|Cours||International humanitarian law|
With international humanitarian law, also known as the law of armed conflict, we are well armed in Geneva to deal with a subject of this type. We will work here with two sets of conventions; first the 1907 Hague Regulations on the Law of War on Land and then the 1949 Geneva Conventions with their two additional protocols.
Rationale and degree of effectiveness of a law of armed conflict[modifier | modifier le wikicode]
Why have a law of armed conflict? The question arises and it is already being raised in a very radical way, because conflict is violence. Having a right to violence may seem at first glance, crazy, fanciful or perhaps simply masochistic, but in any case, it may seem like a contradiction in terms. To domesticate violence through law is not trying to do something that is contrary to the very notion of law, because for all of us, today at least, law calls for order. Order in disorder seems to be a formidable contradiction.
If we take one more step and immerse ourselves not in the spheres of speculation and terminology, but rather in the spheres of experience, we can be equally confused, because we can say, even if a law of violence makes sense and can exist, does it have a practical meaning? Perhaps we could theoretically conceive it, but does it work, works, does it have a real impact in the field. By opening the newspapers, by reading the newspapers, by looking at the TV news, we are watered every day with appalling images, with conflicts that have never been lacking and that have always dotted the world in the style of what we see today in Syria and elsewhere. Here, the point would be to ask whether the game is worth it, assuming that it is possible, is this right not in reality a pipe dream, a pious wish that the field denies every day.
These are two serious issues. We will not try to answer them entirely, but we can suggest a first approximation to the answer. First of all, violence and law, contradictory or not? For Professor Kolb, the answer is a view of the mind to think that war, the armed conflict that is the subject of IHL, is simply disorganized violence, chaos, anarchy. Basically, not really if we think that the very concept of war initially refers to that of the army, of armed forces fighting each other. In this regard, we all know that the army hates anarchy, emptiness and lack of discipline. On the contrary, if there is a place where discipline is frankly rigid, it is in the army. It is therefore not at all said that armed conflict is simply uncontrollable violence. On the contrary, States, through their military force, have been working domestically for some time now because they have a certain interest in it.
International conflict between states is fought between regular armies, non-international armed conflict is what is also called civil war. Chaos is found rather in non-international armed conflicts. In international armed conflicts, there are not many of them, it is well balanced and well thought out. The very large part of IHL is directed at international armed conflicts. The non-international armed conflict is, was and remains the poor relation.
The first objection does not necessarily have decisive weight.
As for the second, the one on experience, it may seem more formidable like everything that has emerged in the categories of reality. But here again, before talking about the effectiveness or efficiency of IHL, let us already note that what we see as a violation, we certainly see it very well because all these violations are exposed in the open in newspapers and elsewhere. Of course, we see nothing at all, because we will never have news in any newspaper to tell us that a particular State has respected a particular dusty rule of the law of armed conflict that the journalist obviously knows absolutely nothing about. How would it be new to say that the right of occupation has been respected in such and such a detailed rule of thumb or that prisoners of war have been treated properly in relation to Convention III, all this is not new.
Professor Kolb suggests not getting caught up in cookie-cutter judgments that would be part of the whole. The violations are there, in the non-international armed conflict, the violations are so numerous that compliance with the rules is as bad as it gets; but for the non-international armed conflict, the situation is entirely different. There is an opposite balance there, there is an overwhelming majority of rules that are respected most of the time and then some violations, some of which are not obvious and questionable. One of the mistakes journalists make is to think that as soon as a civilian dies in a bombardment, IHL has been violated. If IHL is better known, this is by no means the case and IHL accepts even fairly significant civilian collateral deaths if the military advantage is significant enough to counterbalance this unfortunate event in Article 51 § 5.b of the First Additional Protocol and related customary law. There is violation and there is also respect in the international armed conflict, more respect than violations in the non-international armed conflict, much more violations than respects; we must be intellectually honest.
So far we have established one thing, that we are not ridiculous, that we are not grotesque, that we are not grinning except to do an IHL course. All this is possible somewhere, but now positively, what are the reasons for having IHL? That it is possible answers another objection, but does not yet give us a justification for the subject we are dealing with.
The reasons for IHL are threefold.
