requirement,58 are protected under the Fourth Geneva Convention, whether they have directly participated in hostilities or not. Civilians who do not meet the nationality requirement59 are protected, at a minimum, by Common Article 3 and Article 75 of API,60 as well as other relevant laws, such as customary international law and international human rights law.61 118. Thus, during any form of armed conflict – including an international armed conflict – there is no intermediate status that is outside the protections of international humanitarian law.62 58 “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.” Convention (IV) relative to the Protection of Civilian Persons in Time of War Geneva, 12 August 1949, (hereinafter, “Fourth Geneva Convention”), Art. 4, <https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=AE2D398352C5B028C12563CD002D6B5C&action=openDocu ment>. See, also, Commentary on Art. 4, Fourth Geneva Convention, ICRC website, <https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?viewComments=LookUpCOMART&articleUNID=78EB50EAD6EE7AA 1C12563CD0051B9D4>; “Foreign Fighters Under International Law”, Geneva Academy of International Humanitarian Law and Human Rights, October 2014, p.18, <http://www.genevaacademy.ch/docs/publications/Briefings%20and%20In%20breifs/Foreign%20Fighters%20Under%20International%20Law%20B riefing%20no7.pdf >. 59 The ICTY associates the nationality requirement with allegiance. “In the cases provided for in Article 4(2), in addition to nationality, account was taken of the existence or non-existence of diplomatic protection: nationals of a neutral State or a cobelligerent State are not treated as ‘protected persons’ unless they are deprived of or do not enjoy diplomatic protection. In other words, those nationals are not ‘protected persons’ as long as they benefit from the normal diplomatic protection of their State; when they lose it or in any event do not enjoy it, the Convention automatically grants them the status of ‘protected persons’. (…) [N]ot only the text and the drafting history of the Convention but also, and more importantly, the Convention’s object and purpose suggest that allegiance to a Party to the conflict and, correspondingly, control by this Party over persons in a given territory, may be regarded as the crucial test.” ICTY, Prosecutor v. Duško Tadic, Case No. IT-94-1-A, 15 July 1999, paras. 165166, <http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715e.pdf>. 60 “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts”, ICRC, September 2007, op. cit., note 18, p. 727. International Review of the Red Cross, Vol. 87, No. 858, June 2005, p. 377, <https://www.icrc.org/eng/assets/files/other/irrc_858_pejic.pdf>; “Fact Sheet: New Actions on Guantánamo and Detainee Policy”, The White House website, 7 March 2011, <http://www.whitehouse.gov/the-press-office/2011/03/07/fact-sheet-newactions-guant-namo-and-detainee-policy>; Department of Defense Directive 2310.01E, op. cit., note 14, para. 3(a)(3). 61 Article 75(8) of API, for instance, provides that “[n]o provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1” (paragraph 1 is applicable to all “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol”). See, also, “The relevance of IHL in the context of terrorism”, ICRC Resource Centre, op. cit., note 24; Pejic, “Procedural Principles and Safeguards”, op. cit., note 16, p. 378. 62 ICTY, Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, 16 November 1998, para. 271, <http://www.icty.org/x/cases/mucic/tjug/en/981116_judg_en.pdf>: “there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Geneva Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied.”; Commentary on Art. 4, Fourth Geneva Convention, ICRC website, op. cit., note 58: “Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.” See, also, API, Art. 51(3); Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities”, op. cit., note 45, pp. 83-84: Any civilians who participate directly in hostilities do not lose their civilian status although during their participation in hostilities they lose their immunity from attack. While civilians have a duty to respect international humanitarian law, direct participation in hostilities by civilians in itself does not constitute a violation of international humanitarian law and does not constitute a war crime although such participation may be prosecuted under domestic law. When civilians who have participated in hostilities are captured they remain protected civilians under the Fourth Geneva Convention. Antonio Cassesse, “Expert Opinion on Whether Israel’s Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law”, 2006, para. 7, <http://www.stoptorture.org.il/files/cassese.pdf>: “the term ‘unlawful combatants’ is merely descriptive and is by no means intended to create a third status between those of combatant and civilian.” 45