The Doctrine of Direct Participation in Hostilities International treaties, including the 1949 Geneva Conventions and later updates, establish the protections for civilians during war. 248. 1. The treaty terminology of taking a direct part in hostilities, which describes civilian conduct entailing loss of protection against direct attack, implies that there can also be indirect participation in hostilities, which does not lead to such loss of protection. they participate. Nevertheless, depending on the circumstances, the armed or police forces of the government may be able to capture that commander without resorting to lethal force. The Concept of Civilian. actual harm to the personnel and equipment of the enemy armed forces.); Prosecutor v. Musema, Case No. 2. More precisely, where a specific act does not on its own directly cause the required threshold of harm, the requirement of direct causation would still be fulfilled where the act constitutes an integral part of a concrete and coordinated tactical operation that directly causes such harm. Obligation to respect international humanitarian law. 245. The present text interprets the notion of direct participation in hostilities for the purposes of the conduct of hostilities only. 4, at 5.8.4 (discussing the duration for which a civilian in DPH is subject to attack),; HCJ 769/02 Public Committee Against Torture v. Government of Israel para. In most cases, however, it would be reasonably possible for the armed forces to remove the physical obstacle posed by these civilians through means less harmful than a direct military attack on them. At the same time, the conduct of a civilian cannot be interpreted as adversely affecting the military operations or military capacity of a party to the conflict simply because it fails to positively affect them. Membership in irregularly constituted militia and volunteer corps, including organized resistance movements, belonging to a party to the conflict must be determined based on the same functional criteria that apply to organized armed groups in non-international armed conflict. Likewise, the examples offered throughout the Interpretive Guidance are not absolute statements on the legal qualification of a particular situation or conduct, but must be read in good faith, within the precise context in which they are mentioned and in accordance with generally recognized rules and principles of IHL. This does not rule out the possibility that, for purposes other than the conduct of hostilities, domestic law might regulate the status of private contractors and employees differently from IHL. The phenomenon of civilians taking part in hostilities occurs in all war situations. Such reservists are civilians until and for such time as they are called back to active duty. Civilians are playing an increasingly decisive role in determining the outcome of wars. 264. For a specific act to qualify as direct rather than indirect participation in hostilities there must be a sufficiently close causal relation between the act and the resulting harm. Not every act that directly adversely affects the military operations or military capacity of a party to an armed conflict or directly inflicts death, injury, or destruction on persons and objects protected against direct attack necessarily amounts to direct participation in hostilities. Instead, where individuals go beyond spontaneous, sporadic, or unorganized direct participation in hostilities and become members of an organized armed group belonging to a party to the conflict, IHL deprives them of protection against direct attack for as long as they remain members of that group. Further, large numbers of unarmed civilians who deliberately gather on a bridge in order to prevent the passage of governmental ground forces in pursuit of an insurgent group would probably have to be regarded as directly participating in hostilities. As a result, the infliction of death, injury, or destruction by civilians on persons or objects that have fallen into their hands or power within the meaning of IHL does not, without more, constitute part of the hostilities. It endeavours to propose a balanced and practical solution that takes into account the wide variety of concerns involved and, at the same time, ensures a clear and coherent interpretation of the law consistent with the purposes and principles of IHL. The lawfulness of an attack on civilians depends on their own conduct in hostilities, and hinges on the principle of "direct participation in hostilities". At the heart of IHL lies the principle of distinction between the armed forces, who conduct the hostilities on behalf of the parties to an armed conflict, and civilians, who are presumed not to directly participate in hostilities and must be protected against the dangers arising from military operations. Most notably, for the duration of their direct participation in hostilities, civilians may be directly attacked as if they were combatants. At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Article 51 of Additional Protocol I was so essential that it . or injury to a person or property; rather, the act must be committed with In one case, affiliation may turn on individual choice, in another on involuntary recruitment, and in yet another on more traditional notions of clan or family. semi-military status, a soldier by night and peaceful citizen by day, also disappears.). The purpose of the