• International humanitarian law applied during the period of armed conflicts
  • Concept, sources and principles of international humanitarian law
  • The difference between international humanitarian law from human rights standards
  • Subjects of International Humanitarian Law
  • The concept and types of armed conflicts in the International Humanitarian Law
  • Legal consequences of the beginning of the war
• Participants of armed conflict
  • Theater of Military Acts of States
  • The concepts of "Armed Forces" and "Combatant" in the International Humanitarian Law
  • Responsibilities of commanders (bosses) in the light of the requirements of international humanitarian law
  • The role of legal advisers in the period of armed conflict
  • Legal position of medical personnel and clergy
  • Application of the norms of international humanitarian law by the internal troops of the Ministry of Internal Affairs of Russia and the internal affairs bodies in the period of armed conflicts
• International legal protection of war victims
  • The concept of "victim of war" in international humanitarian law
  • The legal status of the wounded, sick and faces of the shipwreck. Missing
  • Legal status of prisoners of war
  • The legal status of persons detained or devoid of freedoms for reasons associated with an armed conflict of an internationally international nature
  • Protection of civilians during armed conflict
  • Legal status of journalists
• International legal protection of civil facilities in the period of armed conflicts
  • The concept of a civilian object. Differentiation of civil and military facilities in international humanitarian law
  • Classification of civil facilities in international humanitarian law
  • Protection of cultural values \u200b\u200bin the period of armed conflicts
  • Protection of objects necessary for the survival of the civilian population
  • Protection of installations and structures containing dangerous forces
  • Legal regulation of locality and zones under special protection of international humanitarian law
• Security ambient in the period of armed conflict
  • The concept of international environmental protection
  • Legal regulation of environmental protection during armed conflict
  • International legal measures to combat environmental weapons
• Restriction of warming in the choice of methods and means of warfare
  • Prohibited methods of warfare
  • Prohibited means of warfare
  • Nuclear weapon In the light of the principles and norms of international humanitarian law
• Protection of the interests of neutral states during the period of armed conflict
  • The concept of neutrality
  • Neutrality in the land, marine and air war
• Obligations of States to fulfill the norms of international humanitarian law
  • Measures to fulfill the norms of international humanitarian law
  • Implementation of international humanitarian law in the Commonwealth Independent states
  • Russian legislation in the light of the principles and norms of international humanitarian law
  • Dissemination of international humanitarian law in Russia
• International monitoring of compliance with state obligations under international humanitarian law
  • The concept and principles of international control
  • Implementation of international monitoring of compliance with the norms of international humanitarian law
• Responsibility of states and individuals for violation of the norms of international humanitarian law
  • Legal consequences of the end of the war
  • The concept and basis of the responsibility of states and individuals for violations of the norms of international humanitarian law
  • Political and Material Responsibility of States
  • Criminal liability of individuals for committing international crimes
• International Criminal Court and its role in ensuring the implementation of the norms of international humanitarian law
  • Objectives and principles of the International Criminal Court. Assembly of States - participants of the Rome Statute MUS
  • Crimes falling under the jurisdiction of the International Criminal Court
  • Concept of additional jurisdiction of the International Criminal Court and other jurisdictional foundations
  • Applicable international criminal court
  • Composition and management of the International Criminal Court
  • Investigation, criminal prosecution and legal proceedings on the Roman Statute of the International Criminal Court
  • Practical activities of the International Criminal Court
• The role of the International Committee of the Red Cross in the formation, development and dissemination of international humanitarian law
  • The history of the creation of the International Committee of the Red Cross
  • Powdered role ICRC
  • Activities of the regional delegation of the ICRC in Russia to disseminate knowledge about international humanitarian law
• International Humanitarian Law - Conclusion

The concept and types of armed conflicts in the International Humanitarian Law

As already noted, international humanitarian law applies during the period of armed conflicts. In this regard, the question arises, what is understood under armed conflict? International legal acts do not contain the definitions of the "armed conflict" or "war". At the same time in Art. 2, common to all four Geneva Conventions, it is said that it will "be applied in the case of a declared war or any other armed conflict arising between two or several high Contracting Parties, even if one of them does not recognize the state of war " The content of this article implies that the concept of "armed conflict" is wider than the concept of "war". For example, a border incident with the use of weapons can be attributed to an armed conflict, but it is impossible to call the war, as it is local in nature and does not entail the legal consequences, usually characteristic of war.

War It introduces such an armed clash between states, groups of states or the state and a group of states, the consequence of which is the termination between the warring parties of contracts designed for peaceful relations, a breaking of diplomatic relations, etc., which will be said below. Wars are conducted for a fairly significant period of time, differ in scale and high intensity. In modern international legal acts concerning the regulation of armed clashes, the term "armed conflict" is much more often used than the "war".

In international humanitarian law (judging by the content of Art. 2 and 3, common to the Geneva Conventions of 1949, as well as Art. 1 Additional Protocols I and II to these Conventions) Armed conflicts are divided into two types: international armed conflicts and armed conflicts of non-profit international character.

TO international Armed Conflict relate:

• armed clashes between states (Israel-Arabic armed conflict, conducted from 1967 and to the present; Attack of the United States, England and other states on Iraq in March 2003; Anglo-Argentine War of 1982);
• the struggle of peoples against colonial domination and foreign occupation and against racist regimes in carrying out their right to self-determination in accordance with the UN Charter (Article 1 of P. 4 of Protocol I).

Based on the practice of international relations, interference should be included in the internal armed conflict of the third state in the interests of one of the warring parties, the participation of the UN military forces, as well as the UN peacekeeping forces in the internal armed conflict (in this case, the Council's decision UN security for the use of armed forces).

TO armed conflicts of non-profit armed conflicts occurring on the territory of any state between its armed forces and anti-government armed forces or other armed groups, which, being under the responsible command, carry out such control over the part of this state, which allows them to conduct continuous and agreed hostilities and Apply Protocol II (for example, an armed conflict between the regular troops of Salvador and the front of the National Liberation of the name of the Faraundo Marty (FLFM), which ended in the signing of a peace agreement between opposing parties in 1992); Armed conflicts on post-Soviet space - Pridneprovsky in Moldova, Georgian-Ossetian and Georgian-Abkhaz, etc.). These armed conflicts include civil wars (civil war between the North and South in the United States (1861-1865), civil war in Russia (1918-1920), Spain (1936).

In armed conflicts of an internationally international character, the following international legal acts apply: Art. 3, Total for all four Geneva conventions of 1949, Art. 19 of the Hague Convention on the Protection of Cultural Property of 1954 and the Second Protocol to It 1999, Additional Protocol II of 1977, Protocol II with amendments of 1996 to the Convention on Prohibition or Restrictions on the Application of Specific Ordinary Weapons, which can be considered applied Excessive damage and having indiscriminately, 1980, Roman Statute of the 1998 International Criminal Court

From the application of an additional protocol II, the situation of tensions and riots within the country are excluded: riots, individual and sporadic acts of violence and other acts of the same nature (Article 1, and. 2).

During armed conflicts, the population residing in the territory of the state is divided into two groups: related to the armed forces (armed forces, partisans, etc.) and not related to the armed forces (civilian population). In turn, the MP distinguishes two categories of persons belonging to the armed forces of warring parties: fighting (combatants) and non-disgraced (noncombatants).

Combatants - these are persons who are part of the armed forces of warring parties directly leading martialctions Against the enemy with a weapon in hand. Copying, combatants acquire the status of prisoners of war.

Special protection is acquired by minor combatants. In 2000, the Optional Protocol was adopted to the Convention on the Rights of the Child 1989 regarding the participation of children in armed conflicts. States parties have pledged to take all measures to ensure that the servicemen of their armed forces that have not reached the age of 18 have not taken direct participation in hostilities. When ratifying the protocol in 2008 the Russian Federation made a statement that citizens who have not reached the age of 18 can not be called upon military service in the Armed Forces of the Russian Federation. With them, a contract for the passage of military service cannot be concluded.

Noncombatants - these are persons who are part of the armed forces directly involved in hostilities. These are military correspondents, lawyers, clergy, intentes. Uncombatants can have personal weapons for self-defense. In case of participation in hostilities, they acquire the status of combatants.

