ICTY International Criminal Tribunal for the 

Former Yugoslavia 

IHL International Humanitarian Law 

IHRL International Human Rights Law

IMET International Military and Education Training 

IW Irregular Warfare 

JHU/APL Johns Hopkins University Applied Physics Laboratory

KLA Kosovo Liberation Army 

KFOR Kosovo Protection Forces

LOAC Law of Armed Conflict 

LOW Law of War

MNF Multinational Peacekeeping Force

NAACP National Association for the Advancement of 

Colored People 

NATO North Atlantic Treaty Organization

NDAA National Defense Authorization Act

NGO Nongovernmental Organization

NIAC Noninternational Armed Conflict

NSAD National Security Analysis Department 

NUSAS National Union of South African Students 

OPE Operational Preparation of the Environment
140

Legal Implications of the Status of Persons in Resistance

POW Prisoner of War 

PUK Patriotic Union of Kurdistan

PVO Private Voluntary Organization

SASC Senate Armed Services Committee

SOF Special Operations Forces 

SORO Special Operations Research Office 

SSCI Senate Select Committee on Intelligence 

TMA Traditional Military Activities

UN United Nations 

UNHCR United Nations High Commissioner for Refugees 

UNHCR United Nations High Commissioner for Refugees

UNOCI United Nations Operation in Côte d’Ivoire

USASOC US Army Special Operations Command 

USSOCOM US Special Operations Command

UW Unconventional Warfare 

WPR War Powers Resolution 
Appendices

141

APPENDIX B: GLOSSARY

Armed Conflict: A broad category of hostilities featuring violent engagements between states, or between states and nonstate groups; the drafters of the Geneva Conventions chose this term to define when the 

Conventions apply because it is broader than war; there are two classes 

of armed conflicts, noninternational and international, see also Noninternational Armed Conflict and International Armed Conflict.

Additional Protocol I: A multilateral treaty signed in 1977 that supplements the protections available to participants in international armed 

conflicts under Common Article 2 and noninternational armed conflicts that are considered fights, in the exercise of self-determination, 

against colonial domination, alien occupation, and racist regimes.

Additional Protocol II: A multilateral treaty signed in 1977 that supplements the protections available to participants in noninternational 

armed conflicts that “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.”

Belligerency: A category of resistance governed by the international 

humanitarian law applicable to international armed conflicts; a belligerency features high-intensity violence against the standing government by a highly organized resistance movement.

Belligerent: A person who directly participates in the fighting during an 

armed conflict. Belligerents can be privileged or unprivileged depending on whether they satisfy the criteria of customary IHL and GC III 

Article 4. Privileged belligerents receive protections, such as immunity 

from prosecution for their acts related to the conflict, and are also 

known as combatants or lawful combatants. Unprivileged belligerents 

do not receive protections, such as prisoner of war status, because they 

fail to comply with customary IHL and GC III Article 4 regarding lawful participation in hostilities. Unprivileged belligerents are also known 

as unlawful combatants, although the term unlawful combatant is inaccurate because combatants are by definition lawful participants in an 

armed conflict.

Common Article 2: One of several articles identical in all four treaties that 

constitute the Geneva Conventions, referred to as “Common Articles”; 
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Legal Implications of the Status of Persons in Resistance

Common Article 2 defines when the Geneva Conventions apply: “the 

present Convention shall apply to all cases of declared war or of any 

other armed conflict which may arise between two or more of the High 

Contracting Parties, even if the state of war is not recognized by one of 

them.”

Common Article 3: One of several articles identical in all four treaties 

that constitute the Geneva Conventions, referred to as “Common Articles”; Common Article 3 provides: “In the case of armed conflict not 

of an international character occurring in the territory of one of the 

High Contracting Parties, each Party to the conflict shall be bound 

to apply, as a minimum,” this article’s provisions; it defines the minimum protections available to participants in an armed conflict not of 

an international character; it does not define an armed conflict not of 

an international character, but scholars and jurists have determined 

that it is applicable to the bottom threshold for armed conflicts, and 

that the threshold depends on the intensity of the hostilities and the 

organization of the nonstate party.

Counterinsurgency (COIN): Comprehensive civilian and military efforts 

by a host nation or by another state to assist the host nation to defeat an 

insurgency and to address any core grievances.

Denied Area: An area under enemy or unfriendly control in which 

friendly forces cannot expect to operate successfully within existing 

operational constraints and force capabilities.

Domestic Law: The law of a state that governs the behavior of its citizens, 

as well as behavior between those citizens and the state itself.

Foreign Internal Defense (FID): The participation of civilian and military 

agencies of one government in programs used by another government 

to free and protect the second government’s society from subversion, 

lawlessness, insurgency, terrorism, and other threats to its security.

Geneva Conventions of 1949: Four treaties originally signed in 1949 that 

define and provide protections for participants in armed conflicts; they 

have been signed by almost every state.

Host Nation: The state in which the resistance takes place.

Illegal Political Acts: nonviolent actions that violate the laws of the host 

nation and are used to cause political change.
Appendices

143

Insurgency: A category of resistance governed by the international 

humanitarian law applicable to noninternational armed conflicts featuring intense and organized violence against the standing government.

International Armed Conflict: A class of conflict under international 

humanitarian law to which the full protections apply, including the 

Geneva Conventions, Additional Protocol I, and customary international humanitarian law.

The International Criminal Tribunal for the Former Yugoslavia: An ad hoc 

court established by a statute adopted by a resolution of the United 

Nations Security Council to investigate and prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.

International Human Rights Law (IHRL): The law that governs how states 

interact with their citizens under their domestic laws and policies.

International Humanitarian Law (IHL): The law that governs both the 

treatment of persons participating in armed conflicts and the methods 

and means of waging armed conflicts.

International Law: The law that governs relations between states.

Law of Armed Conflict (LOAC): The body of law formerly known as the 

law of war and that includes IHL and IHRL; it comprises treaty-based 

law as well as customary law.

Noninternational Armed Conflict (NIAC): A class of conflict under IHL to 

which limited protections apply, including at least Common Article 3 of 

the Geneva Conventions, and possibly Additional Protocol II if the conditions set out in its first article are met; noninternational bears its literal 

meaning of “not between nations,” meaning that these conflicts occur 

between one or more nonstate groups and a state, but not between two 

or more states.

Rebellion: A category of resistance governed by domestic criminal law 

and that falls short of an armed conflict but features violence.

Resistance: Opposition to a standing government, its components, or its 

policies and practices.

Standing Government: The administration exercising authority and carrying out governmental affairs over the majority of the host nation; a 

standing government need not be the lawful or rightful government, 
144

Legal Implications of the Status of Persons in Resistance

only the government that is exercising power over the nation and against 

which the resistance is operating (for instance, the United States did 

not recognize the Taliban as the lawful government of Afghanistan, 

but when the United States invaded Afghanistan in 2001, the Taliban 

exercised authority over the majority of Afghanistan and so constituted 

the standing government until it was ousted).

Status: The position of an individual or group under the applicable law, 

including the protections available to the individual or group on the 

basis of that position.

Status of Forces Agreement (SOFA): A bilateral agreement between a state 

sending forces to be stationed abroad and the state receiving those 

forces; it defines what visiting forces are permitted to do and to which 

state’s jurisdiction visiting forces are subject.

Unconventional Warfare (UW): Activities conducted to enable a resistance 

movement or insurgency to coerce, disrupt, or overthrow a government 

or occupying power by operating through, by, or with an underground, 

auxiliary, and guerilla force in a denied area.

United Nations Security Council: An organ of the United Nations that 

is given specific authority and power by the United Nations Charter, 

including exclusive authority over the use of force, except when in 

self-defense.

US Personnel: Members of the US military.

Use of Legal Processes for Political Advantage: The employment of methods and processes provided or permitted by the law of the host nation 

for creating or influencing political change.
Appendices

145

APPENDIX C: BACKGROUND ON INTERNATIONAL 

LAW AND THE LAW OF ARMED CONFLICT

Sources of Law

Warfare today is different than it was in the mid-twentieth century. 

Formally declared wars are no longer the norm, and armed conflicts 

often lack obvious battlefields or clear enemies. This reality presents 

unique circumstances that can make the application of existing law difficult. To make matters more complicated, the framework for analyzing conflict activities is an intricate mix of international and domestic 

law derived from various sources including treaties, custom, legislation, 

and judicial decisions.

Custom, Treaties, Domestic Law, and Judicial Decisions

Military operations involve complex questions related to international law. International law establishes certain limitations on the scope 

and nature of command options and creates obligations related to the 

conduct of US forces. International law is generally formed through the 

observed custom of states, treaties (meaning international agreements, 

whatever they might be called), general principles of law accepted 

amongst so-called civilized nations, the writings of experts and scholars, and international judicial decisions. Customary international law 

(CIL, or sometimes simply referred to as “custom”) and treaties are the 

two primary sources of the law of armed conflict (LOAC). CIL constitutes those rules that derive from general practice accepted as law, as 

opposed to written rules. It reflects the acceptance of a practice such 

that states no longer view compliance as discretionary but, rather, as a 

legal obligation.1 CIL includes the law of war (LOW) before they were 

codified in the Hague and Geneva Conventions.

One complicated aspect of CIL is that acknowledgement by a state 

of certain norms as custom is not always clear and is often a matter 

of policy. Recognizing a norm through state practice will bind a state 

if that norm is already custom. If the norm is not yet custom, then 

states could be bound by unilateral declarations showing the intent to 

be bound. For example, the idea that many provisions of the Geneva 

Conventions are considered custom has gained increasing momentum, 

which is significant because such provisions bind parties regardless of 

whether they have become a party to those conventions.a For example, 

a For a more detailed discussion on the Geneva Conventions and their status as CIL, 

see The Geneva Conventions section.
146

Legal Implications of the Status of Persons in Resistance

the United States has not ratified Additional Protocols I and II of the 

Geneva Conventions but has stated that it considers many aspects of 

Protocol I custom.b

According to the Vienna Convention on the Law of Treaties, treaties are formal agreements between two or more states. The US Constitution recognizes treaty obligations of the United States as binding, 

and the Supreme Court has held that international law, including custom, is part of US law.2,3

 A state may sign but not ratify a treaty, in which 

case the extent to which the state is bound is limited to not violating the 

object and purpose of the treaty. Under US law, the Senate must ratify 

a treaty by a two-thirds vote of approval. In an unorthodox measure, 

the United States “unsigned” the 1998 Rome Statute creating the International Criminal Court in order to avoid any perceived obligations 

under that treaty.

Some treaties may require states to adopt domestic legislation that 

conforms to the terms of the particular treaty at issue. An example of 

this would be the Rome Statute, which formally assigns jurisdiction to 

the International Criminal Court. This creates a nexus between domestic and international law that can become jurisdictionally complex. In 

LOAC, the most significant treaties are the Geneva Conventions and 

their Additional Protocols, and these were among the first treaties to 

require states to enact domestic legislation to enforce criminal violations. They require states to enact legislation to prosecute individuals 

who commit grave breaches and to seek out and try such individuals.4, c

The United States enforces the provisions of the Conventions against its 

own soldiers through the Uniform Code of Military Justice. To charge 

civilians, it created the War Crimes Act of 19965 and the Military Extraterritorial Jurisdiction Act.6

 Beyond domestic law, other regulations 

and guidance relevant to interpreting and enforcing treaty obligations 

include executive orders, agency policies or missions, and host nation 

laws that personnel may be subject to under certain circumstances.

In LOAC, decisions of domestic courts, military tribunals, and international courts can clarify the law applied to armed conflicts. Before 

World War II, there was very little case law relevant to LOAC, but the 

opinions coming out of the Nuremberg tribunals are significant. Other 

tribunals, such as the International Criminal Tribunal for Rwanda and 

the International Criminal Tribunal for the Former Yugoslavia provide 

additional and more recent interpretations of LOAC and international 

humanitarian law (IHL). Unlike in US law, judicial precedent is not 

b For a more detailed discussion of the US position regarding Protocols I and II, see 

the Additional Protocols I and II section.

c The Geneva Convention for the Amelioration of the Condition of the Wounded and 

Sick in Armed Forces in the Field, hereinafter referred to as GC I.
Appendices

147

formally binding in international law, and the opinions rendered by 

international tribunals do not automatically bind US courts.d

Terminology: The Relationship Between Law of War, Law 

of Armed Conflict, International Humanitarian Law, and 

International Human Rights Law

The sources of law described in the previous section are relevant 

across international law. There are several specific terms used to 

describe the body of law applicable to participants in resistance movements. These terms refer to separate areas of law that are related, but 

the terms are often used interchangeably in a way that does not account 

for their important differences: the law of war (LOW), the law of armed 

conflict (LOAC), international humanitarian law (IHL), and international 

human rights law (IHRL). Of the four areas of law, probably the least significant distinction exists between LOW and LOAC, with some scholars 

arguing that either term is acceptable, mainly because the Geneva Conventions refer to both war and armed conflict.e

 LOW has its origins in 

rules of the battlefield that have been around for centuries. LOAC is a 

fairly new construction and is associated with laws for the battlefield, 

the main difference being that laws have penalties that can be enforced 

within a specific jurisdiction, and rules provide a standard for conduct 

that do not necessarily carry consequences if violated.8 Recognition of 

a state of war is no longer a prerequisite for the application of LOAC; 

it is its existence that is determinative. As noted in the commentary to 

the 1949 Geneva Conventions:

The substitution of [armed conflict] for the word “war” 

was deliberate. It is possible to argue almost endlessly 

about the legal definition of “war.”  .  .  .  The expression “armed conflict” makes such arguments less easy. 

