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.
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]