In accordance with Geneva Conventions of 1949, Combatants include: Personal Composition of Regular Armed Forces; the militia, volunteer troops, both incoming and not included in the regular armed forces; Personal composition of resistance movements and partisan formations; persons providing assistance to the armed forces, but not accepting participation in hostilities; members of the crews of merchant ships and civilian aircraft that assist in battle; The population, which, when approaching the enemy, took over the weapon if they openly wear weapons and comply with the laws and customs of war.

Partisans and the fighters of national liberation movements are combatants if they: belong to any militaryly organized detachment, headed by a responsible person; worn distinctive signs; Open weapons and comply with the laws and customs of war. In compliance with these conditions, members of the partisan detachments in captivity are captured by combatants.

Scouts - Persons who are part of the armed forces of warring parties who bear military uniforms and penetrating the disposal for the purpose of collecting information about him for their command. Captured scouts use the status of prisoners of war.

From scouts should be distinguished lazutchikov (spies) - persons who, acting secretly or under false pretexts, collect information in the area of \u200b\u200bhostilities. On these persons, the Military Captivity mode does not apply.

Foreign military advisers and instructors - these are persons included in the Armed Forces of another state, which, in accordance with international agreements, are in another state to assist in the development of military equipment and training the personnel of the Armed Forces. Advisors and instructors do not participate in hostilities. Advisors are trained in hostilities. Instructors help in mastering military equipment. However, if these persons participate in hostilities, they equate to combatants.

According to the Additional Protocol I to the Geneva Conventions of 1949, the Parties during the armed conflict ensure that legal advisers which could give advice to military commanders at the appropriate level of the application of the Conventions and the Protocol and the relevant briefing of the Armed Forces on this issue.

Are not combatants mercenaries. According to Art. 47 Additional Protocol I To the 1949 Geneva Conventions. The mercenary is a person who:

• a) specifically recruited at the site of hostilities or abroad to fight in armed conflict;
• b) actually takes part in hostilities, guided mainly by the desire to receive personal benefits. At the same time, the material remuneration should significantly exceed the remuneration paid to combatants of the same rank and functions included in the armed forces of this part. The remuneration form may be different (regular or one-time payments, let's say, for each killed, etc.);
• c) is neither a citizen who is in conflict, nor face permanently residing in the territory controlled by the party in conflict;
• d) not included in the personnel of the armed forces of the parties in conflict;
• e) is not sent by the state that is not a warring party to fulfill official duties as a person who is part of the Armed Forces. These mercenaries differ from military advisers aimed at serving a foreign army under a special agreement between states, and non-direct participation in hostilities.

Mercenaries are war criminals. They can not refer to the provisions of the Geneva Conventions of 1949. They do not apply to the Military Captivity regime. Mercenaries are involved both within the framework of national jurisdiction and specially created international tribunals.

The Convention on the prohibition of recruitment, use, financing and training of mercenaries (1989) to mercenaries belongs not only to those who are directly involved in armed conflict, but also those recruited to participate in advance cases of violence aimed at the overthrow of the government of any state , undermining its constitutional order or violation of its territorial integrity and integrity. The actions of persons engaged by recruitment, use, financing and training of mercenaries, as well as attempt and complicity in such actions are also criminal.

The State party, in whose territory there is an alleged criminal, in accordance with its law enters into custody and immediately conducts a preliminary investigation into facts. States provide each other legal assistance, including the provision of all the evidence necessary for the proceedings.

From mercenaries should be distinguished volunteers (volunteers) - foreign citizens who, by virtue of political or other beliefs (and not material considerations), come to the service in the army of any warring party. They are included in the personnel of the warring state of the armed forces.

Introduction

protection Law Man Conflict Military

Modern international law, prohibiting the use of force or threat to force in interstate relations and at the same time considering the actual or potential armed conflicts, provides for the rules of war and the protection of peaceful (civil) population in order to maximize the possible humanization of the methods and funds used. The relevant norms will compose a special branch of international law, which is currently accepted to characterize as "the right of armed conflicts", bearing in mind, naturally, not the right to clarify such conflicts, and legal regulation International law: Tutorial / d. Ed. G.V. Ignatonko and O.I.Tiunov. M., 2008 ..

Protecting the rights and freedoms of a person in the XXI century is the main, life-affirming principle for all subjects of international public law. First, a person as a subject of generally accepted rights and freedoms is the subject of international relations related to the protection and implementation of these rights. Secondly, human rights even without their official recognition in national and international law remain natural human rights. A person has a cosmopolitan destination - a citizen of the world, the universe, and not just a separate country.

Currently, the main sources of international humanitarian law are the Four Geneva Conventions on the Protection of War's victims of August 12, 1949, as well as the IV Hague Convention of 1907 and, which is an annex to it on the laws and customs of the land war. Along with universal international treaties, the sources of international humanitarian law are regional treaties.

Armed conflicts: concept, species, participants

Armed conflict is an armed confrontation between states or social communities within individual states aimed at resolving economic, political, national-ethnic and other contradictions through the limited use of military force.

In international humanitarian law (judging by the content of Art. 2 and 3, common to the Geneva Conventions of 1949, as well as Art. 1 Additional Protocols I and II to these Conventions) Armed conflicts are divided into two types: a) international armed conflicts and b ) Armed immune conflicts. Akimov N.A. Armed conflicts: concept, species, solutions and legal journal. 2010. №4.

International armed conflicts include: - an armed clash between states (Israel-Arabic armed conflict, conducted from 1967 and to the present, Anglo-Argentine War of 1982, the attack of the United States, England and other states on Iraq in March 2003 ); - The struggle of peoples against colonial domination and foreign occupation and against racist regimes to implement their right to self-determination in accordance with the UN Charter (Article 1 of P. 4 of Protocol I). Based on the practice of international relations, interference should be included in the internal armed conflict of the third state in the interests of one of the warring parties, the participation of the UN military forces, as well as the UN peacekeeping forces in the internal armed conflict (if there is a decision of the Security Council in this case UN on the use of armed forces) international law. Special part. Tutorial / d. Ed. R.M.Valeev, G.I. Kurdyukov. M., 2010 ..

Armed conflicts of an internationally international character include armed conflicts occurring on the territory of any state between its armed forces and anti-government armed forces or other armed groups, which, being under the responsible command, carry out such control over the part of this state, which allows them to maintain continuous and agreed hostilities and apply Protocol II (armed conflicts in the post-Soviet space: Transnistrian - in Moldova, Georgian-Ossetian and Georgian-Abkhaz armed conflicts, etc.). In armed conflicts of an internationally international character, the following international legal acts apply: Art. 3, Total for all four Geneva Conventions of 1949, Art. 1954 of the 1954 Cultural Protection Protection Protocol and the Second Protocol of 1999, the Additional Protocol II 1977, Protocol II with the 1996 amendments to the Convention on the Prohibition or Restriction of the Application of Specific Types of Conventional Weapons, which may be considered appreciated excessive Damage and imperipable effects, 1980, Rome Statute of the International Criminal Court of 1998. International Law. Special part. Tutorial / d. Ed. R.M.Valeev, G.I. Kurdyukov. M., 2010.

The norms of modern international law establish that if the war has become a reality, it should be carried out only between the armed forces of the relevant states and should not be damaged to their civilian population. In this regard, international law introduces a fundamental difference between the armed forces and not participating in military actions by the civilian population.

Participants in armed conflicts are customary to divide into two groups: fighting (combatants) and not fighting (noncombatants).

Combatants include:

1) the personnel of the armed forces of the parties in conflict, as well as the personnel of the militia and voluntary detachments that are part of these armed forces; Personal composition of regular armed forces who consider themselves to be subordinate to the government or the authorities who are not recognized by the other Party in conflict;

2) a personal composition of other militia and voluntary detachments, including the personnel of organized resistance movements belonging to the party in conflict, and acting on their own territory or outside it (even if this territory is occupied), if these militia and volunteer detachments, including organized Resistance movements are responsible to the following conditions: they have a person responsible for their subordinates. have a certain and obviously distinguishable made a distinctive sign (for regular armed forces - uniform clothing); Open weapons: during each military collision, as well as at a time, when they are in sight of the enemy during deployment in combat order, i.e. With any move in the direction of the place, from where or where the fighting will begin; Observe the norms of IHL in their actions;

3) The population of the unexploded territory, which, when approaching the enemy, the spontaneously takes over the weapon, did not have time to form in regular troops, if it is openly wearing a weapon and observes the customs of war Batyr V.A. International Humanitarian Law: Textbook. M., 2006 ..