Any difference arising between two States and leading 

to the intervention of armed forces is an armed conflict. . . . It makes no difference how long the conflict 

lasts, or how much slaughter takes place.9

d The relevance of judgments and opinions of international courts has become a 

politicized issue in the United States and was addressed by the Supreme Court in Medellin 

v. Texas. The Court indicated that consenting to the jurisdiction of international tribunals 

and being bound by their decisions are two different matters.7

e 1949 Geneva Convention, common Article 2 states “the present Convention shall 

apply to all cases of declared war or of any other armed conflict which may arise between two 

or more of the High Contracting Parties, even if the state of war is not recognized by one 

of them.” Convention (III) relative to the Treatment of Prisoners of War art. 2, August 12, 

1949, 6 U.S.T. 3116, 75 U.N.T.S. 135 (emphasis added).
148

Legal Implications of the Status of Persons in Resistance

The Army Law of Armed Conflict Deskbook is consistent with this 

notion, and regarding the “war” versus “armed conflict” debate, it 

states: “Article 2 common to all four Geneva Conventions ended this 

debate. Article  2 asserts that LOAC applies in any instance of international armed conflict.”10,f

 It is clear that not all armed conflicts are 

wars, but this point is irrelevant because the body of law referred to as 

LOW or LOAC is triggered by armed conflict, which has a lower threshold than war. For purposes of this document, the term law of armed 

conflict is used. This usage accounts for conflicts that are not formally 

declared wars, and the term is consistent with current military guidance and usage in international treaties.

Human rights and humanitarian goals have become a part of 

LOAC, in substantial part because of the influence of the Geneva Conventions and their proscription of certain conduct to protect victims 

of war. To some, law of war and law of armed conflict are outdated terms 

that can readily be replaced with the term international humanitarian 

law, but this reference does not appropriately capture the content of 

LOAC that includes, for example, the permissible manner in which 

individuals may be targeted.12 More accurately, IHL makes up a part 

of LOAC but does not subsume it. Rather, it refers to treaty provisions 

and customary norms that are intended to limit the effects of armed 

conflict for humanitarian reasons. Furthermore, LOAC more broadly 

includes concepts the primary purposes of which are not humanitarian 

(e.g., proportionality, where injuries to civilians and damage to civilian 

objects may not be excessive compared to the anticipated concrete and 

direct military advantage, but where civilian deaths are not altogether 

prohibited).

IHL and IHRL are often used interchangeably, which can distort 

the relationships among LOAC, IHL, LOW, and IHRL. The tenets of 

IHRL are generally considered the minimum protections due to civilians under any circumstance, including peacetime, unless an exception applies, such as a public emergency that threatens the life of the 

state. IHL applies in armed conflicts. IHRL concerns the relationship 

between states and individuals within their territories, although a 

debate exists regarding the applicability of IHRL obligations of states 

toward persons outside their jurisdiction. The tenet of IHRL is the 

general protection of citizens’ individual rights against government 

misconduct, whereas LOAC imposes obligations on states that protect 

classes of persons (such as civilians and those placed hors de combat) 

during the specific period of an “armed conflict.”13

f The Army Law of War Handbook uses the terms together, referring to the application 

of the “law of war during all armed conflicts” and stating that the “law of war is triggered 

by conflict.”11
Appendices

149

States currently have different interpretations of the relationship 

between LOAC and IHRL. The United States views the two bodies of 

law as separate systems of protection that apply in different circumstances and adheres to the concept that the more specific rule displaces 

the more general.14,g In this context, LOAC has more specific triggering 

mechanisms and trumps the application of peacetime IHRL in armed 

conflict. The European view is that IHRL always applies in conjunction with LOAC on the battlefield.h The United States most recently 

stated in the Fourth Periodic Report to the United Nations High Commissioner for Refugees (UNHCR) that IHRL and LOAC “are in many 

respects complementary and mutually reinforcing. . . . Determining the 

international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination.”16 This emerging view will likely evolve with the development of 

additional international case law and any changes in US policy regarding what provisions may be enforceable as CIL. Despite a consensus 

that there is some overlap, LOAC is triggered by conflict, but no such 

trigger is required to invoke IHRL.

Policy Note. Current US policy is to apply the law of war (i.e., LOAC)

during all operations. DoD Directive 2311.01E17 requires all members of 

the armed forces to “comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military 

operations.”

Principles of Law of Armed Conflict

There are four key principles related to LOAC. They generally apply 

to what is termed “the means and methods,” or how the parties conduct 

themselves once an armed conflict is underway. The “means” refer to 

the weapons used to fight. The “methods” refer to the tactics of fighting. Put another way, it is the determination of who or what may be targeted and how. The four principles central to that analysis are military 

necessity, distinction, proportionality, and humanity.

Analyzing conduct within the context of these principles is a complex task that often requires consulting what principles exist as customary law, multiple treaties, case law, rules of engagement, and policy 

directives, as well as considering coalition and host nation concerns. 

g The legal maxim is lex specialis derogat lex generalis.

h This view has been adopted by the International Court of Justice.15
150

Legal Implications of the Status of Persons in Resistance

The principles are explained here to provide the reader a general 

familiarity with the terms.i

Military Necessity

Military necessity includes two elements: that (1) there is a military 

requirement to undertake a certain measure, (2) the measure is not forbidden by LOW. A commander must articulate a military requirement, 

select a measure to achieve it, and ensure that neither the requirement 

nor the measure to achieve it violates LOAC.

Distinction

The principle of distinction is sometimes referred to as the “grandfather of all principles,” as it forms the foundation for much of the 

Geneva Tradition of LOAC. The essence of the principle is that military attacks should be directed at belligerents, meaning those who are 

fighting, and military targets, and not civilians, meaning those who 

are not fighting, or civilian property. Additional Protocol I, Article 48, 

sets out the rule: “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.”

Proportionality

The test to determine whether an attack is proportionate is found 

in Additional Protocol I, Article 51(5)(b): if launched, “an attack which 

may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would 

be excessive in relation to the concrete and direct military advantage 

anticipated” would violate the principle of proportionality. The same 

standard is echoed in Article 57 of Additional Protocol I. If the target is purely military with no known civilian personnel or property in 

jeopardy, no proportionality analysis need be conducted. However, this 

circumstance is uncommon.

Humanity

Sometimes referred to as the principle of unnecessary suffering or 

humanity, this principle requires military forces to avoid inflicting gratuitous violence on the enemy. It arose originally from humanitarian 

concerns over the suffering of wounded soldiers and was codified as 

a weapons limitation: “It is especially forbidden . . . to employ arms, 

i These definitions are taken from the Army Judge Advocate General’s Law of Armed 

Conflict Deskbook.

18
Appendices

151

projectiles or material calculated to cause unnecessary suffering.”19

More broadly, this principle also encompasses the humanitarian spirit 

behind the Geneva Conventions to limit the effects of war on the civilian population and property and serves as a counterbalance to the 

principle of military necessity.

THE GENEVA CONVENTIONS

The Geneva Conventions of 1949 are four international treaties 

that, along with the Additional Protocols of 1977 and 2005, serve as 

the cornerstone of IHL and LOAC.j Every state has ratified the Geneva 

Conventions of 1949, and many of these treaty provisions are now 

considered customary law.k The purpose of these treaties is to protect 

victims and participants of war, including combatants and other belligerents, prisoners of war (POWs), the sick and wounded and shipwrecked, and civilians.

Each of the four treaties that forms the Geneva Conventions of 1949 

focuses on protections for a specific category of personnel and applies 

in any armed conflict (hereinafter referred to as GC I, GC II, GC III, 

and GC IV).21,22,23,24 The treaties contain an identical Article 3, which 

extends the protections of the treaties to armed conflicts not of an 

international character, or noninternational armed conflicts (NIACs), 

such as armed uprisings and insurrections.l Known as “Common Article 3,” it has been referred to as “the Convention in miniature” because 

it requires that a range of basic humanitarian protections apply to participants and civilians during internal armed conflicts.26 The Conventions also contain a Common Article 2, which makes their provisions 

applicable in “all cases of declared war or of any other armed conflict 

which may arise between two or more High Contracting Parties.”27 The 

Common Articles and their relevance to conflict status are discussed in 

Chapter 5. Insurgency and Chapter 6. Belligerency.

j The 1949 Geneva Conventions built on earlier efforts that resulted in the 1929 

Geneva Conventions. While the history of LOAC encompasses more than the creation and 

ratification the Geneva Conventions, the principles embodied in these treaties concerning the treatment of both privileged and unprivileged belligerents during armed conflict 

are fundamental to the analysis of LOAC. For a detailed discussion on the development of 

LOAC and the history of the Geneva Conventions, see Solis.20

k Not all countries have ratified the Additional Protocols. See the Objections section 

for a discussion on objections to Protocols I and II.

l Common Article 3 was included to emphasize the “principle of respect for the 

human personality” regardless of whether the conflict occurs between two recognized 

states (i.e., is international in nature). The drafters determined that “the same logical 

process could not fail to lead to the idea of applying the principle to all cases of armed 

conflicts, including those of an internal character.”25
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Legal Implications of the Status of Persons in Resistance

In 1977, the four Geneva Conventions were supplemented by Additional Protocols I and II. Additional Protocol I protects civilians during 

international armed conflicts (IACs), expands on the provisions of the 

Geneva Conventions, and extends those protections to national liberation movements, namely internal conflicts against colonial domination, alien occupation, and racist regimes. Additional Protocol II first 

sets a higher threshold than Common Article 3 for its application, and 

then it expands the protections provided by Common Article 3, such 

as specific provisions for the protection of children and the protection 

of “objects indispensable to civilian survival.”28,29 In 2005, Protocol III 

amended the Conventions to include the red crystal symbol as a protective emblem that may be displayed by those performing humanitarian 

services such as medics and chaplains.m Provisions of the Conventions 

relevant to individual status are discussed in detail in Chapter 5. Insurgency and Chapter 6. Belligerency.

Policy Note. The Bush administration originally stated that the Conventions would be respected as a matter of policy but did not apply to detainees held in Guantanamo Bay who were captured during the conflict 

with Al Qaeda. The Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557 

(2006) held that the Geneva Conventions do apply to detainees who were 

captured during the conflict with Al Qaeda and that Common Article 3 

had been violated.

Additional Protocols I and II

Additional Protocols I and II are supplemental treaties that were 

adopted to provide added protections to victims of war where the 

Geneva Conventions were deemed insufficient. They add to but do not 

amend the Conventions. Protocol I expands protections for the civilian 

population in IACs and codifies many aspects of customary law that 

are fundamental to LOAC, particularly the concepts of distinction, 

m GC I recognizes emblems such as the Red Cross and Red Crescent as visible signs 

of the protected status of individuals performing humanitarian duties and therefore having a neutral status; Protocol III adds the Red Crystal. The emblems serve only as a visual 

cue to conflict participants. Protected status attaches to these individuals because of the 

nature of their duties and is not established on the basis of the emblem’s visibility.
Appendices

153

unnecessary suffering, and proportionality.30 Protocol II elaborates on 

Common Article 3 protections and applies them to internal conflicts.31,n

Objections

The Additional Protocols have not been universally adopted, and 

many states have criticized several of their provisions. The United States 

has not ratified either protocol because of historical objections dating 

back to the Reagan era. In particular, the Reagan administration felt 

that Protocol I endorsed terrorism by relaxing GC III’s standards for 

POW status. Under GC III, lawful combatants are to wear a distinctive 

sign and distinguish themselves from the civilian population. Article 44 

of Protocol I states that a combatant must “be given protections equivalent in all respects to those accorded prisoners of war” even if he or she 

fails to meet the distinction requirement.32 The United States has also 

felt that Protocol  I introduced subjective elements that could have a 

politicizing effect because it includes as IACs those conflicts “in which 

peoples are fighting against colonial domination and alien occupation 

and against racist regimes in the exercise of their right of self-determination.”33,o

 In his Letter of Transmittal of Protocol II to the Senate, 

President Reagan summarized these objections to Protocol I by stating:

One of its provisions, for example, would automatically 

treat as an international conflict any so-called “war of 

national liberation.” Whether such wars are international or non-international should turn exclusively 

on objective reality, not on one’s view of the moral 

qualities of each conflict. To rest on such subjective 

distinctions based on a war’s alleged purposes would 

politicize humanitarian law and eliminate the distinction between international and non-international conflicts. It would give special status to “wars of national 

liberation,” an ill-defined concept expressed in vague, 

subjective, politicized terminology. Another provision 

would grant combatant status to irregular forces even 

if they do not satisfy the traditional requirements to 

n Protocol II applies to specific noninternational (i.e., internal) armed conflicts such 

as civil wars that take place in the territory of a party between its armed forces and a resistance that, under responsible command, exercises enough control over territory in order 

to carry out sustained and concerted military operations and to implement Additional 

Protocol II. It does not apply to internal disturbances that do not meet that threshold of 

armed conflict, such as riots, isolated and sporadic acts of violence, and demonstrations. It 

only applies to conflicts between a state and a nonstate actor, but not to conflicts between 

such nonstate actors themselves, unlike NIACs within Common Article 3.

o This article is often referred to as the CARs provision (fighting against Colonial 

domination and Alien occupation and against Racist regimes).
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Legal Implications of the Status of Persons in Resistance

distinguish themselves from the civilian population 

and otherwise comply with the laws of war. This would 

endanger civilians among whom terrorists and other 

irregulars attempt to conceal themselves. These problems are so fundamental in character that they cannot be remedied through reservations, and I therefore 

have decided not to submit the Protocol to the Senate 

in any form.34,35

Objections to Protocol II by states were fewer. In fact, President Reagan recommended that the Senate ratify Protocol II in January 1987, 

but the Senate took no action. Its affiliation with Protocol I and the 

accompanying criticisms made ratification unfavorable. However, Protocols I and II bind nearly every coalition partner. The United States 

has stated that it considers many aspects of Protocol  I and much of 

Protocol II to be CIL and that US policy is to comply with the protocols 

whenever possible.36,37 In 1987, Michael J. Matheson, then deputy legal 

advisor at the Department of State, commented in his official capacity 

that many aspects of Protocol I are considered custom.38 More recently, 

President Obama urged the Senate to ratify Protocol II and has asserted 

US support for Article 75 of Protocol I (while maintaining objections to 

the CARs and POW provisions), which sets forth fundamental guarantees for persons in the hands of opposing forces in an IAC.p

Additional Protocol III

Additional Protocol III of 2005 added a four-sided, diamond-shaped 

red crystal as a neutrality emblem that can be used in lieu of the traditional Red Cross to indicate that the wearer is not a lawful target.40

Article 3 of the protocol allows a state to include within the center of 

the crystal an additional interior symbol, if desired.

p “Because of the vital importance of the rule of law to the effectiveness and legitimacy of our national security policy, the Administration is announcing our support for 

two important components of the international legal framework that covers armed conflicts: Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva 

Conventions.”39
Appendices

155

Incorporation of another symbol

within the white diamond is 

permitted in accordance with 

Article 3 of Additional Protocol III.

