“Enemy Controlled Battlespace”: The Contemporary Meaning and Purpose of Additional Protocol I’s Article 44(3) Exception

Abstract

The contemporary propensity for, and risk of, armed conflict taking place among the civilian population has cast a new light on a number of the long-standing challenges to the application of international humanitarian law (IHL) during modern warfare. One is the determination of combatant status and, more specifically, the question when the general requirement for the combatants to distinguish themselves from the civilian population may exceptionally be attenuated. In order to answer that question, the present Article re-examines Additional Protocol I’s oft-reviled Article 44(3) and adopts an interpretation thereof that better comports with the object and purpose of the provision than those previously in vogue. To lay the foundation for assessing the meaning of the key terms in the provision, the Article first introduces IHL’s extant standards for combatancy. The piece then turns to the travaux préparatoires of Article 44(3). This analysis exposes the limitations of relying solely on the provision’s drafting history to understand the scope of the exception. Therefore, and consistent with the interpretive approach set forth in the Vienna Convention on the Law of Treaties, the Article then considers the object and purpose of Article 44(3). Armed with an understanding of this telos of the provision, the Article proffers “enemy control of battlespace” as the appropriate standard for determining situations to which the exception applies. Finally, the Article highlights a number of legal safeguards that promote the protection of the civilian population whenever the exception is applicable.