Nembankatants include: 1) medical personnel; 2) spiritual staff.

Do not have the status of combatant mercenaries and spies. A military spy (Lazutchik) is a person secretly collecting information in the area of \u200b\u200bthe opponent's army in order to transfer their army, in the event of a captivity, it is not entitled to count on the status of a prisoner of war. In other words, it can be judged by the laws of military time. . A mercenary is a person recruited for use in armed conflict actually participating in hostilities in order to obtain material remuneration (Article 47 of the additional Protocol 1977). In the Criminal Code of the Russian Federation specifically included Art. 359, providing for criminal liability for recruitment, training, financing or other material support of mercenary, as well as its use in armed conflict or military actions.

1 Polorank A.I., Savinsky L.I. Decree. essay. -FROM. 240.

2 See: Grigoriev A.G. Decree. essay. -FROM. 10

With the development of IHL, the circle of persons belonging to combatants has expanded.

Simultaneously decreased a list of noncombatants. So, during the Second Hague Conference of the world of 1907, the army, militia, volunteer detachments were attributed to the battlement, as well as the population of an unoccupied territory (Article. The 1st Regulations on the laws and customs of the land war), then the Geneva Convention The protection of the victims of the war of 1949 was determined by a more complete composition of battle.

Currently, in accordance with the norms of the Hague and Geneva Conventions, the following categories of persons include combatants:

personal composition of regular armed forces of warring states (army, aviation, fleet);

the personnel of militias and volunteer detachments that are part of the armed forces of certain warring states; citizens of neutral and other unbound states who voluntarily entering the armed forces of the warring state;

personal composition of other militias, volunteer detachments, organized resistance movements belonging to the parties in conflict, and acting on their own territory or outside it, even if the territory is occupied, as well as partisans (partisan detachments);

members of the crews of vessels of the merchant fleet, including captains, Lotsmanov and Jung, and the crews of civil aviation of warring states that do not enjoy a more preferential regime due to any other provisions of international law;

the population of the non-buoyed territory, which, when approaching the enemy, the spontaneously is taken for the weapon to fight against invading troops, did not have time to form in regular troops, if it is openly wearing weapons and complies with the laws and customs of war;

participants of national liberation movements.

See: Melkov G.M. Decree. essay. -FROM. nineteen; See also: Chikov P.V. Military sanctions in international law. Abstract dismission ... candidate jurid. science - Kazan: Kazan state University, 2003. -s. nine

In addition, some researchers rightly refer to the number of combatants of the personnel of the UN Armed Forces and groups of states formed on the UN Security Council of the UN Security Council in accordance with Art. 42 UN Charter.1

IHP guards all the named categories of combatants. L.I. Savinsky in this regard correctly noted that persons who international right would completely deprive their protection in the process of armed struggle, no.1

Due to the fact that the military operations are often in armed conflict in marine spaces, there is a need to cover the issue of combatants in the maritime war.

Combatants in such a war are: the crews of warships of all kinds (battleships, cruisers, destroyers, aircraft carriers, submarines, boats, etc.), crews of aircraft Navy (aircraft, helicopters), auxiliary ships of all kinds, and trading, refurbished in the military ships. The latter are combatants if there are following conditions:

the crew of the vessel is raised under direct power, direct control and responsibility of the state, whose flag is caring;

the vessel is external distinctive signs of national military courts (flag, pennant);

the ship commander consists in public service, properly appointed to the position, and the crew is subordinate to the rules of military discipline;

the crew of the vessel complies with the rules of warfare;

the re-equipment ship is listed in the list of vessels of the military fleet (Art.

The I-VI of the Hague Convention on the appeal of commercial ships in the Court of 1907).

See: Polorank A.I., Savinsky L.I. Decree. essay. -FROM. 236 2 International Law: Textbook. Ot. ed. Yu.M. Kolosov, E.S. Krivchikova. -FROM. 403-404.

Noncombatants in the sea war include the crews of military hospital courts, if such vessels are built or equipped with states with a special and sole purpose - to assist wounded, sick and victims of shipwreck, as well as the crews of the ICRC hospital ships. They enjoy the protection of international law and cannot be attacked, as well as captured.

Combatants in the air war are the crews of all aircraft that are part of the military aviation of warring states and having their identification sign. These include the crews of civil aviation vessels, transformed into the military within the jurisdiction of the warring state.

No combatants in the air war are the crews of sanitary aircraft, as well as hospital aircraft used by the warring states and the national societies of the Red Cross for evacuation, the treatment of wounded and patients. Sanitary and hospital vessels must have their clearly visible distinguishing sign, and in the established cases - also a distinguishing emblem of the Red Cross. States in conflict are prohibited to use sanitary aircraft to ensure inviolability of military facilities, collecting data collection, as well as for the transport of personnel and military cargo in order to assist the warring.

Consider more of the types of combatants.

1 See: David E. Decree. essay. -FROM. 319.

As the French lawyer E. David notes, the concept of "personal composition of the Armed Forces" is covered by all persons organically part of the Armed Forces in Conflict: personnel military, volunteers, members of the militia, etc., and yet, in our opinion, Persons that are part of the regular armed forces of warring states are the main type of combatants. Any war between states is conducted with the help of regular armed forces, including the army, aviation and the fleet. Regular armed forces have, as a rule, the best organization, discipline and technical equipment. By virtue of this and a number of other reasons, a significant part of the norms of IHP regulates the legal status of this type of combatants. At the same time, according to JUS COGENS standards, each state independently determines the quantitative and qualitative composition of the armed forces, their organization and command, the procedure for formation and acquisition, types of weapons and weapons and other components.

"To the competence of international law, L. Oppenheim reasonably considered L. Oppenheim," does not include the question of which types of armed forces are a regular army and a regular naval fleet; This is a question of exclusively domestic law. The field of domestic rights, the question of whether the so-called militia and voluntary formations belong to the army belong to the army .1 Equally, from the point of view of international law does not matter questions about the composition of the regular army, it is built on the principle of mandatory military Meetiness Or not, whether they will be recruited, along with the citizens of this state, foreigners, etc.

In a number of states (for example, in small African states) and today there are no permanent armies: their troops consist exclusively from the militia (militia) and the formations of volunteers. The provision on the laws and customs of the 1907 land war was specifically provided that in those countries where the militia and voluntary detachments make up the army or are part of the latter, they are included in the concept of "army" (Article I).

Oppenheim L. Decree. essay. ~ S. 269; See also: The course of international law in six volumes. Chapters. ed. F.I. Kozhevnikov. -M.: Science, 1969. T. 5. -s. 291.

Among the combatants from the composition of the regular armed forces should be allocated to persons who are entitled to direct participation in hostilities and persons performing administrative functions. The latter may not be included in the armed forces directly (the Geneva Convention on the Arrival of the Prisoner Security of 1949, Art. 4, paragraph 4), however, being combatants, are also entitled to participate in hostilities and the status of prisoners of war in case of contact captured. This principle was previously mentioned in Art. 11 Brussels Declaration of 1874. Now it is formulated in Art. 4 Third Convention (p. 4) and Art. 44 additional protocol I.

The assignment to the category of combatants of the personal composition of the regular armed forces is not addressed to the fact of recognizing by other government-fighting or authorities, in subordination of which are armed forces (part 3 of paragraph "A" of Art. 4 of the Third Convention). In other words, the fact that the armed forces are in the service of the government or another power that is not recognized by the Captive Power, does not affect this provision, provided that this government or power really represents the party in conflict, that is, the subject of international law who existed before the occurrence of conflict.