Figure A-1. Red Crescent neutrality symbol adopted in Additional Protocol III.

The United States has ratified Protocol  III, but the effect of the 

protocol is not clear. Some forces are foregoing the use of protective 

signs out of concern that individuals wearing these signs will actually 

be targeted. In Iraq and Afghanistan, US medics have not always worn 

such markings for this reason, and Israel directs its medics similarly.41

Summary Points

• The United States has ratified and is bound by the four treaties comprising the Geneva Conventions of 1949.

• The United States has not ratified Additional Protocols I or II, but 

it is US policy to comply with the protocols when possible, and the 

Obama administration seeks Senate ratification of Protocol  II and 

has asserted support for Article 75 of Protocol I.

• The United States has acknowledged that many provisions of Protocol I are custom, which means it considers itself bound by such provisions even in the absence of ratification. There is no comprehensive 

list of which provisions are deemed custom.

• The argument that all of Protocol I has attained CIL status continues 

to grow, in particular because almost every coalition partner is bound 

by it as a matter of treaty law, and the US practice has been to follow 

the protocol when engaged in warfare with states that have ratified it.

Common Articles

The term Common Articles refers to several articles in the 1949 Geneva 

Conventions that are identical across all four treaties. They generally 

relate to the scope of the provisions and the obligations of states under 

the treaties and are considered significant enough to appear in each 

Convention. Common Articles 1, 2, and 3 are identical in content and 

in their locations within these four treaties. Others are substantially 

alike but in different locations within each document, e.g., Articles 11, 
156

Legal Implications of the Status of Persons in Resistance

12, and 49. Common Article 2 and Common Article 3 are referred to 

frequently throughout LOAC and merit a more detailed discussion.

Common Article 2—International Armed Conflicts

Common Article 2 defines the armed conflicts to which the 1949 

Geneva Conventions apply. These include, according to Article 2, “all 

cases of declared war or of any other armed conflict which may arise 

between two or more of the High Contracting Parties, even if the state 

of war is not recognized by one of them.” They also include “all cases of 

partial or total occupation of the territory of a High Contracting Party, 

even if the said occupation meets with no armed resistance.” It creates 

a de facto standard for when the Conventions apply, where the intent 

of the parties is irrelevant, but where the nature of the hostilities drive 

the determination. Once there is an Article 2 conflict, all four of the 

Geneva Conventions apply, as well as Protocol I (for those states that 

have ratified it). Article 1(3) of Protocol I states that it “supplements the 

Geneva Conventions . . . [and] shall apply in the situations referred to 

in Article 2 common to those Conventions.”42

Recall that the United States has not ratified Protocol  I, largely 

because of Article 1(4), which expands the application of the Conventions to conflicts previously considered internal, “in which peoples are 

fighting against colonial domination and alien occupation and against 

racist regimes.”43 This article in particular has been criticized (by the 

United States and others) because terrorists could proclaim themselves 

part of a national liberation movement and, via Article 96 of Protocol I, 

unilaterally declare the application and protections of the Conventions 

and then purposely fail to comply with LOAC.q Despite these objections, when a Common Article 2 IAC exists, Protocol I must also be 

taken into account as a matter of policy, as it has been ratified by many 

allies to the United States.

Common Article 3—Noninternational Armed Conflicts

Common Article  3 requires that basic humanitarian norms be 

given to individuals outside of combat in noninternational, i.e., internal, armed conflicts. It reads:

In the case of armed conflict not of an international 

character occurring in the territory of one of the 

q “One of the more preposterous innovations of the Protocol is that, in accordance 

with Article 96(3), combined with Article 1(4), a group of terrorists proclaiming itself to 

be a national liberation movement fighting for the right to self-determination may make 

a unilateral declaration whereby it assumes all the rights and obligations of a Contracting Party, despite the fact that the terrorists themselves fail to observe the laws of armed 

conflict.”44
Appendices

157

High Contracting Parties, each Party to the conflict 

shall be bound to apply, as a minimum, the following 

provisions:

(1) Persons taking no active part in the hostilities, 

including members of armed forces who have laid 

down their arms and those placed ‘hors de combat’ by 

sickness, wounds, detention, or any other cause, shall 

in all circumstances be treated humanely, without any 

adverse distinction founded on race, colour, religion or 

faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain 

prohibited at any time and in any place whatsoever 

with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of 

all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular 

humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of 

executions without previous judgment pronounced by 

a regularly constituted court affording all the judicial 

guarantees which are recognized as indispensable by 

civilized peoples.

(2) The wounded and sick shall be collected and cared 

for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to 

bring into force, by means of special agreements, all or 

part of the other provisions of the present Convention.

The application of the preceding provisions shall not 

affect the legal status of the Parties to the conflict.

Despite the language limiting the article to internal conflicts, 

Common Article  3 articulates minimum standards that are considered applicable to both international and noninternational conflicts; 

the lesser is included within the greater.45 The International Court of 
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Legal Implications of the Status of Persons in Resistance

Justice articulated this view in the case of Nicaragua v. U.S., and the 

United States has adopted this as policy and expanded its application to 

nonconflict operations other than war through Department of Defense 

(DoD) Directive 2311.01E. The first portion of the article refers to a 

conflict “occurring in the territory of one of the High Contracting Parties.” Some have interpreted “territorial clause,” as it is known, to mean 

that Common Article 3 cannot apply to conflicts that are not restricted 

to a single state. However, the US Supreme Court in Hamdan v. Rumsfeld

determined that Common Article  3 should be given extraterritorial 

effect and that the armed conflict with Al Qaeda was at least governed 

by this article as a matter of US treaty obligation.46 The court came to 

this conclusion even though the government argued that the conflict 

was part of the “global war on terror” and that, because of this, it was 

neither a traditional IAC governed by the Geneva Conventions, nor an 

internal armed conflict where Common Article 3 would normally apply 

in NIACs.47

Regardless of this case law and the widely accepted position that 

Common Article  3 protections are considered the “minimum yardstick” of protections that apply in any conflict, an analysis of the application of Common Article  3 is still necessary to determine whether 

other portions of the Conventions apply.48 The application of Common 

Article 3 protections as policy—but not as a matter of law—is confusing 

to the point that some argue that the distinction between international 

and noninternational conflicts is no longer aligned with the movement 

of IHL toward applying more of the protections available in IACs to 

NIACs. Nonetheless, the distinction is still recognized, in case law and 

in practice.49

The application of Common Article  3 is difficult to determine 

because it does not by its terms define “noninternational conflict,” and 

it does not have a mechanism for enforcing its provisions. There is no 

supranational body designated to decide what constitutes a Common 

Article 3 conflict. Moreover, even if there were, there is no clear threshold for violence to distinguish between an internal armed conflict and 

what might “merely” amount to an internal security or crime suppression problem. The delegations present at the drafting of the Conventions expressed this concern and feared that the language was so vague 

that it could include “any form of anarchy, rebellion, or even plain banditry” and questioned whether, “if a handful of individuals were to rise 

in rebellion against the State and attack a police station, would that 

suffice to bring into being an armed conflict within the meaning of 

the Article?”50 In response to this concern, they came up with four nonbinding criteria to help determine when Article 3 applies:
Appendices

159

(1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate 

territory and having the means of respecting and 

ensuring respect for the Convention.

(2) That the legal Government is obliged to have 

recourse to the regular military forces against insurgents organized as military and in possession of a part 

of the national territory.

(3) (a) That the de jure Government has recognized 

the insurgents as belligerents; or

(b) that it has claimed for itself the rights of a belligerent; or

(c) that it has accorded the insurgents recognition as 

belligerents for the purposes only of the present Convention; or

(d) that the dispute has been admitted to the agenda 

of the Security Council or the General Assembly of 

the United Nations as being a threat to international 

peace, a breach of the peace, or an act of aggression.

(4) (a) That the insurgents have an organization purporting to have the characteristics of a State.

(b) That the insurgent civil authority exercises de facto 

authority over persons within a determinate territory.

(c) That the armed forces act under the direction 

of the organized civil authority and are prepared to 

observe the ordinary laws of war.

(d) That the insurgent civil authority agrees to be 

bound by the provisions of the Convention.51

The International Tribunal for the Former Yugoslavia presented 

a simplified analysis based on the intensity of the conflict and the 

organization of the parties. In Prosecutor v. Tadić, the court stated that 

an armed conflict “exists whenever there is a resort to armed force 

between States or protracted armed violence between governmental 

authorities and organized armed groups.”52 Nonetheless, recognition 

of this state of affairs is not necessarily obvious. The government in 

power may be reluctant to apply Common Article 3 protections out of 
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Legal Implications of the Status of Persons in Resistance

fear of conferring legitimacy to rebels, and insurgents may not have a 

platform for gaining international recognition to alert others to their 

cause.

Unlike in IACs, individuals fighting in Common Article 3 conflicts 

do not have combatant privileges, i.e., they do not receive POW status 

and can be punished for their acts by the sovereign state in which they 

are fighting. In this way, the lack of enforcement provisions in Common Article 3 could serve to undermine the purpose for which it exists. 

A government can still try to punish individuals as criminals under its 

domestic laws. The domestic laws could impose harsh or inhumane 

punishment or even death, which is paradoxical, given the intent of 

the Conventions.

Conflict Status

Under the Conventions, everyone involved in an armed conflict has 

a particular status, and individual status determines the level of protections that apply. So, to determine what aspects of the Conventions 

pertain to a situation involves two questions: (1) what type of conflict 

exists, if any (i.e., international or noninternational)? and (2) what status do the participants have?

The analysis as it pertains to the type of conflict can be summarized in the following way:

• If it is an IAC (i.e., a Common Article 2 conflict), all four Geneva 

Conventions apply, as well as Additional Protocol I if the state is 

a party.

• If it is a NIAC (i.e., an internal conflict), customary IHL and 

Common Article 3 apply, but no other part of the Conventions 

apply. Protocol  II may apply, if the rebels control sufficient 

territory “to enable them to carry out sustained and concerted 

military operations” under a responsible command.53
Appendices

161

Guide to Applicability of the Geneva Conventions (GCs) Protections

Armed 

conflict?

No

Yes

GCs do not apply

GCs apply but which provisions apply 

depends on nature of conflict

What type of 

conflict?

NIAC

IAC

Common Article 3 protections apply

Common Article 2 triggers the main 

portions of the GCs

If an IAC, 

what type of 

person?

Unprivileged 

belligerent

Privileged 

belligerent

Customary IHL of IACs and Common 

Article 3 apply

All GCs apply and customary IHL of 

IACs that might fill any gaps in the GCs

Figure A-2. Overview of application of the Geneva Conventions on the basis of 

type of conflict. Adapted from Richard M. Whitaker, ed., Operational Law Handbook (Charlottesville, VA: The Judge Advocate General’s School, United States 

Army, 1997), 13-2.r

It is possible to have a conflict that shifts between a Common Article  2 and Common Article  3. When the United States invaded Iraq 

in March  2003, it was a Common Article  2 conflict.s In May of that 

year, President Bush announced the end of combat operations, and 

US occupation began. The Conventions remained applicable because 

Common Article 2 applies in cases of total or partial occupation. When 

Iraq regained its sovereignty in June 2004 and control was passed to 

its interim government, arguably it became a Common Article 3 conflict between Iraq and insurgents, with the United States present to aid 

Iraq in its fight against the insurgents. Some scholars support this view, 

where an armed conflict is internal when a foreign state intervenes on 

behalf of a legitimate government to put down an insurgency.55 Others 

consider any hostilities with international repercussions to be international in nature for purposes of applying the Geneva Conventions.56

Where a Common Article 2 and Common Article 3 conflict take 

place simultaneously in the same state is argued by some to be a single 

hybrid or dual-status conflict, and by others to be two separate conflicts. 

An example is Afghanistan in 2001, when the Taliban government was 

involved in an internal armed conflict with the Northern Alliance, and 

the US-led coalition invaded. Afghanistan and the United States are 

r This chart is intended to provide a simplified assessment of the Conventions and 

how they apply in internal conflicts and IACs and is not a substitute for a more thorough 

analysis of their application in a given situation.

s Legal counsel to President Bush asserted that the armed conflict with Iraq began 

on March 19, 2003, when Bush ordered military forces to invade Iraq.54
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Legal Implications of the Status of Persons in Resistance

both High Contracting Parties to the Geneva Conventions, so the invasion initiated a Common Article 2 conflict. It is not necessary that the 

conflicts merge, so in this instance they were occurring separately but 

simultaneously.57

 Note that Afghanistan may initially present a relatively clear example of a dual-status conflict or two simultaneous conflicts, but there is 

no agreed-upon final determination of exactly what type of conflict 

exists between Al Qaeda in Afghanistan (and elsewhere) and the United 

States. In the Hamdan case, regarding the validity of the military commissions set up to try detainees, the trial court decided that the conflict 

in Afghanistan was an IAC;58 the Court of Appeals determined that it 

was international but outside of the scope of the Geneva Conventions;59

and the Supreme Court chose not to make a determination on the 

merits of that question but said that at least NIAC protections applied.60

INDIVIDUAL STATUS ON THE BATTLEFIELD

On the battlefield, there are two types of status: belligerent or civilian. Within belligerent status are those categories of individuals who 

are considered privileged, meaning they are entitled to take part in 

hostilities and are, therefore, afforded POW protections if captured. 

