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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?

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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
    Commented Feb 2 at 10:39

2 Answers 2

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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.

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  • "Assuming that the assailants of the armed forces were following the rules of law" How important is this caveat?
    – Ona
    Commented Feb 2 at 14:16
  • 2
    @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
    Commented Feb 2 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.

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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
    Commented Feb 1 at 17:52
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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
    Commented Feb 2 at 2:53
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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
    Commented Feb 2 at 3:06
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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
    Commented Feb 2 at 3:16
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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
    Commented Feb 2 at 3:19

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