In international armed conflict, citizens of non-belligerent states can (and should) find their way on the battlefield. Whether they arrive as volunteers, security company employees or mercenaries, so-called third-country nationals test the common assumption that states fight wars with armies of their own citizens. faithful. But foreign fighters are not new. They are a regular feature of warfare, and the law of armed conflict reaches out to them and protects them like anyone else.
In this article, the ICRC’s senior legal adviser, Ramin Mahnad, explains what the Geneva Conventions and other sources of the law of armed conflict – international humanitarian law (IHL) – say about combatants who are not nationals belligerent states.
International humanitarian law does not prohibit third-country nationals from taking part in hostilities. There is no rule obliging states to rely exclusively on their own citizens to constitute their armed forces, and individuals who come from abroad to fight do not simply violate IHL. However, the nationalities of the combatants and the circumstances of their participation may affect their status and the corresponding rights if they fall into the hands of the adversary.
Regardless of the legal category to which they belong depending on the circumstances and regardless of their nationality, detained, injured and deceased third-country nationals who have engaged in combat remain at all times within the scope of protection of IHL. No person affected by armed conflict may be excluded from legal protection because of their acts or because of their citizenship.
What are the rights and protections of detained third country nationals? Are they protected as prisoners of war (POW)?
When combatants from non-belligerent states are captured, their status largely depends on the type and degree of affiliation they have with the state for which they are fighting. If, for example, they join the armed forces of the state before their capture, or if the state incorporates their unit into its armed forces, captured combatants are protected as prisoners of war (POW) under the Third Geneva Convention. According to the treaties in force, their status of prisoner of war can be activated different criteria, but nationality is never one of them.
The detaining state is required to afford third-country nationals with POW status the full range of Third Convention protections. The state must deal with them humanly and in respect of their honour, register them and notify their National Intelligence Bureau and the ICRC’s Central Tracing Agency, allow them to match with their families, protect them from exposure to public curiosityand provide them with appropriate living conditions in the event of internment, among other things.
It is important to note that third-country nationals captured while serving in the adversary’s armed forces are entitled to combatant immunity. The right to take part in hostilities, which protects captured troops from criminal treatment, does not cease to apply simply because a combatant is a citizen of a non-belligerent state. As with other prisoners of war, the capturing State may therefore intern them until the end of active hostilities to prevent a return to the battlefield, but it is prohibited from prosecuting them simply for committing violence against its strengths.
If there is any doubt as to whether a person who has participated in hostilities is entitled to prisoner of war status, he or she should enjoy the POW protections of the Third Convention until their status has been determined by a competent court.
Are third-country nationals who fight in a war “mercenaries”?
The mere fact that a person is fighting for a foreign country does not make him a “mercenary” for that state under the law of armed conflict. In reality, treaty and Customary IHL define the term “mercenary” much more narrowly than its use in public discourse sometimes suggests. For example, members of the armed forces of a belligerent state – whatever their nationality – cannot, by definition, be considered mercenaries. Consequently, anyone who joined the armed forces of a foreign state are not mercenaries and cannot be denied POW protection (including immunity from prosecution) on such grounds.
Even if third-country nationals take part in fighting without join the armed forces of a State, they are not automatically considered mercenaries under IHL. To treat them as mercenaries, a state would have to further prove, among other things, that they are motivated to participate primarily by the desire for private gain. It should also demonstrate that they have been promised, by or on behalf of a Party to the conflict, material compensation substantially greater than that Party pays to its armed forces.
A person who falls under the definition of mercenary is not entitled to prisoner of war status but remains protected by other rules of IHL, as explained in more detail below.
What is the status of foreign personnel of private military and security companies?
Private military and security companies (PMSCs) do not, as such, constitute a legal category under the law of armed conflict. The status of a third-country national working for a PMSC therefore depends on the same factors as any other person of that nationality. In a situation where the PMSC is part of the armed forces of the State, the personnel of the PMSC are entitled to prisoner of war status like any other member of the armed forces (and the The state is responsible for their actions as well as for its other armed forces). The status of third-country PMSC staff is therefore highly dependent on the facts of each situation.
What does the law say about third-country nationals who fight without being members of a state’s armed forces?
All third-country nationals who fight without meeting the criteria for protection as prisoners of war when captured still enjoy protection as civilians under other sources of IHL. The Fourth Geneva Convention, Additional Protocol I, and customary IHL can all potentially apply and, unlike the POW regime, the nationality of civilians can matter for specific rules. In any case, IHL will guarantee their humane treatment, ensure that the Central Tracing Agency is able to inform their families and the countries concerned, regulate the material conditions and procedural safeguards applicable to the internment of nationals foreigners who pose a compelling threat to security, and ensuring a fair trial in the event of criminal charges, among others.
Although IHL does not prohibit the direct participation of civilians in hostilities, it discourages it. Civilians taking part in hostilities do not enjoy combatant immunity. They are therefore liable to prosecution for the simple fact of having participated in the conflict. However, it is important to note that their right to a fair trial and other judicial guarantees must be respected.
Can enemy forces target third country nationals on the battlefield?
With regard to the conduct of hostilities, the nationality of individual combatants has no bearing on whether they are legitimate targets. IHL prohibits attacks against civilians unless and as long as they participate directly in hostilities. Civilians are all persons who are not members of the armed forces of a party to the conflict. For the purposes of the conduct of hostilities, the armed forces of a party to the conflict include all organized armed forces, groups and units under a command responsible to that party for the conduct of its subordinates. All of the above categories operate regardless of nationality.
Are States of origin responsible for the behavior of third-country nationals?
Although they are not parties to the conflict, the States of origin of third-country nationals are responsible for disseminating the content of the Geneva Conventions and their additional protocols to their armed forces. and their civilian populations. They are also required to criminalize, investigate and prosecute, where appropriate, grave breaches of the Geneva Conventions, including those committed by their nationals in conflicts taking place outside their own territory. These obligations reflect and are in addition to the general obligation to respect and ensure respect for IHL under Common Article 1 and customary law.
However they approach the battlefield, combatants from non-warring states will invite scrutiny. From a legal point of view, there is no doubt that they are entitled to the full protection of IHL and that they cannot be categorically excluded from any protected status – prisoner of war or civilian – simply because of their nationality. not belligerent.
- Christian Cardon, Thomas de Saint Maurice & Kelisiana Thynne, Post-wars and conflicts: from challenges to solutions, September 13, 2022
- Ellen Policinski, Prisoners of War in Contemporary Armed Conflicts: Interpreting the Third Geneva Convention over 70 years after its negotiation, August 11, 2022
- Mikhail Orkin & Tristan Ferraro, IHL and occupied territory, July 26, 2022