DIRECT PARTICIPATION IN HOSTILITIES: ICRC INTERPRETIVE GUIDANCE

• “A clear and uniform definition of direct participation in hostilities has not been developed in State practice.”

• Commentary, Rule 6, ICRC Customary International Law Study

The Concept of Civilian

• Those conducting hostilities face the difficult task of distinguishing between civilians who are and civilians who are not engaged in a specific hostile act (direct participation in hostilities), and distinguishing both of these from members of organized armed groups (continuous combat function) and State armed forces. ICRC p. 45.

Civilians in International Armed Conflicts

• For purposes of principle of distinction in IAC, all persons who are neither members of the armed forces of a party to the conflict nor participants in a levee en masse are civilians, and entitled to protection from attack, unless and for such time as they take a direct part in hostilities. ICRC. p.20.

Civilians in Non-International Armed Conflicts

• For purposes of principle of distinction in NIAC, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and entitled to protection against attack unless and for such time as they take a direct part in hostilities. ICRC, p. 27.

Membership in an Organised Armed Group

• Does the person assume a continuous function for the group involving his or her direct participation in hostilities (“continuous combat function”). ICRC, p. 33.

• “Continuous Combat Function” requires lasting integration into an organised armed group. ICRC, p. 34.

• Resemble soldiers of regular armed forces..

Problems with “Function Criterion”

• Members of Organized Armed group who have continuous combat function may be attacked at any time.

• Those who lack “continuous combat function,” but who periodically take up arms, must be treated as civilians directly participating in hostilities – and may only be attacked while doing so. In practice, difficult to distinguish between two categories. Schmitt, Harvard National Security Journal, pp.21-24.

More Problems

• Requirement of “continuous combat function” precludes attack on members of an organized armed group even in face of absolute certainty as to membership. Arguably goes beyond Art. 1 of AP II.

• In contrast, membership in state’s armed forces suffices, even if member isn’t “directly participating” in hostilities. Schmitt, p. 23.

Better Approach?

• Characterize all members of organized armed group as members of armed forces (or as civilians continuously participating)

• Schmitt, p. 24. (Trapp, 8 February)

Concept of Direct Participation in Hostilities

• Notion of Direct Participation in Hostilities refers to specific, hostile acts carried out by individuals as part of conduct of hostilities between parties to armed conflict.

• Interpreted synonymously in IAC and NIAC. ICRC, p. 45.

3 Constitutive (and cumulative) Elements of Direct Participation in Hostilities

• 1. Act must cause harm to military operations or military capacity of party to AC, or to persons or objects protected against attack (threshold of harm).

• 2. A direct causal link between the act and the expected harm (direct causation).

• 3. A belligerent nexus between the act and hostilities conducted between the parties to AC (belligerent nexus). ICRC, p. 46.

Threshold of Harm

• Direct Participant reaches threshold either by causing harm of specifically military nature or by inflicting death, injury, or destruction on persons or objects protected against direct attack.

• Harm does not need to materialize; what’s important is the objective likelihood that act will result in such harm. ICRC, p.47.

“Harm of a Specifically Military Nature”

• Death, injury destruction of military personnel and objects and “any consequence adversely affecting the military operations or military capacity of a party to the conflict.” ICRC, p. 47.

No Direct Participation by Omission

• Refusal of a civilian to collaborate with one party to AC will not reach the required threshold of harm. ICRC, p. 49.

Direct Participation Absent Military Harm

• Acts of violence directed against persons or objects protected against attack qualify as direct participation in hostilities regardless of military harm to opposing party to conflict. ICRC, pp. 49-50.

Direct Causation

• Must be a direct causal link between specific act and harm likely to result from it, or from a coordinated military operation of which that act constitutes an integral part. ICRC, p. 51.

• “The harm in question must be brought about in one causal step.” ICRC, p. 53.

Problem

• “One Causal Step” Requirement would exclude all persons who assemble IEDs in Iraq and Afghanistan from category of “direct participation.”

• Production of weapons is “case-specific” Schmitt, pp. 30 – 31. “Rosie the Riveter” v. IED maker.

General War Effort and War-Sustaining Activities

• Both general war effort and war-sustaining activities may ultimately result in harm reaching threshold required for qualification as direct participation in hostilities.

