APPLYING THE U.S. AND ICRC STANDARDS FOR DIRECT PARTICIPATION IN HOSTILITIES TO CIVILIAN SUPPORT OF U.S. MILITARY OPERATIONS.

• Author: Jackson, Jay C.
• Position: International Committee of the Red Cross

1. INTRODUCTION II. OBLIGATION NOT TO ATTACK CIVILIANS UNLESS THEY TAKE A DIRECT PART IN HOSTILITIES III. DEFINING DIRECT PARTICIPATION IN HOSTILITIES A. ICRC Interpretive Guidance 1. Threshold of Harm 2. Direct Causation 3. Belligerent Nexus B. Law of War Manual C. Duration of Loss of Protection D. Key Differences Between the Law of War Manual and ICRC Guidance IV. APPLICATION OF U.S. AND ICRC STANDARDS FOR DIRECT PARTICIPATION IN HOSTILITIES A. Civilian Support of U.S. Military Operations 1. Background 2. Authority and Guidance B. Factual Scenarios 1. Operation of Remotely-Piloted Aircraft a. Employment of Weapons b. Aerial Surveillance c. Maintenance and Logistics Operations 2. Operations in Cyberspace a. Execution of Cyber Operations b. Installation and Maintenance of Systems Used for Cyber Operations c. Design of Systems Used for Cyber Operations 3. Combat Support Services a. Budget and Finance b. Transportation of Senior Commanders and Weapons c. Public Affairs C. Summary of Conclusions V. RECOMMENDATIONS A. Define Essential Terminology B. Clarify Direct Participation in Hostilities in Cyberspace C. Eliminate Geographic Proximity as a Factor D. Reject (but Account for) the "Revolving Door" VI. CONCLUSION I. INTRODUCTION

   In an armed conflict, international law maintains that "innocent civilians must be kept outside hostilities as far as possible and enjoy general protection against danger arising from hostilities." (1) A number of treaties outline the protection of both the civilian population and individual civilians from the dangers of military operations. (2) However, the protection of civilians is not absolute; it exists only "unless and for such time as they take a direct part in hostilities." (3) In other words, international law distinguishes between the non-combatant civilian trying to survive an armed conflict from the civilian who has decided to participate directly in the armed conflict. Unfortunately, none of the treaties that discuss civilians taking a direct (or active) part in hostilities actually defines what that phrase means.

   In counterterrorism operations throughout the world, the U.S. Department of Defense (DoD) has interpreted "direct participation in hostilities" broadly, targeting not only civilians whose acts are intended to cause "actual harm" to their enemies, but also civilians who engage in acts which represent "an integral part of combat operations," or those that "effectively and substantially contribute" to combat operations." (4) The U.S. position, in many ways, contrasts that of the International Committee of the Red Cross (ICRC), whose narrower view of direct participation in hostilities is limited to conduct that meets a three-part test. The ICRC standard requires the civilian's action to meet a certain threshold of harm, to have a direct causal link to the harm that results from the act, and to be specifically designed to support one belligerent and harm another. (5)

   This article applies the ICRC and U.S. interpretations of direct participation in hostilities to various acts undertaken every day by civilians in support of U.S. military operations. Part II reviews the foundations of international humanitarian law protecting civilians in armed conflict. Part III introduces the concept of direct participation in hostilities, and sets forth both the ICRC and DoD interpretations of that phrase. In Part IV, these standards are applied to various activities performed by civilians in support of U.S. military activities including (1) operators of remotely-piloted aircraft, (2) civilians engaged in military operations in cyberspace, and (3) civilians providing various "combat support services" (6) to the U.S. military. Part IV then examines differences in the ICRC and DoD standards and explores how the nature and timing of the acts, as well as their geographic proximity to the battlefield, may cause civilians to lose their protection from being attacked as a military target.

   The analysis leads to four recommendations, described in Part V. First, both the ICRC and DoD should clarify the terms "integral" and "effective and substantial," respectively, which they use to define direct participation in hostilities. Second, both the DoD and the ICRC need to update and revise, as necessary, their definitions and guidance in order to account for the unique challenges that exist in cyberspace. Third, the DoD should eliminate geographic proximity as a factor for determining when civilians have taken a direct part in hostilities. Finally, the ICRC should reject the "revolving door" principle, the idea that individuals who participate in hostilities on a recurrent basis can "regain protection from attack between their operations." (7) The DoD, which has already rejected the revolving door principle, should specifically address in its Law of War Manual the legal and policy implications of this rejection on civilians who support U.S. military operations.

2. OBLIGATION NOT TO ATTACK CIVILIANS UNLESS THEY TAKE A DIRECT PART

   IN HOSTILITIES

   There is universal agreement among States that civilians must be protected from attack during periods of armed conflict. The four Geneva Conventions of 1949 (8) are the foundational authorities for modern international humanitarian law. During their drafting, "the discussions were dominated by a common horror of the evils caused by [World War II] and a determination to lessen the sufferings of war victims." (9) The Geneva Conventions built upon a growing body of international humanitarian law, including the Hague Conventions of 1907, which included a provision prohibiting the "attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended." (10) But two other multilateral instruments--the 1977 Protocols Additional to the Geneva Conventions, known as Additional Protocol I and Additional Protocol II--detail the modern protections for civilians universally accepted today. (11)

   Additional Protocol I provides detailed protections for victims of international armed conflicts. Additional Protocol I defines international armed conflicts as:

   all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them ... [and] all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. (12) Additional Protocol II provides protection for civilians in non-international armed conflicts, those armed conflicts which are not covered by Additional Protocol I "and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups." (13)

   Article 13 of Additional Protocol II mirrors the first three paragraphs of Article 51 of Additional Protocol I, to wit:

   1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances.

   2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

   3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities. (14)

   This third paragraph, which protects civilians "unless and for such time as they take a direct part in hostilities," (15) is the main focus of this article.

   Though the United States has ratified all four Geneva Conventions, (16) it is not a party to the Additional Protocols. (17) If it was, express requirements protecting civilians "against the dangers arising from military operations" and providing that civilians "shall not be the object of attack ... [or subjected to] [a]cts or threats of violence the primary purpose of which is to spread terror," would apply directly to the United States as a matter of treaty. (18) Nonetheless, the United States is still bound by the Additional Protocol requirements to the extent they represent customary international law. (19)

   A multilateral treaty can lead to the formation of customary international law if the treaty is of a fundamentally "norm-creating character," if it enjoys widespread and representative participation, and if sufficient time has elapsed to allow the customary law to develop. (20) Here, the 1949 Geneva Conventions and the 1977 Additional Protocols are of a fundamentally "norm-creating character" since they impose as their primary obligation a non-derogable human right. Second, they enjoy "a very widespread and representative participation." (21) Every member of the United Nations has ratified or acceded to the 1949 Geneva Conventions, and 174 States have ratified or acceded to Additional Protocol I. (22) Also, at the time of ratification, Article 51 of Additional Protocol I was adopted by 77 votes in favor, one against, and 16 abstentions. (23) Similarly, 168 States have ratified or acceded to Additional Protocol II, (24) Article 13 of which was adopted by consensus. (25) Finally, many decades have passed since the treaties entered into force, while extensive and uniform state practice has shown a general recognition that "States must never make civilians the object of attack." (26) In fact, the International Court of Justice has called that proposition one of the "cardinal principles contained in the texts constituting the fabric of humanitarian law." (27)

   The United States has acknowledged the principle that the civilian population and individual civilians may not be the object of direct attack as customary international law. (28) In 2007, John Bellinger, then U.S. Department of State Legal Advisor, described the recent history of this position, demonstrating...