Direct participation in hostilities: operationalizing the International Committee of the Red Cross' guidance.

Author:Melzer, Nils
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 10:45 a.m., Friday, March 27, by its moderator, Jennifer Daskal of Human Rights Watch (currently at the Department of Justice), who introduced the presenter, Ntis Melzer of the International Committee of the Red Cross, and the commentator, Stephen Pomper of the U.S. Department of State. *

THE ICRC's CLARIFICATION PROCESS ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW

  1. INTRODUCTION

    The Issue of Civilian Participation in Hostilities

    The primary aim of international humanitarian law (IHL) is to protect the victims of armed conflict and to regulate the conduct of hostilities based on a balance between military necessity and humanity. At the heart of IHL lies the principle of distinction between combatants, who conduct the hostilities on behalf of the parties to an armed conflict, and civilians, who are presumed not to participate directly in hostilities and must be protected against the dangers arising from military operations. Throughout history, the civilian population has always contributed to the general war effort of parties to armed conflicts, for example, through the production and supply of weapons, equipment, food, and shelter, or through economic, administrative, and political support. However, such activities typically remained distant from the battlefield and, traditionally, only a small minority of civilians became involved in actual combat.

    Recent decades have seen this pattern change significantly. A continued shift of the battlefield into civilian population centers has led to an increased intermingling of civilians with armed actors and has facilitated their involvement in activities more closely related to military operations. Even more recently, the increased outsourcing of traditionally military functions has inserted numerous private contractors, civilian intelligence personnel, and other civilian government employees into the reality of armed conflict.

    These aspects of contemporary warfare have given rise to confusion and uncertainty as to the distinction between legitimate military targets and persons protected against direct attacks.

    These difficulties are aggravated where armed actors do not distinguish themselves from the civilian population, for example, during undercover military operations or when acting as farmers by day and fighters by night. As a result, civilians are more likely to fall victim to erroneous or arbitrary targeting, while armed forces--unable to properly identify their adversary--run an increased risk of being attacked by persons they cannot distinguish from the civilian population.

    Resulting Legal Questions

    This trend underlines the importance of distinguishing not only between civilians and the armed forces, but also between civilians who do and, respectively, do not directly participate in hostilities. In IHL, the notion of direct participation in hostilities refers to conduct which, if carried out by civilians, suspends their protection against the dangers arising from military operations. (1) Most notably, for the duration of their direct participation in hostilities, civilians may be directly attacked as if they were combatants. Derived from Article 3 common to the Geneva Conventions of 1949 ("GC"), the notion of taking a direct or active part in hostilities is found in many provisions of IHL. Despite the serious legal consequences involved, however, treaty IHL does not provide a definition of direct participation in hostilities, nor can a clear interpretation of the notion be derived from state practice, international jurisprudence, or legal and military doctrine. This situation calls for the clarification of three questions under IHL applicable in both international and non-international armed conflict:

    * Who is a civilian for the purposes of the principle of distinction? The answer to this question determines the circle of persons who are protected against direct attack unless, and for such time, as they directly participate in hostilities.

    * What conduct amounts to direct participation in hostilities? The answer to this question determines the individual conduct that leads to the suspension of a civilian's protection against direct attack.

    * What modalities govern the loss of protection against direct attack? The answer to this question will elucidate issues such as the duration of the loss of protection against direct attack, the precautions and presumptions in situations of doubt, the rules and principles governing the use of force against legitimate military targets, and the consequences of regaining protection against direct attack.

    The International Committee of the Red Cross' (ICRC) Clarification Process

    It was with the aim of clarifying the answers to these three questions that the ICRC, in cooperation with the TMC Asser Institute, initiated an informal expert process in 2003. Five expert meetings were held in The Hague and in Geneva between 2003 and 2008; each meeting brought together forty to fifty legal experts from military, governmental, and academic circles as well as from international and non-governmental organizations, all of whom attended in their personal capacity. (2) The process focused on interpreting the notion of direct participation in hostilities for the purposes of the conduct of hostilities only and did not, or only very marginally, addressed the legal regime applicable in the event of capture or detention of persons having directly participated in hostilities. Also, while the process examined the above mentioned questions exclusively under IHL, the conclusions reached remain without prejudice to an analysis of questions raised by civilian participation in hostilities under other applicable branches of international law such as human rights law or the UN Charter (jus ad bellum).

    Based on the discussions held and the research conducted in the course of the expert process, the ICRC drafted its "Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL" ("Interpretive Guidance"). (3) This document does not necessarily reflect a unanimous or majority opinion of the participating experts on the questions addressed, but provides the ICRC's recommendations as to how IHL relating to the notion of direct participation in hostilities should be interpreted in light of the circumstances prevailing in contemporary armed conflicts. (4) In doing so, the Interpretive Guidance does not endeavor to change or amend existing rules of IHL, but to ensure their coherent interpretation in line with the fundamental principles underlying IHL as a whole. While the Interpretive Guidance is not legally binding, it may be hoped that the careful and balanced analysis underlying its recommendations will be persuasive to states, non-state actors, practitioners, and academics alike. While the following sections aim to provide a broad overview of the substantive conclusions reached in the Interpretive Guidance, they cannot replace a careful study of its full text.

  2. WHO IS A CIVILIAN FOR THE PURPOSES OF THE PRINCIPLE OF DISTINCTION? (5)

    With regard to the question of who qualifies as a civilian during the conduct of hostilities, it is important to distinguish members of state armed forces or of organized armed groups (whose continuous function it is to conduct hostilities on behalf of a party to an armed conflict) from civilians (who do not directly participate in hostilities, or who do so on a merely spontaneous, sporadic, or unorganized basis). For the purposes of the principle of distinction, only the latter qualify as civilians entitled to protection against direct attack unless, and for such time, as they take a direct part in hostilities.

    International Armed Conflict

    Treaty law governing international armed conflict defines civilians negatively as all persons who are neither members of the armed forces of a party to the conflict nor participants in a levee en masse. (6) The armed forces of a party to the conflict comprise all organized armed forces, groups, and units that operate de facto under a command responsible to that party, regardless of their denomination in domestic law. (7) Even members of irregular armed forces, such as organized resistance movements and other militia or volunteer corps whose conduct is attributable to a party to a conflict, are considered part of its armed forces. For the purposes of the conduct of hostilities, they are not deemed civilians but legitimate military targets, even if they do not distinguish themselves from the civilian population or otherwise fail to fulfil the criteria required by IHL for combatant privilege and prisoner of war status.

    Participants in a levee en masse are the 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 IHL. According to a longstanding rule of customary and treaty IHL, participants in a levee en masse are entitled to combatant privilege and prisoner of war status. (8) They are the only armed actors who are not regarded as civilians although, by definition, they operate spontaneously and lack sufficient organization and command to qualify as members of the armed forces. All other persons who directly participate in hostilities on a merely spontaneous, sporadic, or unorganized basis must be regarded as civilians.

    Non-international Armed Conflict

    Treaty IHL...

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