• But general war effort and war sustaining activities also include activities that merely maintain or build up capacity to cause such harm: excluded from “Direct Participation in Hostilities,” ICRC, pp. 52 - 53.

Direct Causation in Collective Operations

• Where specific act does not on its own directly cause the required threshold of harm,

• Requirement of direct causation still be fulfilled where act constitutes integral part of concrete and coordinated tactical operation that directly causes such harm. ICRC, pp. 54 -55.

• Ex. Identification and marking of targets, transmission of tactical intell. to attacking forces.

Belligerent Nexus

• “Direct Participation in Hostilities” is restricted to specific acts that are so closely related to the hostilities conducted between parties to A.C. that they constitute integral part of conflict. ICRC, p. 58.

• Act must be designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another. ICRC, p. 58. Objective Test, ICRC, p. 59.

Acts that Lack Belligerent Nexus

• Acts in Defence against Violations of IHL• Violent Forms of Civil Unrest to express

dissatisfaction with occupying or detaining authorities

• Inter-civilian violence due to breakdown in law and order

• Violent crime committed for reasons unrelated to armed conflict.

• Stealing of military equipment for private use.

Temporal Scope of Loss of Protection

Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities.

Civilians directly participating in hostilities do not cease to be part of civilian population, but their protection against attack is temporarily suspended. Protected status restored when engagement in hostile act ends. ICRC, pp. 70-71.

Problem

• Interpretive Guidance throws balance between military necessity and humanitarian considerations askew.

• Asymmetrical Warfare (i.e. Iraq/Afghanistan) insurgents mount surprise attacks. IED or land mine attacks occur after insurgents leave area.

• Best option to counter future attacks: target insurgents in their hideouts.

• But ICRC says insurgents safe once they return to their hideouts. Schmitt, p. 38.

Alternative Approach

• Civilian who directly participates in hostilities may be attacked “between episodes of participation.”

• Civilian remains valid military objective until he/she unambiguously opts out of hostilities through extended non-participation or affirmative act of withdrawal. Schmitt, p. 38.

• Q: Who is going to monitor this? How? What does “extended” mean?

Members of Organised Armed Groups

• Members of organized armed groups belonging to a non-State party to conflict cease to be civilians for as long as they remain members due to their “continuous combat function.” ICRC, p. 71.

Precautions and Presumption in Situations of Doubt

• All feasible precautions must be taken in determining whether a person is a civilian and, if so, whether that person is directly participating in hostilities.

• In case of doubt, person must be presumed to be protected against attack. ICRC, p. 74. (Art. 50 of AP I)

Restraints on Use of Force in Attack

- In addition to restraints imposed by IHL on specific means and methods of warfare,

- And without prejudice to further restrictions that may arise under other applicable branches of international law,

- The kind and degree of force permissible against unprotected persons,

- Must not exceed what is actually necessary,- To accomplish legitimate military purpose in prevailing

circumstances. - In other words – If you can capture them – don’t kill them.

ICRC, p. 77.

Israel HCJ, PCATI v. Israel

• A civilian taking direct part in hostilities cannot be attacked if a less harmful means can be employed.

• In conditions of belligerent occupation, arrest, investigation and trial are at times realizable possibilities.

Don’t Defy Basic Notions of Humanity

• While operating forces can hardly be required to take additional risks for themselves or civilians in order to capture armed enemy,

• It would defy basic notions of humanity to kill enemy or refrain from giving him opportunity to surrender where there is “manifestly no necessity” for the use of lethal force. ICRC, p. 82.

Problems• 1. What does this have to do with “Direct Participation in Hostilities?”• 2. Principle of necessity prohibits infliction of suffering, injury or

destruction not necessary for accomplishment of legitimate military purposes.

• 3. But under IHL, attacks are lawful if target is lawful military objective, proportionate, and all feasible precautions taken.

4. ICRC attempts to “squeeze a plainly human rights norm into a restraint on attacks against direct participants under guise of IHL.” Schmitt, p. 41. It imposes a law enforcement paradigm on AC situation. Disregards jurisprudence that, during AC, IHL is lex specialis. Parks, p. 797

5. No “use of force” continuum in IHL. Would be unworkable and lead to more “war crimes.” Parks, pp. 815-818.

6. Depends on single, distinguishable case from Israel.Parks,, 829.