Non Military Citizen's actions towards the enemy in the time of war

Question

What are the laws around a non-military citizen taking action during the time of war? If that citizen were to support the enemy, would that be seen as a crime? What if the citizen were to attack the enemy with the consent of the military?

Answer 1

Laws and Customs of War (popularly the Geneva conventions, but there are other conventions that are not Geneva that make up the body of International Laws on war. Geneva III (there are four separate conventions) denotes two category classes of person in war (Combatant vs. Non-Combatant and Uniformed vs. Non-Uniformed personnel. This distinction exists because most militaries have service components that are uniformed, but are non-combatant, such as medics and chaplains.

To be considedered a protected person under Geneva III you must meet all four requirements:

That of being commanded by a person responsible for his subordinates.

That of having a fixed distinctive sign recognizable at a distance.

That of carrying arms openly.

That of conducting their operations in accordance with the laws and customs of war.

This will normally cover all military actors not actively committing a war crime against an enemy combatant. It also will count for uniformed non-combatants, mercenary units that operate as part of the regular troops (i.e. the French Foreign Legion), and partisan resistance so long as they operate under all conditions. When meeting these four requirements, the person will qualify for such benefits afforded to a POW (including food (when available, red cross contact, protections against torture, protections against capital punishment, protection of the right to escape... if you surrender peacefully after running from a POW camp, they can't shoot you... while you run, it's open season, and protections against forced labor if you are an officer or chaplain or medic if the labor is not that of their role (religious leader and medical) and they must administer their duties without reservation to non-nationals.).

It is also legal to disguise yourself as the enemy or neutral nation so long as you do not take hostile action without first showing your true colors (the term dates from wooden mast ships, which would often sail under a flag of another nation. This was lawful so long as their true flag colors were flown prior to attack.) and you are not using protected symbols while doing so (you cannot fly the White Flag or the Flag of the U.N. or Red Cross/Crescent/Diamond. You're not allowed to fire on these things and if these things fire on you, they lose protection of the Laws and Customs.).

To answer your question, we have three scenarios: 1.) You, a citizen of the nation of Utopia, aid the military effort of enemy combatant nation Distopia. 2.) You, a citizen of the nation of Utopia, act as part of a partisan resistance movement against occupying Distopian forces in Utopia. 3.) A similar scenario to 2, but this time, you are ordered to attack by the Utopian military or Government in exile.

For scenarios one and two, you have no combatant protection. If the government that you are acting against finds you, you are not subject to any war crimes... but also not protections afforded to civilians. In scenario one, you are subject to all laws that nation has relevant to the nature of your crime and punishment (including treachery and espionage). These punishments may include torture and execution. In scenario two, you are subject to the laws of the occupying military force, though they generally will not use torture as Laws and Customs prohibit it's use for anyone regardless of combatant and uniformed status.

Specific to scenario 2, the occupation force is supposed to treat civilians as off limits and that laws may only cause physical harm if they are being punished directly for crimes directly taken by them (you can't order 100 civillians shot for every one occupier shot... you can shoot the guy who shot your guy though). These protections are not hard rules. If you're working near a military target or a target that is enabling the war machine, you're not as safe (i.e. Your house is by a base or you work at a tank factory or the military has a missile launcher on the roof of your hospital, it isn't a war crime if a bomb kills a nearby civillain. In fact, the last example is an explicit war crime of side of the guys who put missiles on a hospital (using protected symbols, arming medics, and perfidy (i.e. playing dead in order to attack belligerents or faking a surrender) all are very serious offenses.). Targeting civillians because they are there, is, a war crime. Additionally, while your life and limb are protected, the occupying forces can take property of yours they may need to aid in their war effort and destroy any property that could be used against them. General Sherman's March to the Sea is considered a cruel example of this, but is perfectly legal (most of the Civil War was free of war crimes despite the first conventions not really applying at the time. You also cannot be drafted to fight for the Dystopian Military though. You can't force civilians (or POWs for that matter) into any work that is either dangerous or directly helps the war effort or chemical production period (many of the conventions were in response to the use of chemical warfare in WWI, so they get mentioned frequently) but you can put them to indirect work. Farm labor was common on both sides as the labor often removed them from near front lines as viable farms were far away.