Civilians are a protected group unless and until they directly participate in hostilities, at which point they become belligerents and are 

subject to attack for such time as they directly participate in hostilities. 

Belligerents who are not entitled to fight, sometimes called unprivileged belligerents or unlawful combatants, are those individuals who 

are not recognized under LOAC as having POW protections.

Lawful Combatants/Prisoners of War

Lawful combatants include members of the armed forces of a party 

to a conflict and any other individuals taking a direct part in hostilities who satisfy the requirements of customary law and Article 4 of the 

Third Geneva Convention. Article 43(2) of Additional Protocol I states 

that in IACs, “members of the armed forces of a Party to a conflict 

(other than medical personnel and chaplains covered by Article 33 of 

the Third Convention) are combatants, that is to say, they have the 

right to participate directly in hostilities.”61,t In IACs, lawful combatants are entitled to POW status upon capture and must be treated in 

t See Chapter 5. Insurgency for a discussion on the criteria for “direct participation in 

hostilities.”
Appendices

163

accordance with GC III, which is devoted entirely to POWs.u They are 

protected by the “combatant’s privilege,” which allows them to kill and 

wound enemy combatants without penalty, assuming they commit no 

unlawful battlefield act.v Lawful combatant status indicates that an individual is entitled to fight, whether or not he/she is engaged in combat 

at that moment. By extension, these individuals may also be attacked at 

any time, not only when threatening the enemy.63 Combatants remain 

lawful targets of the enemy even if targeted behind the front lines.w

The concept of lawful versus unlawful combatant is discussed in 

more detail in Chapter 6. Belligerency. However, international law and US 

domestic law recognized the distinction even before the end of World 

War II and the drafting of the 1949 Conventions. In Ex parte Quirin, the 

US Supreme Court upheld the jurisdiction of a US military tribunal 

established to try German saboteurs. In that case, the court stated:

Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. 

Unlawful combatants are likewise subject to capture 

and detention, but in addition they are subject to trial 

and punishment by military tribunals for acts which 

render their belligerency unlawful. The spy who 

secretly and without uniform passes the military lines 

of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, 

or an enemy combatant who without uniform comes 

secretly through the lines for the purpose of waging 

war by destruction of life or property, are familiar 

examples of belligerents who are generally deemed 

not to be entitled to the status of prisoners of war, but 

to be offenders against the law of war subject to trial 

and punishment by military tribunals.65

There is no requirement that captured unlawful combatants be 

denied POW status. However, the US position has been to generously 

apply POW status to irregular forces and others considered unlawful 

combatants.66 In some instances, this approach may mean treating 

individuals as if they were POWs in lieu of actually according them 

such status as a matter of law. This distinction is important because the 

u Recall that POW status occurs only in Common Article 2 IACs.

v This is a centuries-old concept, codified in Article 57 of Lieber’s Code, which states 

that upon taking the soldier’s oath an individual “is a belligerent; his killing, wounding, or 

other warlike acts are not individual crimes or offenses.”62

w The idea that there is no restriction on the use of force against a lawful opposing 

combatant has been challenged by some who interpret IHL as restricting the circumstances in which combatants may be targeted.64
164

Legal Implications of the Status of Persons in Resistance

capturing party would not be obligated to comply with all GC III provisions for POWs for such individuals. However, the United States has not 

agreed to treat all captured Taliban or Al Qaeda fighters as POWs and 

has questioned the extent to which any Geneva Convention protections 

apply to such individuals (see Chapter 6. Belligerency).

Example: Outside of Combat or Lawful Combatant? Saddam Hussein 

was afforded POW status. Did his capture occur during an Article 2 conflict, and when he was captured, was he a combatant? The United States 

was no longer in an armed conflict phase but was occupying Iraq. However, Common Article  2 states that the Conventions continue to apply 

during “partial or total occupation.” Saddam had commanded the army 

and often wore a uniform and openly carried arms. Despite being captured in civilian clothes outside of direct combat, he had not surrendered 

and had not abandoned his role as commander of the Iraqi army. Therefore, he was therefore considered a lawful combatant (and a lawful target) and was afforded POW status.

Combatants may relinquish their status by withdrawing from hostilities and becoming civilians, by becoming outside of combat (hors de 

combat) through surrender, or in the circumstance of getting wounded, 

sick, or shipwrecked. Combatants who fall into the hands of an enemy 

while hors de combat are generally entitled to POW privileges.x

Retainees

Article 28 of GC I refers to “retained personnel,” that is, individuals 

who are entitled to receive the same treatment as POWs upon capture 

x “The visit was arranged after the Pentagon formally declared Saddam a POW last 

month because of his status as commander in chief of Iraq’s military. As a POW, Saddam 

is entitled under the Geneva Conventions to certain rights, including visits by the international Red Cross and freedom from coercion of any kind during interrogations.”67
Appendices

165

but who are not combatants.y The category of retainees includes chaplains and medical personnel. While part of the armed forces, they are 

the only members who are considered noncombatants under LOAC. 

This status is unique because chaplains and medical personnel are subject to capture (unlike a civilian), but they are not POWs and their presence on the battlefield does not require the enemy to alter its military 

objective (i.e., take special measures to ensure that the attack minimizes casualties if civilians are present).

Medical personnel and chaplains cannot be compelled to do work 

outside of their medical or pastoral duties.69 Retainees include members 

of the armed forces who temporarily perform medical functions such 

as “hospital orderlies, nurses, or auxiliary stretcher-bearers” when such 

individuals are trained exclusively for these roles and encounter the 

opposing forces while performing these functions.70,71 That personnel 

in a medical unit maintain arms, or that weapons are present in a medical facility, does not waive this protection.72 However, they may use those 

any such weapons only in self-defense or in defense of the wounded and 

sick.z In general, chaplains are not permitted to carry weapons.

If there is no longer a need for retainees to carry out their medical and spiritual duties for POWs also under the control of the adverse 

party, they must be repatriated, or returned to their own armed forces.74

Retainees who directly participate in hostilities by taking up arms for 

purposes other than self-defense lose their protections and become 

lawful targets. If they are captured by an enemy who honors LOAC, 

they will be treated as POWs and consequently can be tried for precapture acts.75

y The Geneva Convention for the Amelioration of the Condition of the Wounded and 

Sick in Armed Forces in the Field states in Article 28: “personnel designated in Articles 24 

and 26 who fall into the hands of the adverse Party, shall be retained only in so far as the 

state of health, the spiritual needs and the number of prisoners of war require.” Article 24 

states that “medical personnel exclusively engaged in the search for, or the collection, 

transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all circumstances.” 

Article 26 states “the staff of National Red Cross Societies and that of other Voluntary Aid 

Societies, duly recognized and authorized by their Governments, who may be employed on 

the same duties as the personnel named in Article 24, are placed on the same footing as 

the personnel named in the said Article, provided that the staff of such societies are subject to military laws and regulations.”68

z Article 19 reads: “Fixed establishments and mobile medical units of the Medical Service may in no circumstances be attacked, but shall at all times be respected and protected 

by the Parties to the conflict. Should they fall into the hands of the adverse Party, their 

personnel shall be free to pursue their duties, as long as the capturing Power has not itself 

ensured the necessary care of the wounded and sick found in such establishments and 

units.” These protections are intact even if the medical personnel are armed, as long as 

they use “arms in their own defence, or in that of the wounded and sick in their charge.”73
166

Legal Implications of the Status of Persons in Resistance

Members of Other Militias and Volunteer Corps

GC  III, Article  4(A) affords POW status to “members of other 

militias and members of other volunteer corps, including those of 

organized resistance movements.” This article addresses the issue of 

partisans, guerillas, and rebels. To achieve POW status, the members 

of these groups must meet the following criteria:76

1. Be commanded by a person responsible for his subordinates

2. Have a fixed distinctive sign recognizable at a distance

3. Carry arms openly

4. Conduct their operations in accordance with the laws and 

customs of war

The first requirement exists to exclude from the definition individuals acting on their own. The second condition is required to distinguish the partisan from the civilian population. The identifying sign 

need not be a uniform but can be an emblem or some type of distinctive 

sign that must be used by all members of the group. The third requirement of carrying arms openly means that arms must not be concealed 

when parties are visible to the adversary or before launching an attack. 

That is, the individual must “abstain from creating the false impression 

that he is a civilian . . . and carry his arms openly in a reasonable way.”77

The last condition exists so that combatants cannot rely on LOAC only 

to benefit from its protections. Conduct in accordance with LOAC is a 

key distinction between lawful and unlawful combatants.

Persons Accompanying But Not Members of the Armed Forces

GC III, Article 4(A)(4), provides that “persons who accompany the 

armed forces without actually being members thereof, such as civilian 

members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare 

of the armed forces, provided that they have received authorization, 

from the armed forces which they accompany, who shall provide them 

for that purpose with an identity card similar to the annexed model” 

are entitled to POW status upon capture. The key element for this classification of status is the authorization of the individual by the armed 

forces that they accompany. An example would be technical representatives on location to maintain or service aircraft or flight helicopters. 

If a civilian technician from Boeing were to be captured by insurgents, 

he or she would be entitled to be treated as a POW.
Appendices

167

Levée en Masse

The only time that civilians are permitted to take up arms and not 

meet all the requirements of lawful combatancy that would otherwise 

be required for POW status is the case of levée en masse. GC III Article 4(A)(6) states that POW status is afforded to “inhabitants of a nonoccupied territory, who on the approach of the enemy spontaneously 

take up arms to resist the invading forces, without having had time to 

form themselves into regular armed units, provided they carry arms 

openly and respect the laws and customs of war.”78 The conditions of 

a levée en masse are those of an emergency where there is no time to 

organize under a commander or wear a distinctive sign. Because the 

character of a levée en masse is one of last resort to protect a territory 

not yet occupied by foreign forces, once the attempted occupation has 

passed, members must be incorporated into the regular armed forces. 

This is the temporal component, according to which a levée en masse can 

exist only during the actual approach of the enemy within the context 

of a Common Article 2 conflict. It cannot extend beyond the invasion 

because either the enemy will be resisted or the situation will stabilize and there will be opportunity for the formal organization of such 

persons into the armed forces or another category under Article 4 of 

GC III.

Civilians

Civilians are noncombatants. The simplicity of this statement belies 

its significance and the complexity of the analysis surrounding that 

determination. Nonetheless, in simplest terms, civilians are not members of the armed forces.aa Civilians are afforded protections during 

any type of armed conflict, particularly protections from direct attack, 

meaning they can never be made the object of attack. This notion is 

embodied in Protocol  I, Article  51, and reinforced in international 

case law.ab

aa LOAC does not provide a definition of “civilian.” However, Additional Protocol I 

provides a negative definition in Article 50: “A civilian is any person who does not belong 

to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the 

Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is 

a civilian, that person shall be considered to be a civilian.” See Chapter 5. Insurgency for a 

discussion of the definition of civilian and the circumstances in which civilians forfeit protections through direct participation in hostilities.

ab “The protection of civilians in time of armed conflict, whether international or 

internal, is the bedrock of modern humanitarian law . . . . it is a universally recognized 

principle . . . that deliberate attacks on civilians or civilian objects are absolutely prohibited by international humanitarian law.”79
168

Legal Implications of the Status of Persons in Resistance

Relative to civilians, two LOAC concepts are important: distinction and proportionality. Distinction requires that fighters distinguish 

between belligerents and civilians and between military targets and 

civilian objects. However, the incidental death of civilians is permitted when the attack is aimed at a legitimate military target, and the 

concept of proportionality dictates that the loss of civilian life cannot 

be excessive in relation to the concrete and direct military advantage 

gained. So, civilian casualties are not necessarily unlawful, but they 

must not be excessive in relation to the concrete and direct military 

advantage expected.

Civilians forfeit their protection if they take a direct part in hostilities and for such time as they do so. Whether an individual on or 

near the battlefield is a civilian is a difficult determination, particularly 

given that it is commonplace for the enemy to dress as a civilian or 

compel civilians to carry out hostile acts in current armed conflicts. 

There are several elements within LOAC and international law more 

generally that are necessary parts of this analysis. For a discussion of 

direct participation in hostilities and its impact on civilian status, see 

Chapter 5. Insurgency.

Other Protected Persons

This individual status applies only in Common Article 2 conflicts 

and applies GC IV protections to individuals who “find themselves, in 

the case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”80 In essence, 

they are noncombatants that find themselves in the hands of the enemy. 

For these individuals, GC IV provides greater protections than would 

otherwise be provided by Common Article 3 (which are nonetheless 

considerable).

DIRECT PARTICIPATION IN HOSTILITIES

Significance on Status

Under IHL, the civilian population and individual civilians enjoy a 

general protection from the effects of hostilities. Today, IACs frequently 

involve at least one organized nonstate armed group in which portions 

of the civilian population have been converted into members of the 

fighting forces. Additional Protocol I addresses the issue of increased 

civilian participation in hostilities with Article 51, which protects civilians “against dangers arising from military operations,” including 

direct attacks and “acts or threats of violence the primary purpose of 
Appendices

169

which is to spread terror.81 This is “unless and for such time as they take 

a direct part in hostilities.”82, ac Neither the protocols nor the Conventions 

define direct participation in hostilities. However, whether a civilian is 

directly participating in hostilities is a critical determination, because 

doing so suspends his or her immunity, thus allowing him or her to be 

made the object of attack.

The concept of direct participation applies only to civilians, but it 

is relevant whether the armed conflict is international or noninternational in nature. In an IAC, a civilian is defined as any person who is 

not a member of the armed forces of a party to the conflict and who is 

not a participant in a levée en masse.

ad If there is doubt regarding whether 

an individual is a civilian, he or she is to be considered a civilian and 

the “presence within the civilian population of individuals who do not 

come within the definition of civilians does not deprive the population of its civilian character.”83 In an internal armed conflict, a civilian 

is someone who is not associated with the military or an organized 

armed group, and who is not directly participating in the hostilities. 