Interpretive Guidance is to provide recommendations concerning the interpretation of international humanitarian law (IHL) as far as it relates to the notion of direct participation in hostilities. so, as a consequenc e, it is only relevant and applic able in . hostilities.245 Hostile acts are acts which by their nature and purpose Three key areas have traditionally been associated with the analysis of direct participation in hostilities ('dph'): civilian legal status, what behaviour amounts . GC/III, see chapter Section I: Outer Space, fn. Examples of this have been observed in recent years during, It is concluded that because of intention of voluntary human shield, they can be considered as direct participation and involuntary human shields are not direct participants in, A civilian government employee or private contractor defending military personnel or military objectives from enemy attack direcdy participates in hostilities.. His or, It should already be obvious that proposals to completely ban such use are not, in the opinion of this author, the answer. 5.8.1.1 "Active" V. ersus "Direct". 278. Where treaty law refers to hostilities, that notion is intrinsically linked to situations of international or non-international armed conflict. equipped by such a group to continuously and directly participate in hostilities on its Moreover, for the requirement of direct causation to be met, it is neither necessary nor sufficient that the act be indispensable to the causation of harm. The required standard of direct causation of harm must take into account the collective nature and complexity of contemporary military operations. It prevents attacks on civilians who do not, at the time, represent a military threat. These determinations must be based on the information reasonably available to the person called on to make the determination, but they must always be deduced from objectively verifiable factors. it does not follow that any such person must necessarily be excluded from the category of armed forces and regarded as a civilian for the purposes of the conduct of hostilities. 1. Civilians directly participating in hostilities do not cease to be part of the civilian population, but their protection against direct attack is temporarily suspended. In order for the requirement of direct causation to be satisfied, there must be a direct causal link between a specific act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part. Critics of a narrow interpretation of DPH believe it creates a revolving Voluntary human shields: The same logic applies to civilians attempting to shield a military objective by their presence as persons entitled to protection against direct attack (voluntary human shields). accompanying protections.251 These civilians do not attain combatant Private contractors and civilian employees who are neither members of State armed forces nor members of organized armed groups, however, must be regarded as civilians and, therefore, are protected against direct attack unless and for such time as they directly participate in hostilities. 277. Kretzmer, supra note 53, at 190 (Under the In the absence of such military harm, however, a specific act must be likely to cause at least death, injury, or destruction. In view of the wide variety of cultural, political, and military contexts in which organized armed groups operate, there may be various degrees of affiliation with such groups that do not necessarily amount to membership within the meaning of IHL. This analysis would change, of course, if civilians block a road in order to facilitate the withdrawal of insurgent forces by delaying the arrival of governmental armed forces (or vice versa). By Ashley Deeks. Recall In view of the severe consequences of DPH the decision on whether an activity qualifies as DPH should be based on reasonably reliable information. According to Additional Protocol I (AP I), in situations of international armed conflict, civilians are defined negatively as all persons who are neither members of the armed forces of a party to the conflict nor participants in a leve en masse. While treaty IHL predating Additional Protocol I does not expressly define civilians, the terminology used in the Hague Regulations (HR IV) and the four Geneva Conventions (GC I-IV) nevertheless suggests that the concepts of civilian, of armed forces, and of leve en masse are mutually exclusive, and that every person involved in, or affected by, the conduct of hostilities falls into one of these three categories. Those conducting hostilities already 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. and political support.); Targeted Killings Report, supra note 16, 64 (These criteria You can also search for this author in Driving an ammunition truck: The delivery by a civilian truck driver of ammunition to an active firing position at the front line would almost certainly have to be regarded as an integral part of ongoing combat operations and, therefore, as direct participation in hostilities. Moreover, its users were aware of that purpose and intended to fulfill it. That determination must be made with utmost care and based on a reasonable evaluation of the prevailing circumstances. In view of the serious consequences for the individuals concerned, the present chapter endeavours to clarify the precise modalities that govern such loss of protection under IHL. In treaty IHL, individual conduct that