Scenario 3.) is effectively drafting you into the military and as such, Utopia will either give you a uniform and a briefing on the Laws and Customs before sending you on mission, or make you very, very much aware that if you do this, they will disavow any knowledge of your actions and that whatever happens if captured is a risk you've accepted.

The reason for this is actually very simple. While there are a bunch of NGO bodies that will act neutrally and observe both sides of a war effort for any War Crimes, the truth about enforcement is that for duration of the conflict, Inter arma enim silent leges (Latin - "In times of war, the law falls silent") is in full effect and most war crimes prosecutions are done after the fact and by the winners of a conflict against the losers (The Allies in World War II were not held to answer for possible war crimes against the Axis... and most major participating nations have something war-crime in nature). The Laws and Customs of Warfare are enforced by nations on their own side because of the Golden Rule: Do unto others as you would have done unto you. This is codified in the Geneva Conventions in that forth requirement for protection. Nations will abide by them because while they may win the war by breaking war crime violations but if you don't follow them when engaging your enemies, they won't follow them when engaging you.

This really is the only historical enforcement action that mattered, as we saw in section four, the conventions do not apply to you if you and your own were violating them first. For historical examples, the Soviet Front saw frequent violations of conventiosn regarding when combatants became non-combatants for the purposes of war crime coverage. Usually, it's death, wounded, surrender (hence why faking these is very very wrong), or other inability to continue the fight by other means (usually, this is broadly used to cover when bailing from vehicles. You are not allowed to shoot a tank crew when they leave the tank as it burns, nor sailors when in a life boats (if you sunk all the ships, even leaving them can be a war crime unless you're a submarine for may logistical reasons), nor people jumping out of a plane excepting paratroopers (airplane crews who aren't intending to leave the plane while flying are given white parachutes as opposed to any non-white color given to paratroopers.). During World War II, the Soviet Union fighter pilots ignored the rule about shooting the bailing pilots and Nazis returned in kind and started shooting Soviet jumpers (by the way, doing this in the first place is avoided, unless you want every enemy pilot in the air deciding you're the priority target). Suffice to say, the Soviets won, so they didn't get charged... but neither did the Nazis because the Soviet pilots killed in this way were no longer afforded the protections.

Just to end this element with a more heroic example, remember that the U.S. Civil War was largely conducted in compliance to all conventions, despite none really existing at the time. The most well document examples of "War Crimes" during this were both sides POW camps. Both sides were rather awful though the Confederacy gets an initial pass on account of their economy falling apart during the war (nothing in the convetions say you have to provide better care at the expense of your own military and civilian needs. If you can't feed your people, you're not expected to feed your POWs well either. Thems the Breaks). Ultimately, both sides had rampart overcrowding problems that were brought about by what would ordinarily be a war crime. Specifically, the Confederacy treated it's Union POWs differently based on race (surprising absolutely no one with a basic understanding of the war) and often outright killed surrendering black Union Soldiers (Geneva III makes killing surrendered troops a violation. These types of illegal orders are called "No Quarters" orders. If a combatant surrenders, they are now protected by POW rules.). When the Union learned of this, they suspended prisoner release (back then, it was largely on an honor system, POWs would be released after some time, and so long as they were unarmed until returning to their side of the front, they were allowed to go back without supervision. Both sides did this and most of the men released in this manner abide by the rule). And of course, the Confederacy stopped releasing the Union Troops (they would only release the white troops. The black troops were forced back into slavery.). This created a drastic overcrowding situation that, had the Laws and Conventions been in play, would have protected the Union from violating because they were responding in kind to Confederacy violation of black soldier's rights under Geneva III.

All this is to say that, in so far as scenario 3, most nations are not going to send civilians into combat as this is a war crime and instituting a draft of conscription measure usually eliminates the problem of the civilian not receiving protections from the conventions and the government being accused of a war crime for this action (and if you're that desperate, you're likely about to be held to account in a War Crimes Tribunal anyway.). So the government will be very certain you are given a uniform, specific orders, a weapon which you must carry while performing those orders, and a crash court in War Crimes protections. If they don't do that, then you're operating under Option 2 (or option one). There is a reason why most Spies in movies are told that if caught, the government would disavow all knowledge of you. Because they won't admit to giving you the orders to protect them from a war crimes tribunal. Accepting to do these missions means you're at the mercy of civilian law of the nation you're being ordered to attack.