The terminology used in the Geneva Conventions and the protocols 

suggests that an individual is either a member of the armed forces, a 

participant in a levée en masse, or a civilian. By this reading, a civilian is 

always negatively defined as someone not falling into another category.ae The determination of whether organized armed groups (who are 

not considered regular armed forces) are civilians engaged in continuous direct participation has not been settled by state practice or international jurisprudence, but they are generally considered armed forces 

of a nonstate actor that is party to a noninternational armed conflict 

and consist of individuals “whose continuous function is to take a direct 

part in hostilities.”85, af

The meaning and limit of Article 51 is part of an ongoing debate 

between academics, practitioners, and operators. Previous commentaries to the Geneva Conventions and the protocols provided some guidance on the definition of direct participation in hostilities, but a more 

comprehensive report, issued in 2009 by the International Committee 

ac Emphasis added.

ad Article 50 of Protocol I refers to Article 4(A) of GC III: “A civilian is any person 

who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), 

(3) and (6) of the Third Convention and in Article 43 of this Protocol.”

ae “As the wording and logic of Article 3 GC I-IV and Additional Protocol II (AP II) 

reveals, civilians, armed forces, and organized armed groups of the parties to the conflict 

are mutually exclusive categories also in non-international armed conflict.”84

af The analysis of membership in organized armed groups and the threshold for continuous combat function should be developed through scenarios, particularly analysis of 

Taliban and Al Qaeda membership.
170

Legal Implications of the Status of Persons in Resistance

of the Red Cross (ICRC), reflects a multiyear study by a panel of experts 

concerning the terminology as used in international law.86, ag US experts 

participated on that panel, but they withdrew their names from the 

final product in protest over the process by which the head ICRC legal 

advisor reached the conclusions contained in the study.88, ah The ICRC 

recommendations have been implemented by some allies, and the elements for direct participation in hostilities are discussed an analyzed 

below. The Army judge advocate general’s most recent Law of Armed 

Conflict Deskbook articulates the current US position:

To date, the United States has not adopted the complex 

ICRC position, nor its vocabulary. Instead, the United 

States relies on a case-by-case approach to both organized armed groups and individuals. U.S. forces use a 

functional [direct participation in hostilities] analysis 

based on the notions of hostile act and hostile intent 

as defined in the Standing Rules of Engagement,ai and 

the criticality of an individual’s contribution to enemy 

war efforts. . . . Those designated as hostile become 

status-based targets, subject to attack or capture at 

any time if operating on active battlefields or in areas 

where authorities consent or are unwilling or unable 

to capture or control them.93

Some elements of the US position on direct participation in hostilities are the same as the ICRC analysis—for example, that general 

participation in the war effort, such as employment in factories or 

expressing support for the adversary’s government, does not constitute 

direct participation in hostilities. There is also no debate over obvious 

instances of direct participation in hostilities that justify a response of 

ag Previous commentary that provided guidance includes that by Sandoz, Swinarski, 

and Zimmerman.87

ah The editors of the Law of Armed Conflict Deskbook note that the United States has not 

issued official guidance, but several experts have published independent responses to the 

ICRC’s guidance. For example, Michael N. Schmitt,89 W. Hays Parks (Mr. Parks, a retired 

Marine colonel, was one of the two US experts assigned to the study),90 and Kenneth 

Watkin.91

ai The Standing Rules of Engagement define “hostile act” as “an attack or other use 

of force against the United States, US forces, and, in certain circumstances, US nationals, 

their property, US commercial assets, and/or other designated non-US forces, foreign 

nationals and their property. It is also force used directly to preclude or impede the mission and/or duties of US forces, including the recovery of US personnel and vital US 

Government property.” It defines “hostile intent” as “the threat of imminent use of force 

against the United States, US forces, and in certain circumstances, US nationals, their 

property, US commercial assets, and/or other designated non-US forces, foreign nationals and their property. Also, the threat of force to preclude or impede the mission and/or 

duties of US forces, including the recovery of US personnel or vital USG property.”92
Appendices

171

deadly force, such as openly carrying and firing arms at soldiers (if not 

part of a levée en masse). However, the United States has been faced with 

armed groups that purposely and illegally use the civilian population 

to conduct attacks. The United States also relies heavily on civilian and 

contractor support for battlefield or targeting roles. These scenarios 

and others present difficult situations in which attacks that are more 

remote in location and attenuated in time are harder to analyze for 

determining direct participation in hostilities. Some of these issues are 

discussed in more detail in The Impact of International Humanitarian Law 

on the Status of Persons in Insurgency (Chapter 5).

International Committee of the Red Cross Criteria for 

Determining Direct Participation

The analysis for determining direct participation in hostilities can 

be broken down into two elements: what is meant by “hostilities” and 

what is meant by “direct participation.” The first element refers to 

collective activities that constitute the means of injuring the enemy, 

and the second element refers to the individual involvement of a person. In the course of armed conflict, not all conduct constitutes hostilities. Likewise, not all actions of an individual have the quality or 

degree of involvement that is required to meet the threshold for direct 

participation.

The ICRC report identifies three cumulative elements for a specific 

civilian act to constitute direct participation in hostilities:

“1. The act must be likely to adversely affect the military 

operations or military capacity of a party to an armed conflict 

or, alternatively, to inflict death, injury, or destruction on 

persons or objects protected against direct attack (threshold 

of harm);

2. There must be a direct causal link between the act and 

the harm likely to result either from that act or from a 

coordinated military operation of which that act constitutes 

an integral part (direct causation); and

3. The 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 another (belligerent 

nexus).”94

For element 1, threshold of harm, only an objective likelihood 

that the harm will occur is required. It need not actually materialize. 

Military harm can be any consequence affecting military operations, 

such as “sabotage and other armed or unarmed activities restricting 
172

Legal Implications of the Status of Persons in Resistance

or disturbing deployments,” clearing mines placed by the enemy, and 

wiretapping the adversary’s high command.95 Harm here is not limited 

to killing or wounding personnel or causing physical damage to military objects. The second clause of element 1 allows violent or deadly 

acts against nonmilitary targets to constitute direct participation in 

hostilities. These include attacks against civilians, such as sniper attacks 

or the bombardment of residential areas.96

For element 2, direct causation, the acts can go beyond the actual 

conduct of armed hostilities and include acts that contribute in a direct 

way to the defeat of an adversary. An example of this type of activity 

would be a civilian driving a military ammunition truck to operationally engaged fighters.97, aj However, the use of the term direct implies 

there can be “indirect” participation. Indeed, acts that may “even be 

indispensable to the adversary, such as providing finances, food and 

shelter . . . and producing weapons and ammunition” are considered 

conflict-sustaining activities that are not designed to directly bring 

about the materialization of the required harm.98 The distinction 

between producing the ammunition and driving the ammunition to 

operationally engaged fighters is ostensibly that delivering weapons to 

those engaged in combat “is carried out as an integral part of a specific 

military operation designed to directly cause the required threshold of 

harm.”99 Simply producing ammunition does not meet the causal link 

requirement because it only maintains or increases the capacity of a 

party to harm an adversary.

The act need not be indispensable to the causation of harm. Producing weapons may be indispensable to the conflict, but their production is not considered directly causal to the harm. An opposing 

example may be the person serving as a lookout on an ambush. The 

contribution may not be indispensable to the causation of the harm 

once the ambush occurs, but he would almost certainly be considered 

to be directly participating in hostilities.100 Causal proximity is different 

than temporal or geographic proximity. If weapons systems are used 

that employ a delay mechanism or are geographically remote from the 

battlefield, the causal relationship between the use of the systems and 

the resulting harm remains direct regardless of the temporal or geographic proximity.

At the same time, temporal or geographic proximity can indicate 

that an act constitutes direct participation in hostilities, but this alone 

is not a sufficient indicator. For example, recall the example of a truck 

carrying ammunition to engaged fighters. Some experts contend that 

the proximity of that truck to the front lines (geographic) is relevant 

aj This scenario is cited as a “frequent classroom example.”
Appendices

173

to the determination, whereas if it were thousands of miles behind the 

front lines, it would lack the requisite causal link.101 This reasoning was 

used in the case of U.S. v. Salim Ahmed Hamdan, in which a military 

commission found that Hamdan was directly participating in activities 

“by driving a vehicle containing two surface-to-air missiles in both temporal and spatial proximity to . . . ongoing combat operations.”102 The 

US and coalition forces had the only air assets against which the missiles might be used, and the Battle of Kandahar was already underway 

and only a short distance from where the car was stopped. These facts 

supported the argument that he was directly participating in hostilities 

against the United States. The Israeli High Court of Justice reached a 

similar conclusion in 2006, when it stated the following: “if the civilian 

is driving the ammunition to the place from which it will be used for 

the purposes of hostilities, he should be seen as taking a direct part in 

the hostilities.”103

Note on Direct Participation in Hostilities and Military Targets. In the 

example of the ammunition truck, the truck is always a legitimate military objective. If as a result of its location or transporting activities (e.g., 

it is transporting ammunition from a factory to a port for shipping), the 

truck is not considered a legitimate military objective, the civilian driver 

would be protected against direct attack. However, an attack at any time 

against the truck as a military target would be permissible, but the analysis would have to consider the likely death of the civilian driver in the 

proportionality assessment.

The third element, belligerent nexus, refers to the objective purpose of the act carried out by the civilian. The focus is not on the subjective intent of the individual but is “expressed in the design of the 

act or operation.”104 As there is no focus on the mental capacity or willingness of the individual, even civilians forced to directly participate 

in hostilities or children below the recruitment age could be deemed 

combatants. Only in circumstances in which civilians are completely 

unaware of their roles or completely deprived of their physical freedom 

of action will they remain protected. Examples include an individual 

who is forced to act as a human shield or a driver who unknowingly 

transports a remote-controlled bomb.105

The belligerent nexus element does not include activities that may 

cause harm but that have nothing to do with the armed conflict, such 

as an exchange of gunfire between police and a bank robber. The acts 

must be designed to support a party to the conflict by harming another 

party. Also excluded from the concept are any harm caused by individual self-defense or defense of others; the exercise of power or authority 
174

Legal Implications of the Status of Persons in Resistance

over individuals or territory—for example, the lawful exercise of judicial or disciplinary authority (which could include punishment or ill 

treatment, but which would be violations of IHL separate from the conduct of hostilities); acts of civil unrest against such authority; and intercivilian violence that does not support a party to the conflict.106

UNLAWFUL COMBATANTS

The term unlawful combatant does not appear in the Conventions or 

protocols but has been frequently used by the United States as an individual status. The main characteristic of an unlawful combatant is that 

he or she is not entitled to POW status upon capture. The status is not 

universally recognized, and some argue that it is a subcategory of civilian, where the civilian takes up arms without being authorized under 

LOAC.ak The United States provides a definition in domestic legislation according to which an “unprivileged belligerent”al is one who “has 

engaged in hostilities against the United States or its coalition partners; 

has purposefully and materially supported hostilities against the United 

States or its coalition partners; or was a part of Al Qaeda at the time of 

the alleged offense” and does not qualify as a lawful combatant.108

Unlawful combatants can be targeted by the enemy, but they cannot 

claim POW status if captured. The use of this status has been criticized. 

One scholar notes that unlawful combatants “are subject to the burdens of combatancy (they can be killed), but they have no reciprocal 

rights. . . . The phrase unlawful combatant as used today combines the 

aspect of unlawful from the law of crime and the concept of combatant 

from the law of war. For those thus labeled, it is the worst of all possible 

worlds.”109 Unlawful combatants do not acknowledge the requirement 

to distinguish themselves from civilians, which could constitute an act 

of perfidy. Perfidy is prohibited in both IACs and NIACs and generally 

refers to any acts used to gain an enemy’s confidence while intending 

to injure, kill, or capture him.110 The act of feigning civilian status is 

one example.am Members of the Viet Cong were considered unlawful 

combatants because they fought at night and purported to be civilian 

ak “The distinction between lawful and unlawful combatants is a corollary of the cardinal distinction between combatants and civilians.”107

al The 2006 version of the Military Commissions Act used the term unlawful combatant, but it was replaced with unprivileged belligerent in the 2009 amendments.

am The requirement to distinguish oneself from civilians is applied consistently to 

lawful combatants. If an otherwise lawful combatant engages in hostilities without a uniform or distinctive sign, he or she becomes an unlawful combatant and is not entitled to 

POW status upon capture. This underscores the point that at all times combatants must be 

distinguishable from civilians.111
Appendices

175

farmers by day. Combatants cannot wear two hats, and if they do, they 

lose the protections that they would be afforded under either. They are 

not civilians and not lawful combatants. However, LOAC still applies to 

unlawful combatants in that they are entitled to the basic humanitarian protections of Common Article 3 upon capture.an

Enemy Combatants and Unlawful Enemy Combatants

Like the term unlawful combatant, the terms enemy combatant and 

unlawful enemy combatant112 are not defined in international treaties, and 

there is no agreed-upon definition of these terms. However the United 

States has used the terms at different points since the terrorist attacks 

of September 11, 2001, and the general understanding is that they are 

variations of unlawful combatant status. In traditional usage, the term 

enemy combatant simply means a fighter who is entitled to POW status, 

but the United States has used the term to refer to unlawful belligerents.

DoD Directive 2310.01E defines an enemy combatant as “a person 

engaged in hostilities against the United States or its coalition partners during an armed conflict. The term ‘enemy combatant’ includes 

both ‘lawful enemy combatants’ and ‘unlawful enemy combatants.’ ”113

This definition eventually changed, in part due to the Supreme Court’s 

ruling in Hamdi v. Rumsfeld,

114 which required that the individual be 

engaged in armed conflict, and that a Combatant Status Review Tribunal (CSRT) be held to determine an individual’s status as an enemy 

combatant. The DoD order established CSRTs to consider “an individual who was part of or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hostilities against the United States 

or its coalition partners.” In 2009, the Obama administration ceased 

using the term enemy combatant and refers instead to such individuals 

as detainees.