The first reason, old, it is true, but having gained a lot of weight in a modernity that attributes great value to human life, is humanitarian reason. We have been considering it for some time and Henri Dunant is its living emblem, because one can be alive even if one is dead; humanitarian reason is the one that strikes one first. Of course, we want to limit the harmful effects of war, to ensure that it destroys as little as possible, to ensure that the victims of war, civilians, the wounded and the sick are spared as much as possible. The effort to achieve this seems to us to be worthy of attention and worthy of action.
A more pragmatic reason from a military point of view and no less principled, the mutual advantage of the belligerents. A law of armed conflict would be relatively illusory if States and belligerents did not want it, but it is an advantage for them and that is why we have it. This advantage is of different kinds. First of all, there is a short-term advantage: containing the means to harm the enemy also means protecting against excessive destruction. If we use excessive, chemical, biological weapons because we hope to win the war more quickly by such radical means, perhaps we agree with that when we are in our solicist perspective and say that we will break the ‘enemy’s kidneys’. But then the reflection comes up very quickly and we agree that if we do, maybe we will get a military advantage, but the opponent also exists and he will also use such means. Is it worth it? The States conclude that some practices are not sufficiently advantageous to maintain reciprocity. Fear of reciprocity from the opponent pushes them to seek limitations that will be respected at least as long as the opponent does not violate these standards. Reciprocity is therefore a powerful lever that explains the advantage and interest in IHL rules because the goal is to win the war and for that to happen, destruction must be contained. You don’t win anything if you’re completely destroyed. When you enter an armed conflict, you want to impose your point of view on someone else, so you want to emerge victorious, which means improving your position compared to what it was before. If you come out of the war completely destroyed, even as a winner, you are a loser.
In addition, in the long term, the interest of the belligerents is clearly the return to a peace that can be lasting. The military knows this, politicians sometimes forget it, excesses in war, cruelties, violations of the law leave a heavy slate in the psychology of peoples and it is difficult to return to a lasting peace between States where the past is heavy. This is one of the major problems of the Israeli-Palestinian conflict.
Since we want to return to peace when we are at war, the military knows that we must contain ourselves. The Americans have long used the term ‘we must also win the heart of the people’ for this purpose. It is nothing else; if we exacerbate hostility against ourselves through violations of the law, not only will the adversary resist even more and more fiercely and impose heavier losses, but also the return to peace will be fraught with obstacles and therefore we do not win this war as easily as we wish to win.
The third reason for having humanitarian law beyond reciprocity and a good return to peace is quite simply that the military branch of the state, the armies may ask for it, it may seem singular, but Professor Kolb has experienced relatively often that what the military hates most is when, as a lawyer, he is told that the law is not clear. This discourages the soldier because he is accustomed by training to having clear answers and reliable answers. So he also doesn’t like being told that there are no rules until he is told that the rule is unclear. It is therefore a request that comes from the military forces on the ground, especially since international or national courts are much more involved in the prosecution of war crimes. We are always afraid of being already with one leg in prison if we do things that are not in accordance with the law and we ask the lawyer what the situation is. Professor Kolb’s experience has always been that there is a demand for rules even where there are none. We almost have to invent rules because they are fond of them and want them.
It is therefore quite interesting to see that some political parties may think that the best thing is to have no international rules so that the State remains free to do what it wants. It is quite interesting to contrast this with a whole series of branches of the state such as the military branch where one might think that the latter really wants to be free, in a case of armed conflict where the survival of the state is at stake, is it not worth having your hands free. However, apparently not always. This old idea of discipline and the fact that armed conflict is fought according to rules may come up again.
The effectiveness of a law of armed conflict is not a legal issue. The effectiveness of the law of armed conflict is the question of whether it has a real impact on the ground. Generally, there are violations, and there is also compliance with the rule. What is it more in detail?
What we have is, on the one hand, a considerable effort by the military forces to comply with legal requirements, an effort that has been growing in recent years. But there are already some striking old examples. A good example of such a long-standing trend is the treatment of prisoners of war by the Wehrmacht during the Second World War. If there is one State that is not very sympathetic, that has little regard for international law and international humanitarian law, it was obviously Nazi Germany. Now, what do we see? Let us take Marcel Junot’s book, which visited these camps in Germany and wrote a book entitled Le troisième combattant, in which he recounts what he saw in the various theatres of war in which he was and including this one. What do we see? It can be seen that the Wehrmacht treated British prisoners of war in a more than fair manner. The great complaint of the British in German POW camps visited by Junot was that there were not enough showers to take regular showers. On the other hand, Russian prisoners of war, Marcel Junot was first denied access to these camps, but through relations, he obtained the right to enter them. His description of it is too cruel. There is an absolutely enormous difference in treatment in both cases. It would probably be explained politically by the fact that the British were seen as an airborne civilized nation and that the Russians and Slavs were seen as sub-humans who had to be cleaned up. But there is more to it than that, because in the German Wehrmacht, there were also people who respected regulations and laws without necessarily being ideologues, and for these people, apparently this was the case with the camp commander, it was simply a question of the applicability of the 1929 Geneva Convention. The Wehrmacht argued that in relation to the British, it was bound by the 1929 Convention. Germany was not bound by the 1929 Convention with Russia because Russia had not ratified, so Russian prisoners of war could be treated differently, on the other hand, customary law was not at the forefront at the time.