Special attention should be paid to paragraph 3 of Art. 43 Additional Protocol I. It states that if the party participating in the conflict includes a semi-general organization or armed organization that ensures the protection of the order, it notifies the other parties involved in the conflict. This provision regulates the legality of participation in armed conflict law enforcement, including internal affairs bodies. Thus, in Belgium, the gendarmerie was previously considered a part of the Armed Forces (law of December 2, 1957, Art. 2, paragraph 1), as evidenced by the statement of the Belgian government in connection with the ratification of June 20, 1986 of additional protocols. However, the Law of Belgium dated July 18, 1991 included the Gendarmey in the category of the "community service", which is subordinate to the Ministers of the Interior and Justice, and not the Minister national Defense, as it was before. However, the change in departmental affiliation did not affect the right of the Belgian government to include the gendarmeri into the armed forces during the military operations, but with mandatory observance of the condition of Art. 43 (p. 3) of additional protocol I. If this condition is not fulfilled, the personnel of these forces will relate to civilians. "

In addition to regular armed forces, irregular military units are often involved in the war. L. Oppenheim offered to distinguish between two types of so-called "irregular armed forces": those that exist with the permission of warring parties (such as internal security (HOME GUARD) formed in the UK in 1940 and is part of State Armed Forces), and those that operate on their own initiative, at their own risk, without a special permission (for example, partisans) .2

Note that it is the legal status of irregular parts as part of the armed forces of the warring parties the greatest number Doctrinal disputes in the light of the problem of combatants.

1 See about it: David E. Decree. essay. -FROM. 320-321

2 Oppenheim L. Decree. essay. -FROM. 271.

3 ibid. -FROM. 271-272.

Returning to the question of the conditions of recognition of persons participating in armed conflict, combatants (Article I provisions on the laws and customs of the Ground War of 1907), we will focus on some comments made by L. Oppenheim. The English lawyer rightly noticed that the norm indicating the need to "have a certain and obviously visible made a distinctive sign", despite its categoricalness, does not determine the distance on which this sign should be seen. In view of this, the author proposed to believe that "the silhouette of a combatant-owned combatant on the horizon lines should be such that it can immediately be distinguished by the naked eye from the silhouette of a peaceful resident at such a distance on which the outlines of the person can be identified." Speaking about the duties to "have a person led by the person responsible for his subordinates," L. Oppenheim noted some vagueness of the word "responsible" (Responsible) .3 In this regard, German researchers X.

Knakstthet and G. Gybank suggested that this term may mean "responsible before any higher power", regardless of whether the specified person has been appointed over or elected future subordinates. "In addition, L. Oppenheim fairly noticed that This provision applies only to the participants of irregular formations that fight in detachments, regardless of the number of the latter. "But such persons who took up the weapons or make hostile actions alone or groups of several people, are still considered criminals and are subject to execution." In the light of this comment of the English lawyer, there is a question about the legality of the partisan movement and the status of partisans as participants in armed conflicts.

Modern international law is considering a partisan war as a legitimate form of armed struggle against the aggressor, colonial dependence and foreign occupation. In the report of the UN Secretary General, the partisan war is defined as "the struggle, which is carried out by disobedient mobile groups, usually armed with light weapons that organize unexpected attacks and, as a rule, avoiding serious battles." The legal status of partisans, as legitimate combatants, was first regulatoryly determined by Geneva Conventions on the protection of the victims of the war of 1949, although in international legal literature the proposal to "legitimize" the partisan movement was expressed back in the XIX century.4

See: W5RterBuch Des V5lkerrechts von K. Stmpp. 2-te aufl. -Berlin: Verlag Von Walter de Gruyter & Co., 1961, BD. II. -S. 260,400

2 Oppenheim L. Decree. essay. -FROM. 272.

3 See: Doc. UN General Assembly A / 8052. -FROM. 63.

4 See, for example: Dogel M. Decree. essay. -FROM. 184-185

5 See: Kozhevnikov F.I. Russian state and international law (until the 20th century). -M.: Jerisdate of the Ministry of Justice of the USSR, 1947. -s. 273.

One of the first attempts to consolidate the status of legitimate combatants for the partisans was made at the Brussels Conference of 1874.5.

Reference in the Hague Regulations on the laws and customs of the Ground War of 1907 on the militia and voluntary detachments, as well as the population of unoccupied territory, voluntarily held for the weapon, reflected the practice of the XIX century, especially the Franco-Prussian War of 1870. 1 Personal data since Practically lost their former value in contrast to resistance fighters (partisans) on the territory occupied by the opponent - categories of combatants, which is not mentioned in the position. During the development period, it was impossible to agree on the recognition of partisans by combatants, since then the alerting about the illegality of the partisan (FRANTERSK) movement in the occupied territory and on this basis of the Francers were executed without trial.

1 cm; Calcchoven F. Decree. essay. -FROM. 35.

A. Heter wrote about this: "Sometimes separately, sometimes next to the properly organized, disciplined and consisted under the command of the troops, participate in the hostilities of the person who, voluntarily and connecting to the party or squads, or alone, leads against the enemy a partisan war . Such are the advantage of so-called gwerillas, free arrows operating in land wars. They obey the general law of the war and equal to regular troops only in the following cases: i) if they participate in the war on the basis of formal regulations of the head of their detachment and can make it please; 2) in the case of a polls or a folk war prescribed or permitted by the government. In this case, it is estimated, of course, that persons participating in the partisan war are valid according to the rules published in the leadership of the uprising. If these rules do not exist if the rebellion, the magnetic militia or people's War Proclaimed in general expressions, it is necessary at least that those who oppose the enemy can be recognized by them by their number, or according to well-known external signs, or by commanders. In all other cases, the enemy is not at all obliged to treat these individuals as the soldiers of the regular army. They are considered in these cases as robbers (Brigantij -.- W.1

F.F. Marthen believed that legal state Partisan detachments, volunteers, volunteers, hunters, free shooters and a magnitude uprising of the population by the employment of the territory shall be discussed. At the same time, he led a number of examples and facts testifying to the fact that the military often considered partisans with simple robbers who do not have any grounds for international legal protection. With special energy, it was in life this view of Napoleon I, who did not recognize the right of the right to draw up partisan detachments on the local population.

The history of armed conflicts shows that cases of cruel violence over the partisans took place both during the Napoleonic wars and the French-Prussian war of 1870, and during the Great Patriotic War 1941-1945 3 For a long time, the warring parties agreed to recognize the rights of combatants only Organized detachments. If citizens wanted to fight and enjoy the rights of prisoners of war, they were obliged to be part of regular troops.

1 Getter A.V. Decree. essay. -FROM. 235-236.

3 cm. About this: Korovin E.A. Brief course of international law. -M.: Viu Rkkka, 1944. Part II. -FROM. 34-35

4 See: Oppenheim L. Decree. essay. -FROM. 273.

Some lawyers and practices of the courts of individual countries still proceed from the illegality of the partisan struggle, arguing that "After the invasion of the enemy to the territory, at least this invasion has not yet become an occupation, the armed performance of the masses of the population is not legal. "4 so, h . Heid noted that international law does not recognize the partisan detachments by the warring party. "Such armed forces," he believed, "lead a war, which is irregular from the point of view of its origin and authorized its power, discipline, goals and methods of reference. Partisans can be organized by any one person; They do not wear forms, engaged by robbery and destruction. As a rule, they do not take prisoners and therefore are little arranged to give mercy. "1 And the US military tribunal in the case of the Nazi generals who operated during World War II in Greece and Yugoslavia ("South-East") recorded in the sentence: "Partisans They are not legally fighting, and they do not appreciate with them as prisoners of war. "2

Currently, such statements and solutions are roughly violating the norms of IHL, which recognize the partisans by legal combatants. Recognition of members of "organized resistance movements belonging to the party in conflict and operating on its own territory or outside it, even if this territory is occupied" (paragraph 2 of Article 13 of the first and second conventions, part 2 p. "A" . 4 Third Convention) Combatants made it possible to finally retain the lives of resistance to fighters and prevent cruel punishment for participating in the partisan movement.