115

Detainees

According to the US military, a detainee is “any person captured 

or otherwise detained by an armed force.”116 However, DoD Directive 

2310.01E provides a slightly different definition, where a detainee is 

“any person captured, detained, held, or otherwise under the control 

of DoD personnel (military, civilian, or contractor employee). It does 

not include persons being held primarily for law enforcement purposes 

an This position is consistent with DoD Directive 2310.01E, which states that detainees, regardless of their legal statuses, should be treated in accordance with the minimum 

standards articulated in Common Article 3.
176

Legal Implications of the Status of Persons in Resistance

except where the United States is the occupying power.”117 It goes on 

to state that a detainee may be, inter alia, an enemy combatant, lawful 

enemy combatant, enemy POW, retained person, or civilian internee. 

According to this definition, any captive would be a detainee. However, 

this term has not attained international usage.

ENDNOTES

1 Field Manual No. 27-10 (FM 27-10), The Law of Land Warfare (with changes) (Washington, 

DC: Headquarters, Department of the Army, 1956), ¶ 4.

2 U.S. Const. art. VI, cl. 2.

3 The Paquete Habana, 175 U.S. 677 (1900). Compare with Roper v. Simmons, 543 U.S. 

551, 622-629 (2005) (Scalia, J. dissenting). Oona Hathaway, Sabria McElroy, and Sara 

A. Solow, “International Law at Home: Enforcing Treaties in U.S. Courts,” Yale Journal of 

International Law 37 (2012): 51–106.

4 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in 

Armed Forces in the Field art. 49, August 12, 1949, 6 U.S.T. 3116, 75 U.N.T.S. 31 [hereinafter GC I].

5 18 U.S.C. § 2441 (2006) (amended 2006).

6 18 U.S.C. §§ 3261-7 (2006).

7 Medellin v. Texas, 552 U.S. 491, 507 (2008).

8 Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (New York: 

Cambridge University Press, 2012), 20.

9 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, ed. Jean Pictet (Geneva: International Committee of the Red 

Cross, 1960), 23.

10 Richard P. DiMeglio, Sean M. Condron, Owen B. Bishop, Gregory S. Musselman, Todd 

L. Lindquist, Andrew D. Gillman, William J. Johnson, and Daniel E. Stigall, Law of Armed 

Conflict Deskbook (Charlottesville, VA: United States Army Judge Advocate General’s 

Legal Center and School, 2012), 16, 27–28.

11 Derek Grimes, Thomas Hamilton, Eric Jensen, William O’Brien, Keith Puls, Randolph 

Swansiger, and Daria Wollschlaeger, Law of War Handbook, ed. Keith E. Puls (Charlottesville, VA: United States Army Judge Advocate General’s Legal Center and School, 2005), 

30.

12 International Committee of the Red Cross, “International Humanitarian Law and the 

Challenges of Contemporary Armed Conflicts,” International Review of the Red Cross 89, 

no. 867 (2007): 726.

13 Andrew Gillman and William Johnson, eds., Operational Law Handbook (Charlottesville, 

VA: United States Army Judge Advocate General’s Legal Center and School, 2012), 46.

14 Ibid.

15 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 

Advisory Opinion, 2004, I.C.J. 136, ¶ 106 (July 9, 2004).

16 U.S. Department of State. “Fourth Periodic Report of the United States of America to the 

United Nations Committee on Human Rights Concerning the International Covenant 

on Civil and Political Rights,” ¶ 507, December 30, 2011, http://www.state.gov/g/drl/

rls/179781.htm.

17 US Department of Defense, DoD Law of War Program: DoD Directive 2311.01E, February 22, 

2011, ¶ 4.1. 
Appendices

177

18 DiMeglio et al., Law of Armed Conflict Deskbook, 135–151.

19 Convention (IV) Respecting the Laws and Customs of War on Land, and its Annex: 

Regulations Concerning the Laws and Customs of War on Land art. 23, October 18, 

1907, 36 Stat. 2277, 205 Consol. T.S. 277.

20 Solis, The Law of Armed Conflict: International Humanitarian Law in War, chap. 3

21 GC I.

22 Convention (II) for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked members of the Armed Forces at Sea, August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 

85 [hereinafter GC II].

23 Convention (III) Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 

3316, 75 U.N.T.S. 135 [hereinafter GC III].

24 Convention (IV) Relative to the Protection of Civilian Persons in Time of War, August 12, 

1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV].

25 International Committee of the Red Cross, Commentary, Convention Relative to the Protection of Civilians in Time of War, ed. Jean Pictet (Geneva: International Committee of the 

Red Cross, 1958), 26.

26 Ibid., 34.

27 GC I, art. 2.

28 Protocol Additional to the Geneva Conventions of 1949, and relating to the Protections of Victims of International Armed Conflicts (Protocol I), December 12, 1977, 1125 

U.N.T.S. 609 [hereinafter Protocol I].

29 Protocol Additional to the Geneva Conventions of 1949, and relating to the Protections 

of Victims of Non-International Armed Conflicts (Protocol II) arts. 4, 13, 14, December 12, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].

30 Protocol I, art. 35(2), 48, 51(5), 57.

31 Solis, The Law of Armed Conflict: International humanitarian Law in War, chap. 5.1.3.

32 Protocol I, art. 44(4).

33 Protocol I, art. 1(4).

34 Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949 

Geneva Conventions, and Relating to the Protections of Victims of Non-International 

Armed Conflicts, S. Treaty Doc. No. 100-2., 100th Cong., 1st Sess., at 111 (1987), available at http://www.loc.gov/rr/frd/Military_Law/pdf/protocol-II-100-2.pdf, reprinted in 

American Journal of International Law 81, no. 4 (1987): 911.

35 George H. Aldrich, “Prospects for United States Ratification of Additional Protocol I 

to the 1949 Geneva Conventions,” American Journal of International Law 85, no. 1 (1991): 

1–20.

36 Grimes et al., Law of War Handbook, 29–30.

37 DiMeglio et al., Law of Armed Conflict Deskbook, 21–22.

38 Michael J. Matheson, “Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions,” American University Journal of International Law & Policy 2 (1987): 423–429.

39 White House Office of the Press Secretary, “Fact Sheet: New Actions for Guantanamo 

Detainee Policy,” March 7, 2011, http://www.whitehouse.gov/the-press-office/2011/03/07/

fact-sheet-new-actions-guant-namo-and-detainee-policy.

40 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to 

the Adoption of an Additional Distinctive Emblem (Protocol III), December 8, 2005, 

45 I.L.M. 558 (2006) (entered into force for United States September 8, 2007).

41 Solis, The Law of Armed Conflict: International Humanitarian Law in War, 139.

42 Protocol I, art. 1(3).

43 Protocol I, art. 1(4).
178

Legal Implications of the Status of Persons in Resistance

44 Yoram Dinstein, “Comments on Protocol I,” International Review of the Red Cross 37, no. 

320 (1997): 469–470, http://www.icrc.org/eng/resources/documents/misc/57jnv5.htm.

45 Military and Paramilitary Activities in and Against Nicaragua (Nica. v. U.S.), Merits, 

Judgment, 1986 I.C.J. 14, ¶ 219 (June 27).

46 Hamdan v. Rumsfeld, 548 U.S. 557, 630-31 (2006).

47 Ibid., 629.

48 Military and Paramilitary Activities in and Against Nicaragua, ¶ 219.

49 Solis, The Law of Armed Conflict: International Humanitarian Law in War, 169.

50 International Committee of the Red Cross, Commentary, Convention Relative to the Treatment of Prisoners of War, 35.

51 Ibid., 36.

52 Prosecutor v. Tadić, Case No. IT–94–1-T, Opinion and Judgment, ¶  561 (Int’l Crim. 

Trib. for the Former Yugoslavia May 7, 1997) (quoting Prosecutor v. Tadić, Case No. IT94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 

¶ 70 (Int’l Crim. Trib. for the Former Yugoslavia October 2, 1995)).

53 Protocol II, art. 1(1).

54 “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention, 

Op. Off. Legal Counsel (March 18, 2004) available at http://www.justice.gov/olc/2004/

gc4mar18.pdf.

55 Jennifer Elsea, Treatment of “Battlefield Detainees” in the War on Terrorism, Report for Congress, RL31367 (Washington, DC: Congressional Research Service, November 2005), 

13 (citing John Embry Parkerson, Jr., “United States Compliance with Humanitarian 

Law Respecting Civilians During Operation Just Cause,” Military Law Review 133 (1991): 

41–42).

56 Elsea, Treatment of “Battlefield Detainees” in the War on Terrorism, 14–15.

57 Solis, The Law of Armed Conflict: International Humanitarian Law in War, 156.

58 Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 160-61 (D.D.C. 2004).

59 Hamdan v. Rumsfeld, 415 F. 3d 33, 40-42 (D.C. Cir. 2005).

60 Hamdan v. Rumsfeld, 548 U.S. 557, 629 (2006).

61 Protocol I, art. 43(2).

62 Headquarters, War Department, General Orders No. 100 (1863), reprinted in Francis 

Lieber, Instructions for the Government of Armies of the United States in the Field (Washington, 

DC: Government Printing Office, 1898), available at http://www.loc.gov/rr/frd/Military_

Law/Lieber_Collection/pdf/Instructions-gov-armies.pdf.

63 Marco Sassoli and Laura M. Olson, “The Relationship Between International Humanitarian and Human Rights Law Where it Matters: Admissible Killing and Internment of 

Fighters in Non-International Armed Conflicts,” International Review of the Red Cross 871 

(2008): 606.

64 Ibid.

65 Ex parte Quirin, 317 U.S. 1, 31 (1942).

66 Elsea, Treatment of “Battlefield Detainees” in the War on Terrorism, 8.

67 Associated Press, “Red Cross Workers Visit Saddam Hussein,” Fox News, February 21, 

2004, http://www.foxnews.com/story/0,2933,112095,00.html.

68 GC I, art. 28, 24, 26.

69 FM 27-10, The Law of Land Warfare, ¶ 67(c).

70 FM 27-10, The Law of Land Warfare, ¶ 68.

71 GC I, art. 25.

72 GC I, art. 22.

73 GC I, art. 19, 22.
Appendices

179

74 GC I, art. 30.

75 GC III, art. 85.

76 GC III, art. 4(A)(2)(a)-(d).

77 Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict

(New York: Cambridge University Press, 2010), 45.

78 GC III, art. 4(A)(6)

79 Prosecutor v. Kupreškić, Case No. IT-95-16-T, Trial Judgment, ¶ 521 (Int’l Crim. Trib. for 

the Former Yugoslavia January 14, 2000).

80 GC IV, art. 4.

81 Protocol I, art. 51(1)-(3).

82 Ibid. (emphasis added).

83 Protocol I, art. 50(3).

84 Nils Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities 

under International Humanitarian Law,” International Review of the Red Cross 90, no. 872 

(2008), 28.

85 Ibid., 36.

86 Ibid., 991–1047.

87 International Committee of the Red Cross, Commentary on the Additional Protocols to the 

Geneva Conventions, eds. Yves Sandoz, Christophe Swinarski, and Bruno Zimmerman 

(Geneva: International Committee of the Red Cross, 1987).

88 DiMeglio et al., Law of Armed Conflict Deskbook, 141n9.

89 Michael N. Schmitt, “The Interpretive Guidance on the Notion of Direct Participation in 

Hostilities: A Critical Analysis,” Harvard National Security Journal 1 (2010): 5–44, http://

www.harvardnsj.com/wp-content/uploads/2010/05/Vol.-1_Schmitt_Final.pdf.

90 W. Hays Parks, “Part IX of the ICRC ‘Direct Participation in Hostilities’ Study: No Mandate, No Expertise, and Legally Incorrect,” New York University Journal of International Law 

and Politics 42 (2010): 769–830.

91 Kenneth Watkin, “Opportunity Lost: Organized Armed Groups and the ICRC “Direct 

Participation in Hostilities” Interpretive Guidance,” New York University Journal of International Law and Politics 42 (2010): 641–695.

92 Chairman of the Joint Chiefs of Staff Instruction, Standing Rules of Engagement for US 

Forces: CJCSI 3121.01A (January 15, 2000).

93 DiMeglio et al., Law of Armed Conflict Deskbook, 142–143.

94 Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities under 

International Humanitarian Law,” 46.

95 Ibid., 48.

96 Ibid., 49.

97 Solis, The Law of Armed Conflict: International Humanitarian Law in War, 203.

98 Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities under 

International Humanitarian Law,” 52.

99 Ibid., 53.

100 Ibid., 54.

101 U.S. v. Salim Ahmed Hamdan, U.S. Military Commission AE084, Military Judge Order 

On Reconsideration Ruling on Motion to Dismiss for Lack of Jurisdiction, at 5, December 19, 2007 (citing ICRC Summary Report, Third Expert Meeting on the Notion of 

Direct Participation in Hostilities (Geneva: ICRC, 2005) available at http://www.defense.

gov/news/Dec2007/Hamdan-Jurisdiction%20After%20Reconsideration%20Ruling.pdf.

102USA v. Salim Ahmed Hamdan, at 6.
180

Legal Implications of the Status of Persons in Resistance

103HCJ 769/02 The Public Committee Against Torture et al. v. the Government of Israel 

et al. 46 I.L.M. 375 ¶ 35 [2006] (Isr.) available at https://www.law.upenn.edu/institutes/

cerl/conferences/targetedkilling/papers/IsraeliTargetedKillingCase.pdf.

104Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities under 

International Humanitarian Law,” 59.

105 Ibid., 60.

106 Ibid., 60–63.

107Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 35.

108Military Commissions Act of 2009, 10 U.S.C. § 948(a)(7) (2006).