For a whole series of people, it made a difference and it is proof of that today as well. Let us look today in modern Western armies at the place of the legal adviser. There is no longer a single Western army that does not have a host of legal advisors, including the American army. If we take the operation in Libya in 2011, never has the position of the ‘leg-ad’ been more important, every decision has been taken in consultation and after listening to the legal adviser. Before starting the bombardments in Libya, NATO aircraft were used for weeks to conduct reconnaissance on the ground, refuelling with air, in order to identify military targets called ‘military objectives’. Never before had an operation of this magnitude taken place to identify targets. This shows that the law of armed conflict is taken seriously, something we would not imagine if we read the daily newspapers, which are fond of other things.
The argument presented is an argument in favour of a certain strength of IHL. Considering the weakness of this right, considering the violations that exist and that are sometimes outrageously numerous in non-international armed conflicts. In this case, where violations are much more numerous than respect, is it still worth having an IHL or should we not let it fall at least in this context? Perhaps we could say in a simplified way to keep it in the international armed conflict where it apparently works more or less and erase it in the law of non-international armed conflicts where it has never succeeded in establishing itself. If it were to be abandoned in areas where it is certainly often, if not too often, violated, certain essential functions of the law would be lost. First of all, we can no longer stigmatize these attitudes, it may be possible to stigmatize them morally, but we cannot say that it is possible to do so because it is legal, and not because it is illegal, and therefore any criminal prosecution becomes impossible. The material is released completely into the state of nature. It will probably be better to tell people that they have crossed the line, it will probably be better to sometimes condemn them criminally than to tell ourselves that we are no longer doing anything at all and so be it. It’s a matter of comparison, it’s not sure to be a win-win situation.
Let us also think of something else always in the same context. IHL is a rather special right. It is a right dedicated to the promotion and protection of humanitarian causes. According to a very nice word from Jean Pictet of the ICRC, who said that ‘it is worth having an IHL even if it is already used to protect a person or save a person’s life’, if we look at things from this angle, even in matters where IHL is heavily violated, it can be useful as an instrument to try to influence the course of events and the warring parties. Because, without a doubt, IHL, even in non-international armed conflicts, has served to improve the fate of a whole series of people. It is not always only bad will alone that makes the violation, it is often also the lack of adequate means, the lack of information on the rules and so on. This is an area of action where we can get things done when we go down to the field and make the parties understand that they have a certain interest in certain things.
When the French fought in Algeria, it was classified at the time as a non-international armed conflict, the problem was that the insurgents were fighting hard and were not ready to surrender because they knew that if they surrendered, they would be treated as seditious and sentenced to death if that happened. The ICRC delegate proposed at the time to the French General Salan to tell these people, the insurgents, that those who surrender would be treated as prisoners of war. He suggested that they should not apply IHL, the law of international armed conflict, but rather that they should apply a small part of international armed conflicts in the civil war. The French accepted and had some success with this policy because by guaranteeing the insurgents a prisoner of war status, i.e. rather a treatment of prisoners of war, which does not imply torture and no death sentence, there has been an evolution in the field of surrenders and it is nevertheless an advantage to encourage the adversary to stop fighting rather than to exacerbate in him the will to resist. This is a very small example that shows that even in non-international armed conflicts things can be achieved, sometimes even extraordinary things like the treatment of prisoners of war, no State accepts that in a non-international conflict, but sometimes there is an interest in doing so at the moment and so we still obtain a result that can be quite remarkable.
The effectiveness of IHL is a matter of inventory and nuances. IHL has many different functions; sometimes it is true that it is effective, sometimes it is not effective, even where it is not, it has some functions as we would lose unnecessarily if we repealed it.