1 See: Hyde Ch. Decree. essay. -FROM. 179.

2 Polorank A.I., Savinsky L.I. Criminal War: US aggression against Vietnam. -M.: Nauka, 1968. -s. 245.

A significant step towards the development of the norms of IHL on the status of partisans was the adoption of an additional protocol I, which actually eliminated the difference between the participants of the resistance movements and regular armed forces and approaches to the criterion of compliance with laws and customs of the war (paragraph 1 of Art. 43). In order to strengthen the protection of the civilian population, the main norm remained the duty of partisans to distinguish itself from him. The persons included in the armed forces are exempt from this duty only in such situations, "when, due to the nature of hostilities, armed combatant cannot distinguish itself from the civilian population." But in such situations, they should open their weapons: a) during each military collision;

b) at a time when they are in sight of the enemy during deployment in combat order preceding the beginning of the attack in which they must take part (paragraph 3 of Art. 44 of the additional protocol

Art. 44 of the additional protocol I, which to a certain extent legalizes the maintenance of partisan wars, is still criticized in the literature on international law. So, for example, it is consistent that relaxation in relation to the duty of combatants always distinguishes from civilians can contribute to terrorism.1 However, it is necessary to remember that this rate concerns only international armed conflicts and, accordingly, terrorists do not belong to any recognized armed forces . And finally, the most important thing: Art. 44, relating to the rights and obligations of combatants (in particular, partisans) in exceptional situations, under no circumstances do not relieve these persons from the obligation to comply with the norms of international law, which prohibits terrorism in all cases without exception.

Thus, it can be concluded that modern international law recognizes the legality of the resistance movements in the occupied territory, which is the permitted theater of military operations partisans.

1 Gerber W. War Atrocities and The Law. -Washington: S.T. Publishers, 1970. -p. 210.

At the same time, it is necessary to note the opinion of some lawyers, believing that the detailed regulation of the partisan struggle will increase the horrors of the war. In the 19th century, F. Lieber treated them, which characterized the partisan detachments as "the spontaneous armed groups during the war, which are not part of an organized army, not listed in the official payment statement of the army or not at all charges", which "are taken For weapons, they fold it and lead a small war (Guerrilla), mainly making raids, robbery, destruction and massacre. " But despite such a categorical judgment, F. Lieber believed that if the participants in the partisan detachments were taken captured in honest and open battle, they should be applied with them as regular combatants, unless it is proven that they committed such crimes as, for example Murder.1

In the 20th century, F. Berber, R. Bindshedler, K. Dering2 and other lawyers were opposed to opponents of the legality of the partisan movement.

Unfortunately, the workframes do not allow us to highlight the discussion of supporters and opponents of the "legalization" of the partisan movement and giving partisans of combatants. In our opinion, I strongly expressed the essence of this problem, the German lawyer of Skupin, with the words of which we would like to finish the analysis legal status Partisan: "How insufficient legal regulation The status of partisans and the methods of their struggle and non-critical, formal consolidation in international law of all forms of manifestation of this struggle can increase the horrors of war instead of weakening them. "3

Cyt. By: Heid Ch. Decree. essay. 179-180; See also: Field Instructions for the United States Troops 1863. Section IV. See: Getter A.V. Decree. essay. -FROM. 52 applications

2 See: Berber F. Lehrbuch Des Volkerrechts. -Bd. 2, kriegsrecht. -Milnchen, 1969. -s. 144; BINDSCHEDLER R.L. Die Zukunft Des Kriegrechts // Festschrift Fur Friedrich Berber Zum 75. Geburtstag. -Munchen, 1973. -s. 64; Doehring K. Verfassungsrecht und Kriegsv51kerrecht. IBID. -S. 144.

3 See: Scupin H.U. Freischarler, Guerrilleros, Partisanen: (Gedanken Zum Begriff Den Kombatanten) // Diplomatic Und Intern. Beziehungen. -1975. -№ 2. -s. 201.

In the middle of the 20th century, the English International L. Oppenheim, considering the issue of a mass armed uprising during the war, wrote: "Sometimes the masses of the population are raised against the enemy spontaneously, without being organized by a warring state. In such cases, the question arises whether the persons from which such armed masses of the population are consisting of the armed forces of the warring state and, therefore, whether they enjoy the privileges provided by the participants of the Armed Forces .1

Relying on Art. II provisions on the laws and customs of the Ground War of 1907, we answer this question like this: the population of the unexplored territory, which, when the enemy approaches the echigine, in its own aspiration, is taken for the weapon to combat invading troops, without having time to still be formed in regular troops, It is recognized as a legal participant in combat operations, if it is openly wearing a weapon and complies with the laws and customs of war. In other words, the participants in the mass armed uprising are, subject to observance of Art. II provisions, combatants, but not relate to the regular armed forces of the warring state.

See: Oppenheim L. Decree. essay. -FROM. 272 2 Text of the Convention - see "Russian disabled", 1875, No. 10

The norm on the participants in the mass armed uprising was first fixed by the Brussels Declaration of 1874 (Art. 10). Initially, the population of the neocked territory in the mentioned situation was made one requirement - to comply with the laws and customs of war. Later, at the Hague Conference of the world of 1907, to the Regulation on the laws and customs of the ground war, the requirement for open weapons was additionally included. And in 1949 this provision was confirmed by the norms of the Geneva Conventions (Article 13 of the first and second conventions; Art. 4 of the Third Convention). However, the proposals to attribute the population of an unequard territory to the number of battlements were expressed long before the adoption of the Hague Convention on the laws and customs of the Ground War of 1907. In 1758, E. De Wattel wrote: "There are ... cases where subjects may reasonably assume what The will of their sovereign, and to do in accordance with his silent order. So, contrary to the usual, according to which military operations lead only troops, if residents of the fortified city do not give promises or oaths that they will obey this enemy, and will find a suitable case to attack the garrison and to return the city under their sovereign, they can safely Expect that the sovereign will approve this brave enterprise ... True, if the townspeople fail, the enemy will be very severely. But this does not prove that the company is illegal or contrary to the law of war. In this case, the enemy in this case uses its right-hand of armed forces, allowing him to apply an intimidation in certain limits in order to prevent the Sovereign Sovereign with him not too easily risked to apply these bold blows, the success of which could be destructive for the enemy. ".1 Thus, the legal thought of the XVIII century has already been fully consciously allowed the possibility of participating in the war in the war as legal participants, but only in strictly agreed for this case.

Exploring the problems of the rule of war, the French thinker P.Z. Proudhon wondered: how to resist you to resist? Referring to E. De Wattel, he noted that "Resistance deserves punishment when it is obviously useless." P.Zh. himself Proudhon highlighted two cases, depending on which offered to consider the resistance of the masses (mass armed uprising) with a resistance or unauthorized. "If the war., There is a sanction of international law, then we all must comply with its law, which is the law of force, and even more so that the subordination does not conclude anything shameful. But when it comes to a political fusion or liberation ... In this case, the warring parties are the only judges, what price is the subject of war, and therefore, in this case, they are also the only judges to what extent should they resist them.

1 Wheel E. Decree. essay. -FROM. 564.

2 Proudhon P.Zh. War and Peace. Research on the principle and content of international law. -M.: Ed. A. Cryhenina and to °., 1864. T. 2. -C. 54-55

"Sometimes during the war, when the enemy approaches the enemy, the warring state calls on the entire population of the country to take up the weapons and, thus, makes the entire population with part (albeit more or less irregular) of its armed forces." Combatants participating in the formations created by the state from the population are used by the privileges provided to persons part of the Armed Forces of the Fighting Party, provided that they receive some organization and comply with the laws and customs of war.

1 See: Oppenheim L. Decree. essay. -FROM. 272.

2 See: Getter A.V. Decree. essay. -FROM. 54 applications

3 See: Hyde Ch. Decree. essay. -FROM. 174-175

In the instructions of the United States field troops No. 100 dated April 24, 1863 (Liber Code) argued that although not a single fighting is entitled to declare that he will handle each captured by an armed person from a voiced uprising as a robber or a gangster if the country's population or any part of it, the already occupied army, will rise against it, the rebels will still be violated laws of war and will not have the right to defense on the part of these laws.2 "Therefore, much depends on the fact that invading not yet It turned into an invader, and we believe that an additional agreement is necessary, which would define, with what position it is possible to rightly say that such a transformation took place. In addition, there is no doubt the need for a more definite agreement than the one that has received an expression in the Hague rules regarding the conditions that should be observed in the cases of mass armed performance (Levee En Masse) in order for with its participants to contact them with warring. " 5, however, the persuasiveness of the arguments leading to the defense of the desire to significantly limit the possibility of legitimate activities of such a formation, weakened by the arising suspicions that the defenders of this point of view want only to free the invaders from any legal restriction that could prevent him from suppressing resistance in which It would be a form of it, by open terror. In this regard, the rights of Ch. Heid, who has noticed that the relative inability in the conditions of the land war is to withstand the promotion of the invaded army should not weaken the legal status of those who, despite the superiority of the enemy, arises to protect their country.