109George Fletcher and Jens David Ohlen, Defending Humanity (New York: Oxford University Press, 2008), 183.

110 Protocol I, art. 37.

111 FM 27-10, Law of Land Warfare, ¶ 74.

112US Department of Defense, Department of Defense Detainee Program: DoD Directive 2310.01E, 

September 5, 2006.

113 Ibid., ¶ E2.1.1.

114 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

115US Department of Defense Deputy Secretary of Defense, Order Establishing Combatant 

Status Review Tribunal (Memorandum for the Secretary of the Navy), July 7, 2004, ¶ a, 

http://www.defense.gov/news/Jul2004/d20040707review.pdf; William Glaberson, “U.S. 

Won’t Label Terror Suspects as ‘Enemy Combatants,’ ” New York Times, March 13, 2009, 

http://www.nytimes.com/2009/03/14/us/politics/14gitmo.html?_r=0.

116 Joint Publication 3-63 (JP 3-63), Detainee Operations (US Joint Chiefs of Staff, February 6, 

2008).

117 US Department of Defense, DoD Law of War Program: DoD Directive 2311.01E, February 22, 

2011, ¶ E2.1.1.
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INDEX

Index

201

A

Abella v. Argentina, 9, 10

Abu Ali, Ahmed Omar, 92

Acts of war, in insurgencies, 73

Additional Protocol I, 20–22, 141, 

152–154

civilian participation in hostilities, 

168–169

combatant status, 162

definition of civilian, 167

insurgency, 73, 74

Additional Protocol II, 141, 152–154

belligerency, 94

and domestic laws, 76

insurgency, 67, 68, 72, 77–78

rebellions, 49–50

and resistance continuum, 8

reversion of protections to, 11

signers of, 74

Additional Protocol III, 154–155

Additional Protocols, 99

Afghanistan, 12, 36, 119, 161–162

Africa, civil rights in, 38

African National Congress (ANC), 30, 

39, 40

Al Qaeda, 119, 120, 129–130

Al Qaeda Network Execute Order, 130

American Civil War, 90–91, 94, 102

Annan, Kofi, 80

Antiapartheid resistance (South 

Africa), 25, 30–31, 38–41

Antinuclear nonviolent resistance, 41

Arab Spring, 25

Argentina, 9, 10

Armed conflict, 3–4; See also Law of 

armed conflict (LOAC)

belligerency, 89

defined, 141

insurgencies, 68–69

international (See International 

armed conflict [IAC])

noninternational (See

Noninternational armed conflict 

[NIAC])

under Prosecutor v. Limaj, 79

status of participants, 160–168

war vs., 76, 105–106, 147–148

Armed forces

defined in military manuals and 

ICRC scholarship, 99

entering territory of another 

country, 52–53

in insurgencies, 67

persons accompanying but not 

members of, 166

in rebellions, 51–52

War Powers Resolution (US), 114–

120

Armed Services Committees 

(Congress), 122

A&T status, 54

Authorization for the Use of Military 

Force (AUMF, 2001), 114, 119–

120, 131–132

B

Balkans, 118

Ban Ki-moon, 132

Belgium, 77

Belligerency, 4, 5, 87–106

defined, 141

implications for participants, 96–97

insurgency vs., 69

Iraq-Kurdistan conflict, 101–106

status of foreign troops supporting 

standing government, 97–101

status of standing government 

personnel, 97–101

war vs., 89–90

Belligerent (term), 141

Belligerent nexus, 171, 173–174

Belligerent status

as being de facto state, 89–90, 96
202

Legal Implications of the Status of Persons in Resistance

for foreign troops supporting 

insurgents, 74–75

for foreign troops supporting 

standing government, 97–98

in insurgency, 67, 71–74

in noninternational armed 

conflicts, 73–74

Big Saturday (Nashville), 38

Bin Laden, Osama, 121

Black Panther Party, 26

Blockades, 102

Boehner, John, 117

Boynton v. Virginia, 37

Brazil, 56, 57

Brennan, John, 130

Brown v. Board of Education, 37, 38

Bush, George W., 130, 161

Bush administration, 119, 152

Bush doctrine, 31

C

Carter, Amy, 41

Central Intelligence Agency (CIA), 41, 

121, 122

covert actions, 124–125

status of agents in Korean War, 34

in Syria, 132

and Title 50 activities, 126

Chaplains, 165

Charter of the Organization of 

American States, 52

Chavez, Hugo, 33, 35

China, 34

Civil disobedience, 25, 36–37

Civilian clothing, use of, 35–36

Civilians, 167–168

Additional Protocols protections 

for, 20

in belligerencies, 98

direct participation in hostilities, 

168–174

foreign troops supporting 

insurgents as, 75

ICRC categorization of, 72–73

in insurgencies, 67, 72–73

in Kosovo conflict, 78

Civil Rights Act of 1964, 38

Civil rights movement (US), 25–26, 

36–38

Civil society organizations (CSOs, 

Zimbabwe), 28–30

Civil wars

American, 90–91, 94, 102

as belligerency, 94

Clandestine operations, 44, 122–129

Clapper, James, Jr., 125

Clinton Bill, 118

Combatants

lawful, 162–164

unlawful, 163–164, 173–176

Combatant’s privilege, 50, 60, 72

for belligerents, 98

foreign troops in insurgencies, 67

in insurgency, 71, 75

Combatant status, 11

in armed conflicts, 72

in belligerencies, 97–98

for foreign troops in 

unconventional warfare, 99

rebels’ ineligibility for, 50, 60

Combatant Status Review Tribunal 

(CSRT), 175

Common Article 2 (Geneva 

Conventions), 19–20, 141–142, 

151, 156

armed conflict, 76

belligerency, 96–97, 105

Common Article 3 (Geneva 

Conventions), 19, 121, 142, 151, 

156–160

belligerency, 92–94, 96

and domestic laws, 76

insurgency, 67–69, 71–74, 77–78

rebellions, 49, 50
Index

203

and resistance continuum, 8

reversion of protections to, 11

Common Articles (Geneva 

Conventions), 19, 155–160

Comprehensive Anti-Apartheid Act 

(1986), 31

Confederacy (Civil War), 90–91

Congo, 91

Congress of South African Trade 

Unions (COSATU), 39

Constitution of the United States; See

US Constitution

Counterinsurgency (COIN), 3, 10, 54, 

77, 142

Covert operations

clandestine operations vs., 44, 

122–129

in Syria, 132–133

Customary International 

Humanitarian Law Database 

(ICRC), 98

Customary international law (CIL), 

145–146

Czechoslovakia, 25

D

Declarations of war, 89–90

Defiance Campaign (South Africa), 39

Democratic Alliance for Change 

(Tuaregs), 58

Denied area, 142

Department of Defense (DoD)

covert and clandestine activities, 

123–126, 130

Directive 5525, 55

Directive 2310.01E, 175–176

Title 10 and Title 50 authority, 

121–122

use of OPE label, 131

Detainees, 175–176

Direct causation, 171–173

Direct participation in hostilities, 

168–174

Distinction, principle of, 150

Domestic law (in general)

in absence of negotiated sharing of 

jurisdiction, 53

defined, 142

for espionage, 33–35

and government manipulation of 

legal structure, 30

insurgency, 67, 73, 76

insurrection response laws, 52

and nonviolent resistance, 26, 31

rebellious acts liable to, 49–52, 55

treaties, 146

and US personnel assisting 

nonviolent resistance, 42–43

domestic law (in general)

rebellious acts liable to, 51–52

Domestic law (United States), 111–133

covert vs. clandestine in, 122–129

current issues in, 129–133

Title 10, 120–122

Title 50, 122–125

“traditional military activities” and 

“routine support,” 126–128

use of military in enforcing, 38

War Powers Resolution, 114–120

Downey, John, 34

Duration of violence, 8

E

Eisenhower, Dwight D., 30, 38

El Salvador, 12

Emerging threat theory (Bush 

doctrine), 31

Enemy combatants, 175

Espionage, 33–35, 98, 100

Europe, 149

Executive Order 12,333, 122

Executive Order 13,470, 122

Ex parte Quirin, 163
204

Legal Implications of the Status of Persons in Resistance

F

Fecteau, Richard, 34

Federal Republic of Yugoslavia (FRY), 

78–80

Foreign internal defense (FID), 3, 10, 

142

and nonviolent resistance, 31

in rebellions, 54, 55, 59

Foreign military

in insurgencies, 67, 74–76

supporting belligerents, 98–101

supporting standing government in 

belligerency, 97–101

training of, 22

US military in foreign countries (See

US personnel)

France, 101–102, 103, 118

G

General Assembly Resolution 2131 

(UN), 52

Geneva Convention for the 

Amelioration of the Condition 

of the Wounded and Sick in 

Armed Forces in the Field, 165

Geneva Conventions (1949), 4, 19–22, 

142, 151–162; See also individual 

Common Articles

and Additional Protocols, 20, 

152–155

armed conflict vs. war, 147–148

belligerency, 89–90, 92–94, 96–97, 

99, 101

combatant status, 72

Common Article 2, 19–20

Common Article 3, 8, 11, 19, 20

Common Articles, 19, 155–160

conflict status, 160–162

as custom, 145–146

prisoners of war, 76

German Peace Movement, 41

Government; See also Standing 

government; States

force and severe oppression by, 43

harassment by, 29

lawful/rightful vs. government in 

control during rebellions, 51

Greece, 75

Guantanamo Bay detainees, 119, 152

Gulf of Tonkin resolution, 116

H

Hague Conventions (1907), 4

Hamdan v. Rumsfeld, 4, 92, 152, 158, 

162

Hamdi v. Rumsfeld, 175

High Contracting Parties, 8, 76, 96–97

Honduras, 56, 59

Hors de combat, 73, 97, 98, 164

Host nation (term), 142

House Armed Services Committee 

(HASC), 131

House Permanent Select Committee 

on Intelligence (HPSCI), 

130, 131

Human intelligence (HUMINT), 122

Humanity, 150–151

Hussein, Saddam, 101, 164

I

Illegal political acts (in nonviolent 

resistance), 25, 36–43

defined, 142

status of the resistance, 40–42

status of US personnel assisting, 

42–43

Immunities for US personnel, 54, 55

Indirect civil disobedience, 36–37

Insurgency, 4, 65–81

Additional Protocols’ IHL 

protections, 20

belligerency vs., 69

defined, 143

factors determining, 68–70
Index

205

IHL and status of persons in, 72–81

rebellion vs., 59, 68

recognition of, 70–71

status of individuals captured by 

insurgents, 77–78

status of insurgents, 71–74

status of Kosovo Protection Forces, 

78–81

status of military personnel 

assisting insurgents–UW, 67, 

74–76

status of military personnel 

assisting standing government–

counterinsurgency, 77

status of standing government, 76

Insurgents

according belligerent status to, 

71–74

foreign troops positioned as, 74–75

status of, 71–74

status of individuals captured by, 

77–78

status of military personnel 

assisting–UW, 74–76

Insurrection laws, 50, 52

Insurrections, 49

INS v. Chadha, 115

Intelligence operations, 122, 128, 131, 

133

Intensity, duration, and scope of 

hostilities, 8, 11–12

belligerencies, 89

insurgency, 67–70

rebellions, 49, 56, 57–58

Inter-American Commission on 

Human Rights, 9

Internal conflicts, 4, 49, 71, 92; See 

also specific types of conflict, e.g.

Rebellions

International armed conflict (IAC), 7

Additional Protocol I IHL 

protections, 20

and Article 4, 106

belligerencies, 94, 97–101

categories of, 19–20

combatant’s privilege under, 50, 98

Common Article 2, 19–20, 156

Common Article 3, 93

conflict status of participants, 

160–162

customary law of, 97

defined, 143

insurgencies, 67, 75–76

in Libya, 11–12

noninternational armed conflict 

vs., 80–81

POW status, 121

status of persons engaged in, 11–12

International Committee of the Red 

Cross (ICRC), 72–73, 98–100, 

105, 169–174

International conflicts, 3

International Court of Justice, 52

International courts, 147

International Criminal Court, 146

International Criminal Tribunal for 

Rwanda, 73, 146

International Criminal Tribunal for 

the Former Yugoslavia (ICTY), 

69–70, 73, 79, 81, 143, 146, 159

International humanitarian law (IHL), 

7, 12, 19, 143

Additional Protocols, 20–22

belligerency, 89, 90, 92, 97–101, 

105–106

Geneva Conventions (1949), 19–22

insurgency, 67, 71, 76, 77

and international human rights 

law, 21

and nonviolent resistance, 26, 34

and rebellions, 49–52

relationship with other law, 147–149

and resistance continuum, 8–9

and status of persons in insurgency, 

72–81

UN Charter and, 95–96

International human rights law 

(IHRL), 21–22, 143
206

Legal Implications of the Status of Persons in Resistance

for armed forces or agents entering 

another country without legal 

basis, 53

and domestic laws, 76

and government manipulation of 

legal structure, 30

and rebellions, 51, 52

relationship with other law, 147–149

International law, 145–176

activities illegal under domestic law 

but lawful and supported under, 

113

activities legal under domestic law 

but impermissible under, 113

acts punishable as violations of, 73

applicable to persons in 

rebellions, 49

belligerency doctrine, 92–93

as defense in nonviolence through 

illegal acts, 41–42

defined, 143

insurgency, 68

notification of parties to armed 

conflicts, 100

for operation in another state 

without permission, 53–54

on third-party involvement in states’ 

domestic affairs, 52

US domestic law and, 117–118

violation of, 10

International Military and Education 

Training (IMET), 22

Iran, 102–103

Iraq invasion (2003), 161

Iraq-Kurdistan conflict, 101–106

Irregular warfare (IW), 3, 4, 12

“Isolated and sporadic” acts of 

violence, 9, 25

Israeli High Court of Justice, 173

Italy, 77, 118

Ithaca, New York, 41

J

Jaua, Elias, 32

Johnson, Jeh, 120

Judicial precedent, 146–147

K

Kennedy, Robert, 30–31

Kerry, John, 32

Korean War, 34, 114

Kosovo Liberation Army (KLA), 9, 58, 

59, 69–70, 78–81

Kosovo Protection Forces (KFOR), 

78–81

Kurdistan, 101–106

L

Law enforcement personnel, used 

against rebels, 51–52

Lawful combatants, 162–164

Law of armed conflict (LOAC), 17, 

145–176

and Article 4, 106

belligerency, 89–92, 94–97, 101

defined, 143

key principles, 149–151

protections under, 11

relationship with other law, 147–149

sources of law, 145–147

and Title 10 and Title 50, 121

traditional US view of, 21–22

unlawful combatants, 175

for UN operations, 80–81

on wearing of uniforms, 35–36

Law of Armed Conflict Deskbook (Army), 

148, 170

Law of the flag, 54

Law of war (LOW), 19; See also Law of 

armed conflict (LOAC)

for internal conflicts, 71

relationship with other law, 147–149
Index

207

Law of War Handbook (Army), 148

Lebanon, 12, 118–119

Legal processes and institutions (in 

nonviolent resistance), 25–36

government manipulation of legal 

structure, 30

interference with legitimate 

exercise of political processes, 

28–29

and recognition of resistance, 

30–31

status of the resistance, 29–31

status of US personnel supporting, 

26–27, 31–36

using existing processes, 27–28

Legal protections, 7

Legal structure, government 

manipulation of, 30

Levée en masse, 167, 169

Libya, 11–12, 99, 104, 113, 117

Lieber Code, 91, 94, 163

Lincoln, 90–91

Luthuli, Albert, 30

M

Maduro, Nicolas, 32, 33, 44

Malaya, 91

Mali, 56–59

Mandela, Nelson, 31, 40

Martial law (Poland), 27–28

Matheson, Michael J., 154

Medical personnel, 165

Mexico, 75

Micheletti, Roberto, 59

Military necessity, principle of, 150

Military personnel; See Armed forces

foreign (See Foreign military)

status of (See Status of military 

personnel)

