Section B. Incorporation of paramilitary or armed law enforcement agencies into armed forces
Additional Protocol I
Article 43(3) of the 1977 Additional Protocol I provides: “Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces, it shall so notify the other Parties to the conflict.”
Argentina’s Law of War Manual (1989) provides: “Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces, it shall so notify the other Parties to the conflict.”
Canada’s LOAC Manual (1999) states: “If a party to a conflict incorporates paramilitary or armed law enforcement agencies into its armed forces, it must inform other parties to the conflict of this fact. These forces are then considered lawful combatants.”
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”:
If a party to a conflict incorporates paramilitary or armed law enforcement agencies into its armed forces, it must inform other parties to the conflict of this fact. These forces are then considered lawful combatants.
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
I.3. Paramilitary forces and police forces
When a party to a conflict decides to incorporate within its armed forces a paramilitary force or another armed corps responsible for maintenance of order (police), it must inform the adversary. In our country the paramilitary forces consist of customs officers, water and forest agents, and the national police. They are entitled to participate directly in hostilities and they must naturally completely respect the rules established for combatants. In case of capture, their members are entitled to the same protection as prisoners of war.
Germany’s Military Manual (1992) states:
Whenever a party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall notify the other parties to the conflict. In the Federal Republic of Germany the Federal Border Commands including their Border Guard formations and units as well as the Federal Border Guard School shall become part of the armed forces upon the outbreak of an armed conflict.
The Military Manual (1993) of the Netherlands states: “A State may incorporate a paramilitary organization or armed agency charged with police functions into its armed forces. The other parties to a conflict have to be notified thereof.”
The Military Manual (2005) of the Netherlands states:
0303. Armed forces
The armed forces of a party to a conflict consist of all organized armed forces, groups and units which are:
- under one command; and
- subject to an internal disciplinary system.
This not only applies to the armed forces of States, but also to members of resistance and liberation armies. The command need not consist of one person, but must be responsible for subordinates’ behaviour towards the party to the conflict (generally the State). The internal disciplinary system must ensure obedience to the rules of the humanitarian law of war.
Before … AP I [1977 Additional Protocol I] came into force, it was important to clarify the position of resistance fighters. Thus, in September 1944, the recognized armed resistance groups, the Orde Dienst (Order of Service), the Knokploegen (Assault Groups) and the Raad van Verzet (Council of Resistance) were grouped together into the Binnenlandse Strijdkrachten (Inland Armed Forces). Members were given the status of soldiers of the Royal Dutch Army.
In the same month, the storm troops established in Limburg and North Brabant also became members of the Inland Armed Forces. Parties to AP I no longer have formally to recognize resistance groups.
0311. The Royal Netherlands Marechaussee
A State may include a paramilitary organization or armed service entrusted with political responsibilities in its armed forces. The other parties to a conflict must be informed of this. In the Netherlands, this provision is used for civilian surveillance personnel of the armed forces (see below). Nothing like this applies to the Royal Marechaussee (frontier guards). It forms part of the Dutch armed forces, although it performs many tasks for ministries other than that of Defence. Members of this force therefore usually have combatant status.
0314. Civilian surveillance personnel
The Netherlands identifies its Navy Security Corps (Marine Beveiligingskorps) and the civilian surveillance of the Royal Dutch Army as paramilitary organizations, which also form part of the armed forces during an armed conflict. Such personnel are recognizable because they are uniformed and armed. The Swiss Federal Council has been notified of this.
0315. It must be remembered that most countries’ armed forces are composed differently from those of the Netherlands. They may fall into categories different from similar groups in the Netherlands and have different status under the humanitarian law of war.
New Zealand’s Military Manual (1992) states: “If a Party to a conflict incorporates paramilitary or armed law enforcement agencies into its armed forces it must inform other parties to the conflict of this fact, so that such forces may be acknowledged as lawful combatants.”
The manual provides two examples of paramilitary agencies incorporated into the armed forces of a State, namely “the Special Auxiliary Force attached to Bishop Muzorewa’s United African National Congress in Zimbabwe and which was embodied into the national army after the Bishop became Prime Minister [and] India’s Border Security Force in Assam”.