Terminology: ‘law of war’, ‘law of armed conflict’, ‘international humanitarian law’, ‘ius in bello’[modifier | modifier le wikicode]
The three branches of armed conflict[modifier | modifier le wikicode]
The law of armed conflict is a branch that formerly opposed international peace law. It regulates belligerent relations and therefore the rules that apply in times of armed conflict between the belligerents. This basically has three sets of rules.
First, there are rules on the protection of certain people who are sometimes called victims of war, it would be better to say potential or current victims of war, because people are also protected before they are harmed. Persons so protected are basically persons who no longer participate in hostilities or who have never participated in them. Those who are now outside the war and who are being protected in this respect, namely the wounded and sick, the shipwrecked also in the theatre of maritime war, prisoners of war, i. e. combatants who are no longer fighting following surrender, for example, and who are now in the control of the opposing party, and finally civilians in any case insofar as they do not participate directly in hostilities. When civilians take a direct part in hostilities, they lose part of their immunity. A civilian is not always someone who does not commit an act of hostility, it is still a journalist’s nonsense to believe it, obviously it is not at all true.
We also sometimes call this branch presented, namely the protection of persons, we also sometimes call it the law of Geneva because it was from the very beginning, since the first convention of 1864, the capital object, the heart, the epicentre of the Geneva conventions. It deals mainly with the protection of people.
Then there is a second set of rules, the rules on the conduct of hostilities. Rules on the means and methods of warfare, in other words, the conduct of hostilities, are also sometimes referred to. This is the hot phase of the conflict when belligerents clash through their armed forces or when armed groups fight against government forces or when dissident army forces fight against loyalist government forces. There are various hypotheses, but in any case, we are still in the heat of the moment, there is effective belligerence and rules on the limitation of means and methods to be adopted. These are typically restrictive rules, excluding certain means, methods or restricting permitted means and methods.
Why ‘average’ and ‘method’? There is no synonymy. We call a ‘means’ everything that is physical, especially weapons. A shell is a means, a bomb is a means. We call everything that is not physical, but rather tactical warfare. Thus, for example, the use of the threat not to take prisoners, i.e. to kill all those who surrender, is a prohibited method and not a prohibited means. Similarly, the use of perfidy is a prohibited method and not a prohibited means. Moreover, the distinction is not of great legal importance, but it should be noted that ‘means’ and ‘method’ are distinguished according to this modality.
We call the rules on the conduct of utilities, we also sometimes call this the Hague law. The reason for this is that in the old Hague Conventions, unlike the Geneva Conventions, the core of the regulations concerned the conduct of hostilities and it is in any case, especially in this respect, that the 1907 Hague Regulations are still important today.
Thirdly, there is also the right of neutrality in the law of armed conflict. The right of neutrality, contrary to what is sometimes thought, is a branch of the law of armed conflict, because neutrality affects the relationship that belligerent States have with non-belligerent States. It is part of the law of armed conflict, not the law of peace. The belligerent must respect certain obligations towards neutral states and neutral states have rights towards belligerents. Since it is the relationship of belligerency that sets out the duties of neutrality, it is logical that this branch should be part of the law of armed conflict. For states that are not permanently neutral, such as Switzerland because Switzerland has a special status, there are international commitments following the Vienna Congress of 1815 that were unilaterally accepted to be permanently neutral, which implies duties in peacetime, such as not being part of NATO. But for the other States, almost all the other States in the world that do not have a permanent neutral status, neutrality only comes to light and exists in the case of an armed conflict. It is only if an international armed conflict takes place somewhere that the question of neutrality arises, otherwise it does not exist. If, by assumption, there were no armed conflict in the world, no State would be neutral and would not be bound by any obligation of neutrality, except permanent staff such as Switzerland.
The three branches of armed conflict are the rules on the protection of persons, the rules on the conduct of hostilities and the rules on neutrality and some more distant matters that are not really important, such as, for example, a branch of the law of armed conflict which, according to the most commonly adopted classification, affects the fate of treaties when there is an armed conflict. Are the treaties that are concluded between States in peacetime still in armed conflict, do they still have to be implemented, are they suspended, are they terminated by the facts of war, this is an issue that the International Law Commission is still dealing with at the moment, but we will not look at it here because it is far too specific.