US (See US personnel)

Militias, members of, 166

Milosevic, 78

Mini-SOFA, 54–55

Morrow, Dwight W., 75

Moussaoui, Zacarias, 92

N

National Association for the 

Advancement of Colored People 

(NAACP), 37

National Command Authorities, 

126–127

National Defense Authorization Act 

(NDAA), 120

National Security Council, 122

National Union of South African 

Students (NUSAS), 30

Necessity defense, for nonviolence 

through illegal acts, 40–42

Negotiation with rebels, 58

New York Times, 5

Nicaragua v. U.S., 158

Niger-Mali Tuareg Alliance, 58

Nixon, Richard, 34, 115

No-fly zones, 103–104, 106

Nongovernmental organizations 

(NGOs), 30

Noninterference principle, 49

Noninternational armed conflict 

(NIAC), 4, 9

Additional Protocol II, 20, 68

and combatant’s privilege, 50

Common Article 3, 20, 68, 93–94, 

121, 156–160

conflict status of participants, 

160–162

defined, 143

humanitarian norms under, 20

insurgency, 67, 70–72, 74–76

international armed conflicts vs., 

80–81

in Libya, 11–12

status of belligerents in, 73–74

status of persons engaged in, 11–12

Nonintervention principle, 52
208

Legal Implications of the Status of Persons in Resistance

Nonstate actors

Additional Protocol II, 68

in belligerencies, 89

Common Article 3, 20, 68

Nonviolent conflict, 25

Nonviolent resistance, 4, 23–43

effectiveness of, 25

legal processes as, 26–36

through illegal political acts, 36–43

North Atlantic Treaty Organization 

(NATO)

in Balkans, 118

in Kosovo, 78–81

in Libya, 11–12, 99

status of forces agreement of 1951, 

54–55

Notification of parties to armed 

conflicts, 100

Nuremberg tribunals, 146

O

Obama, Barack, 33, 117, 130, 132

Obama administration, 119, 129–130

Occupation of territories, 20

Operational preparation of the 

environment (OPE), 130, 131

Operation Desert Storm, 104

Organization of American States, 52

Organization of parties in resistance, 

8, 11–12

belligerencies, 89

insurgencies, 67–70

rebellions, 49, 56–58

Otpor! movement (Serbia), 25

Oversight of intelligence/military 

activities, 131

P

Pan-Africanist Congress (PAC), 39

Panetta, Leon, 121

Parks, Rosa, 36–37

Perfidy, acts of, 174

Peshmerga, 101, 102

Poland, 27–28

Policy

law and, 10

supporting treatment of non-US 

personnel, 22

Political acts

illegal (See Illegal political acts [in 

nonviolent resistance])

legal, 29–30 (See also Legal 

processes and institutions [in 

nonviolent resistance])

Political processes, interference with 

legitimate exercise of, 28–29

President of the United States, war 

powers of, 114–120

Prisoner of war (POW) status, 7, 11, 

121, 163–164

in belligerencies, 91, 97–98, 100

for Civil War Confederate 

soldiers, 91

in insurgencies, 71, 72, 75, 76

levée en masse, 167, 169

for members of other militias and 

volunteer corps, 166

and nonviolent resistance, 34

for persons accompanying but not 

members of armed forces, 166

rebels’ ineligibility for, 50, 60

and “unlawful enemy 

combatants,” 92

Private voluntary organizations, 28

Privileged belligerents, 11

Prize Cases, 94

Proportionality, principle of, 150

Prosecutor v. Limaj, 69–70, 79, 81, 159

“Protesters,” 56

Purpose, indicators of, 69

Q

Qadhafi, Muammar, 117
Index

209

R

Reagan, Ronald, 118–119, 122, 153–154

Rebellions, 4, 5, 47–60

in context, 56–60

defined, 143

insurgencies vs., 68

short-lived, 8–9

status of standing government, 

51–52

status of the resistance, 49–51

status of US personnel, 52–55

Recognition of resistance, 10

belligerency, 89–96

insurgency, 67, 70–71

nonviolence using legal 

processes, 30–31

rebellions vs. insurgency or 

belligerency, 50–51

Resistance

defined, 4, 143

Deskbook categories of, 22

influences on categorization of, 

10–11

persons involved in, 3 (See also

Status of persons in resistance)

stages of, 4–7 (See also Resistance 

continuum)

state’s recognition of, 10 (See also

Recognition of resistance)

Resistance continuum, 4, 7–12; See also

specific stages of resistance

belligerency, 87–106

insurgency, 65–81

and international human rights law, 

21

nonviolent resistance, 23–43

rebellions, 47–60

Resistance movements, historical, 7

Retainees, 164–165

Riots, 8–9, 49

Rome Statute (1998), 146

“Routine support,” 126–128

Rules of war, 102

Ruling authorities, undermining, 25

Rumsfeld, Donald, 130

S

Scotland, 41

Secretary of Defense, 131

Senate Armed Services Committee 

(SASC), 120, 131

Senate Select Committee on 

Intelligence (SSCI), 131

September 11, 2001, terrorist attacks, 

119, 120

Serbian armed forces, in Kosovo, 58, 

69–70, 78–81

Serbian Otpor! movement, 25

Short-lived rebellions, 8–9

Solidarity (Poland), 27–28

Sources of law, 17–22, 145; See also

individual sources

Additional Protocols, 20–22

Geneva Conventions (1949), 19–22

law of armed conflict (LOAC), 17

South Africa

antiapartheid resistance, 25, 30–31, 

38–41

judicial systems, 43

Sharpeville massacre, 30, 39

Soweto Uprising, 39

Sovereign immunity, under law of the 

flag, 54

Special operations forces (SOF)

increased reliance on, 130–131

protection of human rights by, 22

wearing of indigenous/civilian 

attire by, 36

Spies, personnel labeled as, 32–35; See 

also Espionage

Standing government

defined, 143–144

recognition of resistance by, 95

sovereign rights and duties in 

noninternational armed 

conflicts, 76
210

Legal Implications of the Status of Persons in Resistance

status of (See Status of standing 

government)

status of military personnel 

assisting–counterinsurgency, 67, 

77

Standing Rules of Engagement, 170

States; See also Government

citizen and noncitizen treatment 

by, 21

Common Article obligations of, 19

and internal conflict, 49

intervention in foreign rebellions, 

52–55

recognition of resistance by, 10, 

95 (See also recognition of 

resistance)

right to put down rebellions, 50

Status (term), 144

Status of captured individuals; See also

Prisoner of war (POW) status

belligerencies, 100

insurgencies, 77–78

Status of forces agreements (SOFAs), 

53–55, 144

Status of military personnel

assisting insurgents–UW, 74–76

assisting standing government–

counterinsurgency, 77

supporting standing governments 

in belligerency, 97–101

US military (See Status of US 

personnel)

Status of persons in resistance, 3, 5, 7

belligerency, 89, 96–101

conflict status, 160–162

direct participation in hostilities, 

168–174

under Geneva Conventions, 

160–168

insurgency, 67, 71–81

significance of, 9–10

Status of resistance

nonviolent resistance through 

illegal political acts, 40–42

nonviolent resistance using legal 

processes, 26–27, 29–31

rebellions, 49–51

Status of standing government

belligerency, 97–101

insurgency, 76

rebellion, 51–52

Status of US personnel

assisting nonviolent resistance 

through illegal political acts, 

42–43

in rebellions, 52–55, 59–60

supporting foreign opposition 

parties, 27

supporting nonviolent resistance 

through legal processes, 26–27, 

31–36

Stimson, Henry L., 75

Syria, 12, 102, 132–133

T

Taliban, 36, 119, 120

Taliban–Northern Alliance conflict 

(Afghanistan, 161–162

Territorial control, 49, 53

belligerency, 89

insurgency, 67

Iraq-Kurdistan conflict, 102

Threshold of harm, 171–172

Title 10 (US), 120–122, 130, 131

Title 50 (US), 122–125, 133

“Total tourist,” 22

Tracy, Tim, 32–35

“Traditional military activities,” 

126–128

Training of foreign military, 22

“Treacherous use of civilian 

clothing,” 36

Treason laws, 50

Treaties, 145, 146; See also Geneva 

Conventions (1949)

Treaty law, 78
Index

211

Tribunals, 76, 92; See also individual 

tribunals

Trusts (CSOs), 28

Tuareg rebellion (Mali), 56–59

Turkey, 102, 103

U

Umkhonto we Sizwe, 39, 40

Unconventional warfare (UW), 3, 10

in belligerencies, 99

covert missions, 128

defined, 144

nonroutine activities in, 127–128

nonviolent resistance in, 26

in rebellions, 54, 55, 59

status of military personnel 

assisting insurgents, 74–76

USSOCOM authority over, 121–122

under War Powers Resolution, 116

Unified Command Plan (2004), 130

Uniforms

in armed conflicts and nonviolent 

resistance, 35–36

under mini-SOFAS or visiting forces 

agreements, 54–55

United Democratic Front (UDF), 39

United Kingdom, 90, 101–104, 118

United Nations (UN)

and belligerencies, 95

Iraq-Kurdistan conflict, 103–106

peacekeeping operations, 80, 95

on US military in Syria, 132

United Nations Charter, 52, 95–96, 113

United Nations General Assembly, 10

United Nations Security Council, 

10, 144

dispute investigation by, 95–96

Iraq-Kurdistan conflict, 103–105

Kosovo resolution, 78

Libya Resolution 1973, 104

Resolution 1973, 117

resolutions of, 113

threats to international peace and 

security, 105

United States

and Additional Protocol II, 8–9

apartheid in South Africa, 30–31

armed forces enforcing state 

laws in, 51

civil rights movement, 25–26, 36–38

Civil War, 90–91, 94

domestic law (See Domestic law 

[United States])

and Honduras coup, 59

and insurgency in Greece (1935), 75

and insurrection in Mexico (1929), 

75

insurrection response laws in, 52

Iraq-Kurdistan conflict, 101–104, 

106

military personnel (See US 

personnel)

relinquishment of operational 

command and control, 99–100

status of nonviolent resistance 

through illegal acts, 40–41

unlawful combatants, 173–176

unlawful enemy combatants, 92

view of LOAC separate from 

IHRL, 149

United States Congress

treaty obligations, 146

war powers of, 114–120

United States v. Cassidy, 41

United States v. Dorrell, 41

United States v. May, 41

Universitas (CSOs), 28

Unlawful combatants, 92, 163–164, 

173–176

U.S. v. Salim Ahmed Hamdan, 173

US Constitution

Article I, 50

authority over armed forces, 114

treaty obligations, 146

war powers under, 114
212

Legal Implications of the Status of Persons in Resistance

Use of legal processes for political 

advantage, 144

US personnel

defined, 144

justification for entry to foreign 

countries, 31–32

status in resistances (See Status of 

US personnel)

treatment of all other personnel 

by, 22

US Special Operations Command 

(USSOCOM), 121–122, 130

US Supreme Court

American Civil War, 91, 102

Ex parte Quirin, 163

Hamdan v. Rumsfeld, 92, 152, 

158, 162

Hamdi v. Rumsfeld, 175

Prize Cases, 94

treaty obligations, 146

V

Velvet Revolution (Czechoslovakia, 

199), 25

Venezuela, 32–35

Vienna Convention on Diplomatic 

Relations, 54

Vienna Convention on the Law of 

Treaties, 146

Viet Cong, 174

Vietnam War, 114, 116

Visiting Forces Acts, 55

Visiting forces agreements, 54–55

Volunteer corps, 166

W

Walesa, Lech, 28

Walker v. City of Birmingham, 37

War

armed conflict vs., 76, 105–106, 

147–148

belligerency vs., 89–90

War crimes, 72

War on terrorism, 119

War powers (US), 114

War Powers Resolution (War Powers 

Act, WPR), 114–120

Z

Zelaya, Manuel, 56

Zimbabwe, 28–30