The right of the population on a mass uprising lasts only for the time required for attempting to push the enemy. With the establishment of the occupation mode, the population no longer continues to fight on legal grounds within the framework of this kind of speeches. As L. Oppenheim rightly noted, in the case of an armed uprising in the already occupied territory, "the old norm of international customary law remains in force, in accordance with which the participants asked for the mass of the population in capturing them in captivity of the enemy can be executed." .2

1 See: Hyde Ch. Decree. essay. -FROM. 175 See: Oppenheim L. Decree. essay. -FROM. 273.

In our opinion, it is especially important in this case not to mix the invasion with the occupation. Art. The II provisions on the laws and customs of the land warrior definitely talks about the approach of the enemy and thereby authorizes only the armed performance of the population, which is happening in the territory for which the enemy has not yet invaded. After the invasion of the enemy to the territory, at least this invasion has not yet become an occupation, the armed performance of the population is not legal. Of course, the term "territory", in the meaning, in which it is used in Art. Ii, it means not the entire space of the warring state, but only those parts of its territory in which the enemy has not yet invaded. In other words, if one of the two neighboring cities is already engaged in the enemy, the population of another when the enemy approaches it can legitimately rise and take up the weapons. It does not matter whether it has a population in direct communication with a regular army or separately from it. Thus, emphasizes the right of the population of the non-buoyed territory, which took the weapon, the status of combatants.

If the population of the already occupied territory wishes to continue the struggle, it should be done in compliance with the conditions stipulated by the IHL standards for the participants of the resistance and partisan detachments.

The question of the legal status of participants in national liberation wars and the resistance movement has gained a special relevance in the modern epoch. The fact is that such conflicts go beyond the framework of Art. 3, common to the Geneva Conventions on the protection of the victims of the war of 1949, regulating the internal armed conflicts, and are governed by the provisions of the Additional Protocol I 1977 (clause 4 of Article 1) as international armed conflicts. 1 from the international nature of conflicts arising in connection With the struggle of nations for freedom and independence, it logically follows the recognition for participants in the liberation movements of the status of combatants.

Some lawyers still doubt the international nature of national liberation wars. See: IPsen K. Zum Begriff Des "Internationalen Bewaffnen Konflikts" // RechT Im Dienst Des Friedens. -Berlin, 1975. -s. 413; Kimminich O. Schutz Der Menschen in Bewaffnen Konflikten. Zur Fortentwicklung Des Humanitaren v6lkerrechts. -Munchen, 1979. -s. 95.

2 See: Arzibasov I.N. Decree, essay. -FROM. 163; See the UN General Assembly resolution: 2852 (XXVI). Respect for human rights during the period of armed conflicts. December 18, 1972, 2676 (XXV). Respect for human rights during the period of armed conflicts. December 9, 1970, etc.

In resolution of the UN General Assembly 3103 (XXVTII) dated December 12, 1973 ("The basic principles of the legal regime of combatants fighting against colonialism and foreign domination and racist regimes") enshrined that the legal regime provided for the category of combatants "should be distributed to this category Combatants in the Geneva Conventions on the protection of the victims of the war of 1949 and in other international documents. "This provision was based on the formation of the legal status of combatants of national liberation movements enshrined in the Additional Protocol I (Article 1, paragraph 4). Therefore, the participants captured by the participants of such movements are provided with the status of prisoners of war in full compliance with the Third Convention.

The question of the status of participants in the resistance movement, that is, the militia and detachments of volunteers who are not part of the regular armed forces were partly resolved in the Brussels Declaration of 1874 (Article 9). The principles contained in it were repeated practically unchanged in the Hague Regulations on the laws and customs of the Ground War of 1907 (Article 1) and the Geneva Convention on the treatment of the prisoners of war in 1949 (paragraph 2 of Art. 4 "A").

1 See: David E. Decree. essay. -FROM. 322.

The French lawyer E. David notes with reference to the indicated standards that the right to participate in hostilities and receiving the status of the prisoner in the event of a seizure of the enemy are members of the personal composition of these forces, satisfying one basic and four formal conditions. 1 The ground condition is to belong to the resistance movement Side in conflict. Such an affiliation can be expressed either in the official recognition emanating from the government representing the state, in the interest of which this movement is fighting, or in the "actual communication" between this movement and the defended state, which is expressed in facts such as the silent consent of the state authorities, material Help the latter, etc. So, in Italy, judicial decisions were made, partisan detachments formed in Italy during the Second World War, although their official recognition of the Italian law occurred much later than their creation. Nevertheless, in practice, E. David notes, it is not always easy to determine whether a state function actually performs a state function or is nothing more than an armed gang pursuing his personal goals.

Indeed, in most cases the true goal of the movement is simply impossible. This complicates the qualifications of its actions.

To the formal conditions of E. David, they carried those that are directly fixed in Art. I provisions on the laws and customs of the Ground War of 1907, subject to these conditions, according to the French lawyer, the participants in the resistance movements are considered the fighters of the "irregular" armed formations (in the sense, as defined in Art. I position).

However, with the development of national liberation wars, the conditions for the presence of a distinctive sign and on open weapons, as in the case of partisans, were completely unrealistic: in fact, is it possible to submit that the participant of the resistance movement or partisan detachment, the main tactics of which is the dissolution among the local population, will agree constantly and openly demonstrate explicit evidence of their belonging?

As an example, you can bring historical fact. After the Second World War, one Italian court rejected a civil lawsuit against partisans for damages. These partisans attack the German troops, violating the rules that must be respected by the participants in the resistance movement. Recognizing that these persons were not regular combatants within the sense of the Regulation on the laws and customs of the Ground War of 1907, the court acquitted a violation that it was impossible to comply with the relevant norm with the circumstances that existed at that time: "... it was impossible to conduct military actions in The quality of the organized force, which has a responsible person, to ensure the presence of uniform clothing and a distinctive sign, clearly distinguishable from afar, as well as open weapons, as required by the laws of war. "These situations are quite often arising in the course of armed conflicts, their resolution is intended to promote Improving IHL norms.

Compliance with the first condition of Art. I provisions - the presence of a person responsible for its subordinates, in our opinion, should not be questioned because it does not contradict common sense and the goals and tactics of the armed struggle of resistance movements. As for the fourth condition of Art. I (compliance with the laws and customs of war), then it, in our opinion, is discriminatory in relation to participants in resistance movements, which actually use the status of prisoners of war only subject to the laws and customs of the war. The individuals from the regular armed forces receive this status regardless of whether they comply with the laws and customs of war or not. True, in the case of violations, military personnel may be prosecuted for them, but they use special guarantees as prisoners of war, sometimes large than interneed civilians in the occupied territory.

It is this legal situation that is impossible and essentially unfair, should have been changed that it became one of the main objectives of the diplomatic conference 1974-1977, as well as one of the most important objects of disagreements that were revealed. Almost the greatest difficulty on this path was that mitigating the conditions for granting the status of prisoners of war participants of the resistance movements should not have created a threat to the security of civilians. A complete refusal to "distinguish between" combatant among civilians would mean the elimination of external differences between them and, as a result, the danger of damaging the civilian population. The decision made in the end was a fragile compromise between the military tasks of the partisan war and humanitarian requirements to provide protection to the civilian population.

To this end, in Art. 43 and 44 of the additional protocol I were in new ways formulated norms relating to the provision of the status of a prisoner of war. The changes have affected two aspects:

eliminating the unfavorable differences between the participants of the resistance movements and the personnel of the regular armed forces;

determination of the sanction for combatants for non-compliance with the requirement to distinguish itself from the civilian population.