constitutes part of the hostilities is described as direct participation in hostilities, regardless of whether the individual is a civilian or a member of the armed forces. ICRCCOMMENTARY, supra note 81, 1677, at 515. Whether private contractors and employees of a party to the conflict qualify as civilians within the meaning of IHL and whether they directly participate in hostilities depends on the same criteria as are applicable to any other civilian. As soon as it becomes apparent that the targeted person is entitled to civilian protection, those responsible must refrain from launching the attack, or cancel or suspend it if it is already underway. Instead, the presence of civilians around the targeted objective may shift the parameters of the proportionality assessment to the detriment of the attacker, thus increasing the probability that the expected incidental harm would have to be regarded as excessive in relation to the anticipated military advantage. 56 The way forward here may well have to be through progress in the debate on the status of individuals during non-international armed conflicts, the issue of the direct participation of civilians in hostilities, and the . 262. Synopsis. As Dapo pointed out, talking about these matters without knowing all the . b) Article 3 common to the Geneva Conventions. Persons who are authorized to accompany the armed forces without actually being members thereof, but participate directly in hostilities, are subject to attack by the enemy. This will be used to analyse traffic to the website, allowing us to understand visitor preferences and improving our services. By contrast, civilians who engage in activities that do not have an objective purpose of affecting military operations or capabilities are not direct participants in hostilities. In 1864, when the First Geneva Convention was adopted, armies faced off on battlefields with clearly drawn frontlines. Although they are thus entitled to protection against direct attack, their proximity to the armed forces and other military objectives may expose them more than other civilians to the dangers arising from military operations, including the risk of incidental death or injury. The central question was whether children were "taking direct/active part in hostilities at the time they were victims of acts of rape and/or sexual . Id. Today, more than ever, it is of the utmost importance that all feasible measures be taken to prevent the exposure of the civilian population to erroneous or arbitrary targeting based, among other things, on reliable guidance as to how to the principle of distinction should be implemented in the challenging and complex circumstances of contemporary warfare. Eng/exe.htm ([O]nce a person qualifies as a combatant, whether regular or irregular, the harm and the act, and a belligerent nexus.261 The first element, the. 15 f.). Thus, individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function. . bring about the materialization of the required harm, the general war effort and war sustaining activities also include activities that merely maintain or build up the capacity to cause such harm. Particular difficulties related to private contractors and civilian employees. [Footnote: While the prevailing opinion during the 2006 expert meeting was supportive of this interpretation, some concerns were expressed that this approach could be misunderstood as creating a category of persons protected neither by GC III nor by GC IV (Report DPH 2006, pp. Additionally, it draws on the wealth of materials produced in the course of an expert process, jointly initiated by the ICRC and the TMC Asser Institute with the aim of clarifying the notion of direct participation in hostilities under IHL. supra note 87, 99 (However, if civilians take a direct part in the hostilities, they then as doing something) in any meaningful sense and, therefore, remain protected against direct attack despite the belligerent nexus of the military operation in which they are being instrumentalized. 75 AP I, which have attained customary nature and, subject to the nationality requirements of Art. . It is the purpose of the present chapter to identify the criteria that determine whether and, if so, for how long a particular conduct amounts to direct participation in hostilities. One theme of Ben Emmerson's interim report on remotely piloted aircraft and targeted killings is that governments must be more transparent with regard to any civilian deaths they cause. Whatever criteria are applied in implementing the principle of distinction in a particular context, they must allow to reliably distinguish members of the armed forces of a non-State party to the conflict from civilians who do not directly participate in hostilities, or who do so on a merely spontaneous, sporadic or unorganized basis. 3. the act must be specifically designed to directly cause the required threshold the following rationale: the prohibition against targeting a civilian who of its analysis of the legality of Israels targeted killing policy.274 Israel 267. However, unlike the conduct of hostilities, which is designed to cause i.e. In addition to the 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 which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances. 