The manual also provides an example of an armed law enforcement agency incorporated into the armed forces of a State, namely:
At the time of the outbreak of World War II, the Burma Frontier Force was serving as a police force under authority of the Burma Frontier Force Act; after the fall of Burma, the Burmese Government in exile in Simla, India, passed legislation making the Force part of the Burmese Army and subject to the Burma Army Act.
Spain’s LOAC Manual (1996) states that members of the Guardia Civil are lawful combatants.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states: “The civilian police are not part of the belligerent forces, as long as they do not take part in the fighting and are not integrated into the armed forces.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
To avoid confusion, the law requires that “whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict”.
The Military Service Law of the People’s Republic of China (1984), as amended in 1998, states: “The armed forces of the People’s Republic of China shall be composed of the Chinese People’s Liberation Army, the Chinese People’s Armed Police Force and the Militia.”
The Report on the Practice of Germany (1997) notes that from 1965 to 1994, German border guards were granted the status of combatants. In 1994, the German Parliament adopted a law that changed the status of the border guards. The reason for this change was that, as combatants, these guards could become legitimate enemy targets and they could involve local police forces as targets when operating in joint action. In addition, even civilian objects protected by the police might become targets.
The Decree on the Constitution of the Integrated National Police (1975) of the Philippines provides that the Philippine Constabulary, responsible as the nucleus of the Integrated National Police for police, jail and fire services, “shall remain and continue to be a major service of the Armed Forces”. Within this framework, the Integrated National Police “shall function directly under the Department of National Defense”.
The Philippines’ Republic Act No. 6975 (1990) provides:
Sec. 2. Declarations of Policy. – It is hereby declared to be the policy of the State to promote peace and order, ensure public safety and further strengthen local government capability aimed towards the effective delivery of the basic services to the citizenry through the establishment of a highly efficient and competent police force that is national in scope and civilian in character …
The police force shall be organized, trained and equipped primarily for the performance of police functions. Its national scope and civilian character shall be paramount. No element of the police force shall be military nor shall any position thereof be occupied by active members of the Armed Forces of the Philippines.
Sec. 12. Relationship of the Department with the Department of National Defense. – During a period of twenty-four (24) months from the effectivity of this Act, the Armed Forces of the Philippines (AFP) shall continue its present role of preserving the internal and external security of the State: Provided, That said period may be extended by the President, if he finds it justifiable, for another period not exceeding twenty-four (24) months, after which the Department shall automatically take over from the AFP the primary role of preserving internal security, leaving to the AFP its primary role of preserving external security. However, even after the Department has assumed primary responsibility on matters affecting internal security, including the suppression of insurgency, and there are serious threats to national security and public order, such as where insurgents have gained considerable foothold in the community thereby necessitating the employment of bigger tactical forces and the utilization of higher caliber armaments and better armoured vehicles, the President may, upon recommendation of the peace and order council, call upon the Armed Forces of the Philippines to assume the primary role and the Philippine National Police (PNP) to play the supportive role in the area concerned.
In times of national emergency, all elements of the PNP, the Bureau of Fire Protection, and the Bureau of Jail Management and Penology shall, upon direction of the President, assist the Armed Forces of the Philippines in meeting the national emergency.
The Philippines’ Republic Act No. 8551 (1998) provides:
Sec. 2. Declaration of Policy and Principles. – It is hereby declared the policy of the State to establish a highly efficient and competent police force which is national in scope and civilian in character administered and controlled by a national police commission.
Sec. 3. Section 12 of Republic Act No. 6975 is hereby amended to read as follows:
Sec. 12. Relationship of the Department with the Department of National Defense. – The Department of the Interior and Local Government shall be relieved of the primary responsibility on matters involving the suppression of insurgency and other serious threats to national security. The Philippine National Police shall, through information gathering and performance of its ordinary police functions, support the Armed Forces of the Philippines on matters involving suppression of insurgency, except in cases where the President shall call on the PNP to support the AFP in combat operations.