Terminology[modifier | modifier le wikicode]
Since we have defined our subject matter, we can move on to terminology. How to designate what we have just discovered as the object of IHL. We see that there is a whole series of terms, a multiplicity of terms, almost a cacophony of terms. In any case, there are four that are most commonly used, namely ‘law of war’, ‘law of armed conflict’, ‘humanitarian law’ or even ‘international humanitarian law’, and then ‘jus in bello’.
Let us not get lost here in the meanders of terminology. Therefore, only two remarks.
The first remark is that it is possible to take all these terms as synonymous. It is therefore possible to use each of them to designate the three branches presented. It is a habit that has been taken to use them synonymously even if it is not entirely clean. The term most used today by almost everyone, except a few specialists, by the Security Council, which is very fond of it, by our Department of Foreign Affairs, namely the FDFA, which is a worshipper of it, by the ICRC, which is considered to be its inventor, namely international humanitarian law and which therefore loves it so much that it tries not to see it adulterated, all these actors love international humanitarian law because it is the most sympathetic of all. To say that we make the law of war is old-fashioned and old-fashioned, but it also refers to a very unpleasant object. To say that we are doing humanitarian work is still very good. From then on, this term in the spirit of modernity supplanted the others. We can take that as synonymous because that’s the practice today.
The second remark is that if we wish to be a little more rigorous in terms, which is not always prohibited when we are in the law, but it is not always imposed in this area, at that time, it would be better to reserve the term ‘law of armed conflict’ for all three branches presented as generic terms covering the whole, the three branches, or even the others if there are still minor branches such as treaties in war, all this, the law of armed conflict, or the law of war, and humanitarian law should either be reserved for the law of Geneva, but this is almost unrealistic today, or for the law of Geneva and the law of The Hague. Geneva law, Hague law, humanitarian law, that is fine, the law of armed conflict when it comes to including neutrality and even certain rules of maritime warfare that have nothing to do with humanitarian issues, in particular maritime catches, and therefore the capture of vessels in war, which is more a matter of armed conflict than humanitarian law. If we wish to be rigorous, we should consider that IHL is the most important part of the law of armed conflict, but it does not exhaust its contours. But each time we use these terms we must define them and say in what sense we use them, because there is no absolutely fixed use and the authors, the actors also have either broader or narrower versions.
The third point is the separation of jus in bello and jus ad bellum and the question is linked to the principle of belligerents under the law of war, it is nothing more than a variation on this theme, it is nothing more than a way of implementing the principle of the equality of belligerents under the law of war. It sounds very abstract and should be mentioned.
The separation of ius in bello and ius ad bellum; the principle of the equality of belligerents under the law of war[modifier | modifier le wikicode]
Let’s comment with a pure grammar point. ‘Jus in bello’ and ‘jus ad bellum’ are terms that refer to the law of armed conflict as ‘jus in bello’, and ‘jus ad bellum’ refers to a part of the law of peace, that which deals with legitimate causes, legally recognized causes, legal causes for the use of force. In certain circumstances, States may use force, the whole branch and when force may be used, and therefore the whole branch of peacekeeping is referred to as ‘jus ad bello’.
The grammar point is therefore as follows. It should be noted that we say ‘jus in bello’ and that we say ‘jus ad bellum’. The difference for latinists is clear, because ‘in’ governs the ablative, ‘bello’ is ablative, and ‘ad’ governs the accusative, therefore ‘um’ which is the accusative. All this is of mediocre importance, it is true, but since these terms are used very often, it is very embarrassing to make mistakes and say ‘jus ad bello’, it is very incompetent. If ever, it is better to use the terms ‘peacekeeping’ and ‘law of armed conflict’.
First, why is the equality of belligerents before the law of war so important and what do we already mean by ‘equality of belligerents’ before the law of war? The question relates to the question of the application of the rules of the law of armed conflict and the great principle of the law of armed conflict, the irremovable dogma of the law of armed conflict, the first proposal, the axiom with which matter survives or disables, is that each belligerent applies the same rules because he is bound by the same rules. Reciprocity therefore perfect. Limitations on the conduct of hostilities apply equally to all belligerents provided they have ratified a convention if it is to be applicable. This is a very basic matter of treaty law. Without this principle, the law of armed conflict would not be viable for a variety of reasons. The most obvious is that without reciprocity, respect for the law would collapse, no belligerent would accept to be bound by rules that other parties do not respect and that it is not bound by the law. It is therefore quite obvious that if the law is not applied as well, the party who is the victim of an excessive practice is immediately given the reason to adopt the same excessive practice and therefore we begin to spiral downwards, towards what we call total war, that is, unlimited war. If this were the case, it would still be unfortunate, because it would mean that there would no longer be any IHL that would work in the end, that total war would bring exactly what States do not want, namely disproportionate destruction, excessive destruction to the detriment, first of all, already, of protected persons.
