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  • Resident T does not hold any official position in an armed group
  • An Army or a militia from a foreign country not recognized by T's country, enters T's neighborhood.
  • T attempts to defend his neighborhood and is subsequently killed.

Was T a civilian victim?

If no, does the mere fact of being clearly armed loses him that status? or does he have to shoot back?

Trish
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Ona
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  • Could be a grey area - after all, if the foreign army were acting lawfully, the civilian neighbourhood shouldn't need armed defence. Sadly, such an idealistic situation can't be assumed in a real invasion. – Toby Speight Feb 02 '24 at 10:39

2 Answers2

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T became a combatant by spontaneously picking up arms

For simplicity, I will call T Ted from now on.

Assuming that the assailants of the armed forces were following the rules of law, Ted became a lawful combatant who would be protected as a PoW if captured by picking up arms openly and engaging in hostilities with them. That is regulated in Art. 4 A (6), the Third Geneva Convention (Geneva III).

Article 4 - Prisoners of war A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

[...]

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Because he had no time to join a militia or volunteer corps (Art 4A(1&2)) and get a uniform or distinguishing mark, he is not one of those. But he was picking up arms spontaneously and became a lawful combatant under Art.4 A(6) of Geneva III. As long as he carried his arms openly, he was allowed to fight as he was, and would be required to be given PoW status. However, as Ted fell he stayed a combatant, even in death. This is verified in the Additional Protocol I to the Geneva convention, Art. 50:

Article 50 - Definition of civilians and civilian population

  1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.

Because he picked up arms spontaneously and resisted under Art.4(6), he is not considered a civilian but a combatant under the rules of war. As such, the fact that Ted died does not become murder or manslaughter but he is a fallen (legal) combatant.

Trish
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  • "Assuming that the assailants of the armed forces were following the rules of law" How important is this caveat? – Ona Feb 02 '24 at 14:16
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    @Ona unimportant for if Ted is a combatant, but important for the assailant's status as PoW (and the likelihood of them following the rules in the first place) – Trish Feb 02 '24 at 15:03
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T is an enemy combatant.

According to the Practical Guide to Humanitarian Law, civilians who directly participate in hostilities temporarily lose their protection. This means that they can be lawfully attacked during this period.