51(2); Israel Case, Most notably, for the duration of their direct participation in hostilities, civilians may be directly attacked as if they were combatants. Only State agreements (treaties) or State practice followed out of a sense of legal obligation on a certain issue (custom) can produce binding law. The great majority of private contractors and civilian employees currently active in armed conflicts have not been incorporated into State armed forces and assume functions that clearly do not involve their direct participation in hostilities on behalf of a party to the conflict (i.e. If individual self-defence against prohibited violence were to entail loss of protection against direct attack, this would have the absurd consequence of legitimizing a previously unlawful attack. Anyone you share the following link with will be able to read this content: Sorry, a shareable link is not currently available for this article. 247. the context o f an international or non-international armed . The phrases " active. When an act may reasonably be expected to cause harm of a specifically military nature, the threshold requirement will generally be satisfied regardless of quantitative gravity. . However, the precise duration of the timeframe involved is a matter of some controversy (particularly in "revolving door" situations). This relationship may be officially declared, but may also be expressed through tacit agreement or conclusive behaviour that makes clear for which party the group is fighting. The notion of direct participation in hostilities must therefore be interpreted in good faith in accordance with the ordinary meaning to be given to its constituent terms in their context and in light of the object and purpose of IHL. result either from that act, or from a coordinated military operation of Popular in Direct Participation in Hostilities A Follow-Up on Israel and Gaza. Under LOAC, alternatively called the law of war or International Humanitarian Law (IHL), civilians are protected from attack by parties to a conflict. Conversely, transporting bombs from a factory to an airfield storage place and then to an airplane for shipment to another storehouse in the conflict zone for unspecified use in the future would constitute a general preparatory measure qualifying as mere indirect participation. Similarly, the military operations of a party to a conflict can be directly and adversely affected when roads leading to a strategically important area are blocked by large groups of refugees or other fleeing civilians. Therefore, the use of necessary and proportionate force in such situations cannot be regarded as direct participation in hostilities. of whether the conflict is international or non-international. It also provides that civilians may not be the object of deliberate attack. What is the status of private contractors and civilian employees? The constitutive elements address the issue of whether an act by a civilian in hostilties amounts to direct participation, such that he or she loses protection from attack. Second, while reflecting the ICRCs views, the Interpretive Guidance is not and cannot be a text of a legally binding nature. This determination must be made in good faith and in view of all information that can be said to be reasonably available in the specific situation. In addition to the restraints imposed by international humanitarian law 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 which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances. Scribd is the world's largest social reading and publishing site. no continuous combat function). There can be no doubt that civilians directly participating in hostilities must respect the rules of IHL, including those on the conduct of hostilities, and may be held responsible for war crimes just like members of State armed forces or organized armed groups. Section VII: Civilians Directly Participating in Hostilities. Israel defended its actions by claiming that most of . RESEARCH SERV., DEPARTMENT OF DEFENSE CONTRACTORS IN IRAQ AND AFGHANISTAN: BACKGROUND AND ANALYSIS 5 . Civilian direct participation in hostilities is an IHL notion, and . for hostilities, participate in planning a hostile act, or, as a member of a 20 10 5 ,0 00 INTERPRETIVE guIdaNcE oN ThE NoTIoN of Direct participation in hostilities uNdER INTERNaTIoNal humaNITaRIaN law nils Melzer, legal adviser, Indeed, although the presence of voluntary human shields may eventually lead to the cancellation or suspension of an operation by the attacker, the causal relation between their conduct and the resulting harm remains indirect. As the wording and logic of Article 3 GC I-IV and Additional Protocol II (AP II) reveals, civilians, armed forces, and organized armed groups of the parties to the conflict are mutually exclusive categories also in non-international armed conflict. By presenting this Interpretive Guidance, the ICRC hopes to make a contribution to ensuring that those who do not take a direct part in hostilities receive the humanitarian protection that they are entitled to under international humanitarian law. ], b) Meaning and significance of belonging to a party to the conflict. In case of doubt, a person shall be protected against a direct attack. terrorist attacks does not imply that a civilian has directly participated in When civilians cease to directly participate in hostilities, or when members of organized armed groups belonging to a non-State party to an armed conflict cease to assume their continuous combat function, they regain full civilian protection against direct