It is possible to treat prisoners of war badly, to kill them in certain circumstances, but we are off to a bad start here. Because obviously, from one person to another, from generalizations to generalizations, from reactions to reactions, have ended with barbarism. This is why it is essential to maintain this equality in the application of the law of war. Each party must apply equally.
This may seem trivial. Each of the parties is bound by rules that it has accepted in conventions, each of the parties to the conflict is bound by universal customary rules that apply universally. The problem is that this is not at all commonplace, because in history we have always had trends, always and again recently, we have had them now, during the United States wars in Afghanistan or Iraq, there was exactly the same argument again and it came out in the 1950s in another context and even before that in another context against Hitler in particular. What is the difficult point here? It is quite simply that there are situations in which a belligerent feels in possession of a just cause of war. The simplest example is that of the aggressed and the aggressor. It is possible to vary, by saying that one is the civilized state and designating the other as a barbaric terrorist. It’s the same theme, but with a variation. What we end up with if we think about this argument to its final point is that these belligerents do not simply say that he is the good and the other Hitler, but they say that as one defends a just cause, then he must still have more freedoms also in bello to defend himself. It is not normal for the ‘bad guy’ and the ‘good guy’ to be bound by the same rules because it is playing into the hands of the ‘bad guy’. It would be normal for the ‘good’ one to have a few more latitudes in order to defend civilization, to defend the aggressor against the aggressor, and so on.
The argument is simply an argument to reduce or erase the equality of the belligerents before the law of war. The key point of the law of armed conflict is to deny such a distinction and to continue to say that the rules apply equally to everyone, whether they are ‘aggressors’ or ‘aggressed’, whether they are ‘good’ or ‘bad’. Not all the rules, it is true. In peace law, a distinction is made between the aggressor and the aggressed, between the ‘good’ and the ‘bad’. There are sanctions against the aggressor, there are United Nations sanctions, but there is still responsibility, all this is a given. The whole law of peace is based on discrimination between those who violate the law and those who do not in this example. But not the law of war, not the law of armed conflict. There is an island here where this principle of distinction between the belligerents, of discrimination according to the justice of the case, does not extend. The whole law of peace does, when we get to the last reduction against barbarism, which is the law of armed conflict, no. This is the reason for the separation of jus in bello and jus ad bellum because jus ad bellum are the causes of wars, the legitimate causes of war. That is exactly what it means to know who the aggressor is and who the aggressor is. The jus ad bellum is based on this distinction, we leave it to him, it is legitimate in this context. But what they say, separation between the two.
This distinction, which is made in the jus ad bellum, remains in the jus as bellum, cannot be translated into the jus in bello or equality between the belligerents must remain absolutely necessary.
Everyone is the aggressed one, always. No State claims to be the aggressor. For example, the Security Council never says who the aggressor is and who the aggressor is, it takes action under Chapter VII. Therefore, if we accepted a system of distinction based on who is good and who is bad, the result would be that everyone would simply claim to be good and take liberties with regard to the law of armed conflict. If we want to have a law of armed conflict, we cannot allow that.
That is what it is all about, the causes of war, the justice of the cause of war has no impact on the law of armed conflict, the rules in the law of armed conflict must also be applied. Politically, this is very difficult to make understood sometimes. As for terrorism, moreover, we must bear in mind that the terrorist phenomenon is not subject to the law of armed conflict, to a very large extent it is not because terrorists are not belligerents in any case, so we are not in the field of IHL, we do not have to apply any equality to them, they are quite simply criminals. The problem arises when there is an armed group acting as a belligerent or a government that is allied with such a group and these groups act as a belligerent and there is a real armed conflict. With regard to Afghanistan and the United States, Convention III applied to persons captured on the battlefield during the battle and therefore Guantánamo detentions were not in conformity. For all the others who have been captured somewhere in the world, trafficked here and there to deliver them to the Americans, all of them are outside the law of armed conflict because they were not captured during an armed conflict on a battlefield.
Therefore, the principle of the equality of belligerents applies only in the context of armed conflicts and terrorism is a phenomenon that goes much further than armed conflict.