In times of national emergency, the PNP, the Bureau of Fire Protection, and the Bureau of Jail Management and Penology shall, upon the direction of the President, assist the armed forces in meeting the national emergency.
The Philippines’ Administrative Order No. 18 (2001) states:
, in view of Section 6 of Executive Order No. 220 and pursuant to a Memorandum of Undertaking executed by and between representatives of the Government and the Cordillera People’s Liberation Army on August 11, 1999, there is a need for the immediate integration of qualified members of the Cordillera People’s Liberation Army into the Armed Forces of the Philippines.
Pursuant to Spain’s Military Criminal Code (1985), the Guardia Civil is an armed military body that exclusively falls under the responsibility of the Ministry of Defence, in times of siege warfare or when called upon to carry out missions of a military nature.
The Report on the Practice of Zimbabwe (1998) asserts that the incorporation of Article 43 of the 1977 Additional Protocol I into national legislation by the 1981 Geneva Conventions Act as amended “is evidence of [Zimbabwe’s] view that [it represents] customary international law”.
The Report on the Practice of India refers to a decision of the Supreme Court which did not consider, for administrative purposes, civilian clerks of a special police unit (the Indo-Tibetan Border Force, which is itself part of the armed forces of India) as members of the armed forces. According to the report, however, members of this force might be treated as combatants for the purpose of the application of IHL.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
Upon ratification of the 1977 Additional Protocol I, Belgium notified the High Contracting Parties of the duties assigned to the Belgian Gendarmerie
(constabulary) in time of armed conflict. Belgium considered that this notification fully satisfied any and all requirements of Article 43 pertaining to the Gendarmerie
. It informed the High Contracting Parties that the Gendarmerie
was formed to maintain law and order and was, according to national legislation, a police force which was part of the armed forces within the meaning of Article 43 of the 1977 Additional Protocol I. Consequently, members of the Gendarmerie
had the status of combatant in time of international armed conflict.
An Act of Parliament of 18 July 1991 has, however, put an end to this situation as it has disconnected the Gendarmerie
from the armed forces.
Upon ratification of the 1977 Additional Protocol I, France informed the States party to the 1977 Additional Protocol I that its armed forces permanently include the Gendarmerie
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
Whereas members of a civilian police force that is solely
a civilian police force, who have no combat function are not considered combatants under the Law of Armed Conflict, international law recognises that this principle does not apply where police are part of the armed forces of a party. In those circumstances, they may constitute a legitimate military target. In other words, the status of the Palestinian “police” under the Law of Armed Conflict depends on whether they fulfilled combat functions in the course of the armed conflict. The evidence thus far is compelling that they are.
[footnote in original omitted; emphasis in original]
Republic of Korea
The Report on the Practice of the Republic of Korea affirms the customary nature of Article 43 of the 1977 Additional Protocol I.
Syrian Arab Republic
On the basis of a statement by the Syrian Minister of Foreign Affairs before the UN General Assembly in 1997, the Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers that the rule contained in Article 43(3) of the 1977 Additional Protocol I is part of customary international law.
Special Court for Sierra Leone
In the Sesay case before the SCSL, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, and the accused Gbao, senior commander in the RUF and AFRC/RUF forces, were each charged with eight counts of crimes against humanity, eight counts of war crimes, and two counts of other serious violations of international humanitarian law. In its judgment in the case in 2009, the Trial Chamber, in considering whether State law enforcement agencies would be categorized as directly participating in hostilities, stated:
87. The armed law enforcement agencies of a State are generally mandated only to protect and maintain the internal order of the State. Thus, as a general presumption and in the execution of their typical law enforcement duties, such forces are considered to be civilians for the purposes of international humanitarian law. This same presumption will not exist for military police or gendarmerie that operate under the control of the military.
88. The Chamber is of the opinion that the status of police officers in a time of armed conflict must be determined on a case-by-case basis in light of an analysis of the particular facts. A civilian police force, for instance, may be incorporated into the armed forces, which will cause the police to be classified as combatants instead of civilians. This incorporation may occur de lege
, by way of a formal Act, or de facto
[footnotes in original omitted]