attack, but are not exempted from prosecution for violations of domestic and international law they may have committed. In practice, civilian direct participation in hostilities is likely to entail significant confusion and uncertainty in the implementation of the principle of distinction. They can only illustrate the principles based on which the relevant distinctions ought to be made, but cannot replace a careful assessment of the concrete circumstances prevailing at the relevant time and place. Participants in a leve en masse are the only armed actors who are excluded from the civilian population although, by definition, they operate spontaneously and lack sufficient organization and command to qualify as members of the armed forces. The rule on direct participation in hostilities has been addressed in the ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law.Footnote 3 The content of the Interpretive Guidance has been contested by many commentators. Where the concepts of civilian and armed forces are defined for the purpose of the conduct of hostilities, the relevant standards must be derived from IHL. Instead, they remain civilians assuming support functions, similar to private contractors and civilian employees accompanying State armed forces. MOSHE SCHWARTZ, CONG. DPH requires that the civilians act must be done with the intention of Instead, the distinction between direct and indirect participation in hostilities must be interpreted as corresponding to that between direct and indirect causation of harm. However, they would not, in the absence of adverse military effects, cause the kind and degree of harm required to qualify as direct participation in hostilities. Excluded from the concept of direct participation in hostilities is not only the lawful exercise of administrative, judicial or disciplinary authority on behalf of a party to the conflict, but even the perpetration of war crimes or other violations of IHL outside the conduct of hostilities. Until the civilian in question again engages in a specific act of direct participation in hostilities, the use of force against him or her must comply with the standards of law enforcement or individual self-defence. Civilians in Non-International Armed Conflicts For purposes of principle of distinction in NIAC, all persons who are not members of State armed forcesor 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. Although Article 3 GC I-IV generally is not considered to govern the conduct of hostilities, its wording allows certain conclusions to be drawn with regard to the generic distinction between the armed forces and the civilian population in non-international armed conflict. in hostilities. For example, the line between the defence of military personnel and other military objectives against enemy attacks (direct participation in hostilities) and the protection of those same persons and objects against crime or violence unrelated to the hostilities (law enforcement / defence of self or others) may be thin. Members of regularly constituted forces are not civilians, regardless of their individual conduct or of the function they assume within the armed forces. the armed group and depends on the individuals continuous function.279 As an objective criterion linked to the act alone, belligerent nexus is generally not influenced by factors such as personal distress or preferences, or by the mental ability or willingness of persons to assume responsibility for their conduct. (noting that the concept farmer by day, fighter by night is founded on the idea that [a], person . For the purposes of the principle of distinction in non-international armed conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. terrorist group, participate in a chain of hostilities.277 This decision, 13, International Review of the Red Cross, 2008, No. It is therefore particularly important in this context to observe the general rules of IHL on precautions and presumptions in situations of doubt. Part of Springer Nature. 272. 1. Treaty IHL does not define direct participation in hostilities, nor does a clear interpretation of the concept emerge from State practice or international jurisprudence. supra note 19, para. indeed, the distinction between a person . According to Additional Protocol I, the armed forces of a party to the conflict comprise all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates. benefiting one party of the armed conflict at the other partys detriment.265 Belligerent nexus is most likely to exist where inter-civilian violence is motivated by the same political disputes or ethnic hatred that underlie the surrounding armed conflict and where it causes harm of a specifically military nature. the general war effort of parties to armed conflicts, for example through the production Organized armed groups operating within the broader context of an international armed conflict without belonging to a party to that conflict could still be regarded as parties to a separate non-international armed conflict provided that the violence reaches the required threshold. In classic large-scale confrontations between well-equipped and organized armed forces or groups, the principles of military necessity and of humanity are unlikely to restrict the use of force against legitimate military targets beyond what is already required by specific provisions of IHL.

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