In other words, the provision of the status of the prisoner to be captured by the participants of the resistance movements is no longer subordinated only by the condition of compliance with the laws and customs of the war. Just as in the case of the regular armed forces of the state, it is enough that the part to which they belong is imputed to them in the obligation to comply with the norms of IHL. Violation of this duty is individually, that is non-compliance with these norms by combatant, does not prevent the latter to obtain the status of the prisoner of war in case of detention by his enemy (Additional Protocol I, Art. 44, p. 2).

The Institute of Volunteering takes place, perhaps, in any armed conflict. A volunteer is a person who, at will, enrolled in the current army of one of the warring parties. Volunteers are included in the list of armed forces, which makes them combatants in accordance with the norms of the Regulations on the laws and customs of the Ground War of 1907 (Article I), as well as the Geneva Conventions of 1949 (Art. 13 of the First and Second Conventions, Art. 4 Third Convention). The general principles of the participation of volunteers in armed conflict were identified during the Second Hague Conference of the world. Thus, in the Convention on the Rights and Responsibilities of Neutral Powers and Persons in the case of land war, it is established that "the responsibility of the neutral power does not arise due to the fact that individuals separately cross the border to enter the service of one of the warring" (Article 6). In addition, paragraph "B" Art. 17 this convention focused that if a separate person voluntarily enters into the army of warring, it loses the status of a neutral state.

The Institute of Volunteer has deep historical roots. Volunteering was widely used, for example, in the wars of republican France against the coalition of monarchical states at the end of the XVIII century, during the war between the Republicans and Frankista in 1936-1939. E. De Wattel also described the legal status of this category of combatants: "The noble goal is to study the military business and become, thus, more capable of using his homeland, created the custom to serve as volunteers even in foreign armies. There is no doubt that such a commendable goal justifies this custom. Therefore, volunteers are considered ... the enemy who took them in captivity, as if they belonged to the army, in the ranks of which they fight. It is quite fair, for they actually belong to this army, they fight for the same matter, and it does not matter, this is due to any duty or by virtue of their voluntary decision. "1 A similar opinion was adhered to L. Oppenheim.

The foreign citizens entering the armed forces in this way do not violate the norms of international law. With respect to the enemy, their situation is no different from the position of the personnel of the armed forces of the state, in the ranks of which they entered.

1 See: Wheel E. Decree. essay. -FROM. 565.

2 See: Oppenheim L. Decree. essay. -FROM. 275.

At the same time, volunteers need to be distinguished from mercenaries. When delimiting the status of mercenary and volunteer, the determining point is the fact that the latter is included in the personnel of the Armed Forces. This makes a volunteer combatant, and the warring party incorporated it into the personnel of his armed forces, thereby takes responsibility for his actions. 1 The mercenary, in accordance with Art. 47 of the Additional Protocol I is not included in the personnel of the armed forces of the part of the parties in conflict, and does not have the right to the status of combatant and the military of the nonopene.

Scout is a combatant. Under the intelligence in IHP it is understood as a person who is part of the armed forces of the warring state, dressed in a military uniform and penetrating the action of the enemy army to collect information

0 adversary. Captured by the enemy captured when collecting information, the scout becomes a prisoner of war (Article XIX provisions on the laws and customs of the Ground War of 1907). In contrast to the spybone spy (Lazutchik) - "A person who, acting in secretwise or under false prepositions, collects or tries to collect information in the area of \u200b\u200baction of one of those who are fighting with the intention to inform such a nasty side. Captured by the enemy when collecting information, the Nazutchik is not becoming a prisoner And it can be brought to criminal liability as a spy (Art. XXIX), but in this case, the "Lazistchik caught in place cannot be punished without a prior court" (Art. XXX). The main difference between the military intelligence officer (spy) - military form of the scout, testifying to his belonging to the armed forces of its state.

1 The Hague Convention on the Laws and Customs of the Ground War of 1907 contains the norm that the warring party "is responsible for all actions committed by persons from the composition of its Armed Forces" (Article III)

"During wars, it was often a question about the delimitation of the concepts of a spy and a military intelligence officer. Significant complications also provided the practice of using parachutes and saboteurs thrown into the enemy rear. During the Second World War, there was significant complications about the legal status of intelligence and saboteurs, discharged on the parachutes and planted from the sea allies on the coast of European territories occupied by the Germans. These servicemen, who were named after the Commandos detachments, were intended to conduct intelligence activities and committing sabotage acts against the German fascist troops. "In the given quotation, intelligence officers, diversants, parachutes and commandos are mentioned, which are exploration and commit Divergent acts, as a result of which they are allegedly difficult to degrade from spies. According to Professor G.M. Melkov, with whom we fully agree, "difficulties" and "complications", emphasized by the authors, are only apparent, originating because of the mixing of concepts. G.M. Melkov rightly believes that all these individuals remain combatants, regardless of where the fighting is carried out: directly at the front or in the rear of the enemy. Similar inaccuracies, according to a domestic lawyer, occur due to direct use of the terminology of national legislation in IHL. This kind of analogy is unacceptable.2

See: International Law Course in six volumes, T. 5. -C. 293-294.

2 See: Melkov G.M. Decree. essay. -FROM. 22.

3 ibid. -FROM. 27.

Under military advisers and instructors are civilians or servicemen who are under political leadership or military command of a warring state in order to provide political councils to the management or training of the personnel of the armed forces of a foreign state with access to the equipment supplied by equipment and weapons. Professor GM Melkov expresses the opinion that military advisers and instructors on their legal status are approaching noncombatants.3 does not cause doubts that such persons are not mercenaries, but at the same time there is not a single existing international treaty that would define the legal status of military advisers and instructors . As a rule, their legal status is determined in bilateral treaties between interested states with the provision of quasidiplomatic states (as if, as if immunities and privileges, 1 remaining military personnel of their own state, military advisers and instructors are not part of the armed forces of the host state. Thus, they should not take part in the fighting, although they can be armed with personal weapons that have the right to use only for self-defense. Accordingly, weapons should not be applied against them. A reasonable question arises: is it legitimately under such conditions to consider military advisers and instructors combatants? As already noted, the normatively of their legal status is not fixed anywhere. In fact, according to its legal position, they are more falling under the concept of "noncombatant" (non-participation in hostilities, non-separation of the regime of military captivity, etc.). At the same time, military advisers and instructors should be distinguished from servicemen who are part of the regular parts of their states, which under the guise of advisers can be used in hostilities, or when these advisers are sent to direct participation in them (for example, American advisers in El Salvador With which President R. Reagan, at the end of 1983, personally gave an order to take the command of the "operational parts" of the junta). According to G.M. Melkova, in the first case, the legal status of such "advisers" is practically no different from the legal status of ordinary combatants, in the second - it is difficult to distinguish with the legal position of mercenaries.3

See: Melkov G.M. Decree. essay. 27.

2 See: "Abroad." -1983. -№51.-s. fourteen

3 See: Melkov G.M. Decree. essay. -FROM. 27.

Due to the lack of the regulatory concept of "noncombatant" and the legal unreasurement of the status of military advisers and instructors, we cannot attribute them to the number of combatants or noncombatants. In our opinion, a more faithful solution to this problem should be the assignment of military advisers and instructors to the number of foreigners who are in the period of armed conflict with the armed forces of the warring party. With this approach, their legal status will be determined on the basis of the norms of the Fourth Convention (Article. 35-46).

Burning war, modern international law, formed during the last half a century, allows the use of armed forces only in the following cases:

1. In the course of the defensive war in the order of the right to individual or collective self-defense against aggression (Article 51 of the UN Charter);

2. During the national liberation wars; 3.

when performing operations with the UN troops or national (multinational) troops by decision of the UN Security Council under Art. 42 UN Charter (for example, against the DPRK in 1950-1953, against Iraq in 1991); four.

when performing contractual obligations (for example, the use of Indian troops against TOTO militants under the agreement of India and Sri Lanka in 1987). 1

In addition, the use of armed forces in the case of civil warsBut such armed conflicts relate to the number of non-international and regulated by the provisions of the Additional Protocol II 1977.