IKnowNothing
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    Would the answer be different if T were only defending himself and his family against harm, and not trying to otherwise hinder the advancing army? – Someone Feb 01 '24 at 17:52
  • Let us continue this discussion in chat. – Trish Feb 01 '24 at 18:56
  • @Someone Kind of sounds like the same thing to me. – DKNguyen Feb 02 '24 at 02:34
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    @DKNguyen I don't think they're necessarily the same; shooting at someone because you they're trying to kill you is quite different from shooting at them because they're trying to take over your government. – Someone Feb 02 '24 at 02:53
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    @Someone That's semantics. How do you expect the advancing army to tell the difference? For that matter, how do you expect the civilian to communicate that they aren't a defence force? Ultimately the actions of the advancing army and the civilian are identical. It'd probably be possible in a world with melee weapons where you can communicate and stay beyond charging and weapon range, but not with guns. – DKNguyen Feb 02 '24 at 03:05
  • @DKNguyen if the civilian talks at all before firing, that could make it quite clear. If T says, "You're not taking over my country as long as I have any say in it!" and fires, he's quite clearly acting as a combatant. If he says, "I'm a civilian! Don't shoot!" then fires when an enemy soldier continues threatening him, he's defending himself. – Someone Feb 02 '24 at 03:05
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    @Someone You don't really expect such a fantasy situation to play out do you? You're assuming a civilian is able to approach close enough holding a gun to actually say that, and to actually be heard while holding said gun. Guns have a longer range than words, and words also need to be believed. – DKNguyen Feb 02 '24 at 03:06
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    @DKNguyen since this is a hypothetical, let's assume that America is the country being invaded. It's quite common here for civilians to carry guns for personal self-defense, so the fact that someone has a gun doesn't make them a combatant. The gun could be concealed, so the soldier wouldn't know he was armed until he drew the gun to fire. And I don't see anything indicating how far apart T is from the enemy soldier? He could be in his house, with an advancing soldier at his door. – Someone Feb 02 '24 at 03:10
  • @Someone "the fact that someone has a gun doesn't make them a combatant" That's a lot of faith to have as an invading soldier. Another complication is what happens when the soldier orders the civilian to put their hands behind their head a kneel and the civilian refuses? If the civilian has a concealed weapon and is defending their home, they are probably going to refuse because that defeats the purpose. How is the soldier supposed to interpret things then? If they do comply then the gun was pointless to begin with, and is just going to make things go downhill when it is found. – DKNguyen Feb 02 '24 at 03:11
  • @DKNguyen If you go to Texas, where it's common for civilians to have guns, then it's unreasonable to assume anyone with a gun is a combatant. – Barmar Feb 02 '24 at 03:16
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    @Barmar You talk about that as (presumably) an American civilian and (presumably) gun-loving bias. But invading soldiers aren't going to care very much about that, and rightly so. Their lives are at stake. Turn the tables around, would you expect an American soldier to reasonably entertain that notion when entering a foreign country where civilians have lots of guns? – DKNguyen Feb 02 '24 at 03:16
  • @DKNguyen Well, too bad. They shouldn't have invaded in the first place. – Barmar Feb 02 '24 at 03:17
  • You're essentially saying that it's OK to invade a country where gun ownership is common, because you can treat all the gun owners as combatants and it's not a violation of Geneva to shoot them. – Barmar Feb 02 '24 at 03:18
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    @Barmar I'm not saying its okay. Don't put words in my mouth, but how are you supposed to do any of what you say in practice? It's basically unenforceable. Imagine if it was American soldiers entering a country where civilians had lots of guns. You wouldn't expect them to entertain that notion very much either. – DKNguyen Feb 02 '24 at 03:19
  • @Barmar So you're telling me that the locals could be walking around American soldiers openly holding rifles and they wouldn't have guns drawn on them? The scenario being presented is also quite a bit more tense than that too in that the civilian is warning the soldier that if they advance they will be fired upon. Mind you, that's not a necessarily combat situation either. In a combat situation being openly armed civilian bystander, that just doesn't work at all. – DKNguyen Feb 02 '24 at 03:24
  • @DKNguyen I've never been in combat. But I think that if the weapon were not in a firing position, the soldiers would not automatically draw on them. But if the local appeared to be drawing their weapon, the soldiers would respond in kind. – Barmar Feb 02 '24 at 03:28
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    @Barmar I'm not sure either way. I just did watch an interview with a reporter(?) tagging along with soldiers in a truck. And the reporter asked the driver why everyone was always backing away from them and avoiding them. The driver told him that the soldier up top manning the machine gun was aiming at the civilians (unarmed) and that was why everyone was always backing away. – DKNguyen Feb 02 '24 at 03:30
  • @Barmar I should also mention that the scenario I had in my mind was a little more dicey than your Afghanistan or WW2 fields of Western Europe scenario. I was thinking something like if German soldier encountered a civilian trying to defend their family in Stalingrad. The Soviet citizens were very much just "trying to defend their neighbourhood" there. – DKNguyen Feb 02 '24 at 03:33
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    @DKNguyen I think there's a difference between defending your family and defending your country. If the person is acting just like they would to protect against an armed robber, they should be treated like a civilian acting in self-defense. – Barmar Feb 02 '24 at 03:37
  • @DKNguyen It might not stand up in the ICC, but I like the "if it walks like a duck" test. – Barmar Feb 02 '24 at 03:48
  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – Dale M Feb 02 '24 at 04:00
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    @Barmar The issue clearly is never gun ownership - it's about using that gun. As soon as you pick it up to fire it, you're a combatant. If you don't, you're not. So the whole of Texas doesn't automatically become combatants. – Graham Feb 03 '24 at 10:25