See: International Public Law. Tutorial / Ed. K.A. Beckyasheva. -M.: Prospekt, 1999. -s. 568; See also: Khlestov O.N., Nikitin A.I. The use of armed forces in international relations and the position of Russia (international legal aspects) // Russian annual international law. 1996-1997. -Spb., 1998.-s. 190-191

In connection with the possibility of participating in the military actions of the UN Armed Forces, this organization acts as a subject of IHL. There is an opinion that the UN can not be a subject of IHL, since "is not a party to the Geneva Conventions of 1949." and, accordingly, the personnel

UN Armed Forces are not considered to be combatants. However, we adhere to the position of Professor G.M. Melkova, which is true of the number of combatants, the personnel of the UN Armed Forces and groups of states formed on the mandate of the UN Security Council in accordance with Art. 42 UN Charter.

The question of the types of noncombatants logically follows from the problems of determining the concept of "noncombatant" considered in the previous paragraph. Analyzing the international legal discussion of domestic and foreign scientists on this issue, we partially affected the question of the categories of persons who treat them to the number of noncombatants. In addition to the foregoing, we note that in the doctrine of international law there are different points of view regarding the classification of this category of legal participants in armed conflicts.

1 See: Schweizerisches Jahrbuch Fur Internationales Recht. BD. 22, 1965. -Zurich, 1966. -s. 85.

See: International Public Law. Tutorial / Ed. Ka Beckyasheva. -FROM. 572.

3 See: Getter A.V. Decree. essay. -FROM. 234,241

4 See: Higgins R. War And The Private Citizen. -London: Gwendon Press, 1912. -p. 91112.

So, A. Getter to the unreleased participants of armed conflicts attributed military priests, physicians, market suites, apartments and intentes, consolidating the right to apply weapons only in case of extreme need for personal defense.3 At the beginning of the 20th century, English lawyer R. Higgins considered noncombatants Medical sisters, Sanitars from the number of military personnel and volunteers, markets, suppliers, civilian officials, newspaper correspondents, diplomats and military attache at the commander-in-chief rate. 4 F. Sheet called two groups of noncombatants. By the first he referred "ranks military civil service, with military clergy inclusive ", representatives foreign stateswho received permission to be in troops on official need ... ". The second group, in his opinion, belonged to newspaper correspondents, suppliers, marcitants and other faces. At the same time, F. Leaf referred to Art. WCH and HS HAS GAGI on the laws and customs of the Ground War of 190711

According to Ch. Heyd, rightly noticed that the Hague position

0 The laws and customs of the Ground War of 1907 does not determine which persons can be considered non-exhaust participants in armed conflicts, the latter belongs to medical personnel, veterinary, legal, intensity and financial services, chaplains and civil servants. At the same time, an American lawyer offered to distinguish between persons who accompany the army, but do not belong to its composition, and other noncombatants.2

In the meaning of Art. The XIII provisions on the laws and customs of the Ground War of 1907. The newspaper reporters, marks and suppliers accompanying the army, but not belonged to its composition, could be attributed to the unreserving reporters. As an element that enhances the combat capability of the army, the faces of this category, falling into the power of the enemy, were to be together with the combatants of the Military Captivity regime. "We must, however, note," E.A. wrote on this Korovin - that in the context of modern war (bombing of warehouses, rear bases, etc.) The difference itself in the position of servicemen belonging to the category of combatants and formally not belonging to it has become very conditional. "

1 See: Lovef. Decree. essay. -FROM. 402.

2 See: Heide H, Decree. essay. -FROM. 182.

3 Kovin E.A. Decree. essay. -FROM. 38.

A.I. Polorank and L.I. Savinsky, who offered to be used as a criterion to distinguish between combatants and noncombatants, the nature of involvement in the armed conflict was believed that all the persons included in the armed forces or the following persons who, by the nature of their activities, should not be taken Direct participation in an armed struggle, and their weapons are used mainly for self-defense. With this approach, the faces listed in Art are subject to noncombatants. 4 (p. 4) of the Geneva Convention on the treatment of prisoners of war in 1949, however A.I. Polorank and L.I. Savinsky was not limited to this article, noting that persons attributive to the norms of the Geneva Conventions of 1949 to the number of noncommunications are not exhausted by a list of disrepair.1

Professor GM Smalls, as we have already noted, proposes to refer to the number of noncombatants of the persons listed in Art. 4 (p. 4) Third Convention, as well as medical and sanitary personnel and the clergy of all religions.2

H.P. Hasser believes that the noncombatants may be treated as a person who are generally not participating in hostilities (for example, medical personnel), and those that have ceased to participate in them (for example, wounded and patients) .4 We cannot agree with Such a position, since the second category of persons definitely refers to the number of war victims and falls under the regulation of the first and second conventions.

1 See: Polorank A.I., Savinsky L.I. Decree. essay. -FROM. 239-240

2 See: Melkov G.M. Decree. essay. -FROM. 23.

3 See: International Law. Dictionary-directory. -FROM. 184.

4 Hasser H.P. International legal norms used during hostilities and some lessons learned from recent conflicts // Moscow Journal of International Law. -1994. -№ 3. -C. 31.

5 Therefore, the opinion of R. Gutman and D. Riffa is erroneous from this point of view, which are equitable to civilians. See: Military crimes. It is necessary to know everyone. -M.: Text, 2002. -s. 9. The same erroneous opinion is adhered to R. Baxter. See: International Humanitarian Law. -M.: Institute of Humanism and Mercy, 1993. -s. 152.

As already noted, in our opinion, there are two categories of persons: medical personnel and clergy. 5 Members of medical and spiritual personnel are not eligible to take direct participation in hostilities: this prohibition follows from the inviolability they enjoy during the conflict. They cannot be considered prisoners of war, possessing a special status that combines the defense provided by the prisoners of war, with the right to fulfill their spiritual and medical duties (the third Convention - Art. 33; Additional Protocol I - Art. 43). Sometimes it is called "stability" of the status of medical personnel and medical formations.

Analysis of IHL norms on the concepts and types of legal participants in armed conflicts allows us to draw the following conclusions. one.

International legal standards governing the status of legal participants in armed conflict, originally arose in antiquity in the form of normal law norms, have undergone significant changes in the development process and finally transformed into contractual norms only in the XIX century. Currently, these norms are coded mainly in the Hague Conventions of 1907, the Geneva Conventions on the Protection of War of 1949 and the Additional Protocol of 1977, along with them, the norms of customary law continue to operate and the norms extending during the period of armed conflicts on those Relationships that are not resolved by conventions. 2.

A legal participant of armed conflict is a person who is part of the Armed Forces of the Party in a conflict, having the right to directly participate in hostilities (combatant), as well as a person from the Armed Forces of the Fighting Party, who has no right to directly participate in hostilities (noncombatant ). Thus, the criterion for the delimitation of combatants and noncombatants is the presence (absence) of the right to direct participation in hostilities. 3.

The concept of "combatant" is enshrined in Art. 43 of the additional protocol I 1977 and does not cause disputes in the doctrine of international law. A certain difficulty represents the absence of a normatively established definition "noncombatant". For this reason, it is almost impossible to form a unified approach to understanding this category of participants of armed conflicts. In addition, the absence of such a definition prevents the establishment of a universal classification of combatants and noncombatants. In our opinion, only medical personnel and clergy belonging to the armed forces of the parties in conflict include noncombatants. All other categories of persons listed in the Geneva Conventions on the protection of the victims of the war of 1949 are combatants. four.

In international humanitarian law applied during the period of armed conflict, there are no norms that determine the legal status of such a category of persons as "military advisers and instructors". Given the nature of the activities of such persons, as well as the lack of a normatively enshrined concept of "noncombatant", we concluded about the need to attribute them to the number of foreigners in the period of conflict on the territory of one of the warring parties. In other words, such persons are not legal participants in armed conflicts. five.

The analysis of the legal status of partisans and participants in national liberation movements showed that there are currently the norms that enshrines the rights and obligations of combatants (for example, Article 4 of the Geneva Convention on the treatment of prisoners of 1949 and Article 1 of the Additional Protocol I 1977 G.). Therefore, the point of view of some Western lawyers about the illegality of partisan and national liberation wars confesses with these norms.

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