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The International Committee of the Red Cross’ ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities’: See a Little Light
Abstract
Over the past 150 years, the International Committee of the Red Cross (ICRC) has been one of the main drivers of progressive development in international humanitarian law, whilst assuming various roles in the humanization of the laws of war. With select contributions from international experts, this book critically assesses the ICRC's unique influence in international norm creation. It provides a detailed analysis of the workings of the International Red Cross, Red Crescent Movement and ICRC by addressing the milestone achievements as well as the failures, shortcomings and controversies over time. Crucially, the contributions highlight the lessons to be learnt for future challenges in the development of international humanitarian law. This book will be of particular interest to scholars and students of international law, but also to practitioners working in the field of international humanitarian law at both governmental and non-governmental organizations.
... 14- 91 These articles support the conclusion that the principle of military necessity only permits departure from prohibitive rules if the rules foresee such a possibility. 92 The role of the principle of military necessity in situations not explicitly covered by rules of positive IHL remains a subject of debate 93 and practical relevance, e.g. with respect to the legal basis for detention in NIAC, as illustrated above. Some argue that the principle is not limited to rules of positive law specifically foreseeing its application, but may serve as an independent rule -either as customary law or as a general principle of law within the meaning of Art. ...
... The first of these safeguards is the duty to notify the Secretary-General of the Council of Europe of the measures which are taken and the reasons thereof. 92 The Grand Chamber of the ECtHR interpreted Art. 15 ECHR in the case of A and Others v the United Kingdom (1998) in the way that it allows States 'a wide margin of appreciation to decide on the nature and scope of the derogating measures necessary to avert the emergency.' At the same time, the Court stated that 'it is ultimately for the Court to rule whether the measures were "strictly required"'. ...
... 91 Even if one would apply certain customary IHRL to non-State actors, a number of difficulties would arise when applying such rules to them. 92 Neither the UN SC nor other bodies have yet clearly referenced the legal source of the proclaimed human rights obligations for OAGs, leaving it unclear why these actors should be bound in the first place. 93 As far as human rights obligations are already contained within the basic protection offered by CA 3, they only serve as a complementary protection regime under IHL. ...
... 107 Comparative research should thus continue regarding the politics of contestation surrounding the many recent and ongoing efforts non-codification IHL-making. 108 In terms of ICRC-led initiatives, another critical case exists in the Interpretive Guidance on the Notion of Direct Participation in Hostilities, 109 and in the revised commentaries on the four Geneva Conventions and the APs. We may also further witness the 'unilateralization' of IHL-making by states, 110 including through the publication of national military manuals that rephrase IHL in ways that 102 ...
From 1864 to the 1970s, international humanitarian law (IHL) changed through the path of formal treaty revision. Since 1977, however, purported changes to IHL have come not from treaty making but from interpretation, particularly through claims about the attainment of customary status by existing treaty rules. This article explains this shift as the result of the attitudes and choices of key IHL stakeholders under the changed conditions of post-Second World War multilateralism. It argues that the turn toward customary law claims-making was a reaction to the negotiation politics and contested outcomes of the 1977 Additional Protocols (APs) to the Geneva Conventions. After 1977, leading actors looked to custom as a means of arresting or encouraging legal change. The resulting, much-expanded IHL has proved influential and authoritative, even if its precise degree of acceptance by states remains unclear.
Interdisciplinary Perspectives on International Law and International Relations: The State of the Art brings together the most influential contemporary writers in the fields of international law and international relations to take stock of what we know about the making, interpretation and enforcement of international law. The contributions to this volume critically explore what recent interdisciplinary work reveals about the design and workings of international institutions, the various roles played by international and domestic courts, and the factors that enhance compliance with international law. The volume also explores how interdisciplinary work has advanced theoretical understandings of the causes and consequences of the increased legalization of international affairs.
Friedrich Kratochwil's book explores the role of law in the international arena and the key discourses surrounding it. It explains the increased importance of law for politics, from law-fare to the judicialization of politics, to human rights, and why traditional expectations of progress through law have led to disappointment. Providing an overview of the debates in legal theory, philosophy, international law and international organizations, Kratochwil reflects on the need to break down disciplinary boundaries and address important issues in both international relations and international law, including deformalization, fragmentation, the role of legal pluralism, the emergence of autonomous autopoietic systems and the appearance of non-territorial forms of empire. He argues that the pretensions of a positivist theory in social science and of positivism in law are inappropriate for understanding practical problems and formulates an approach for the analysis of praxis based on constructivism and pragmatism.
International courts and judicial bodies play a formative role in the development of international humanitarian law. Judges, Law and War examines how judicial bodies have influenced the substantive rules and principles of the law of armed conflict, and studies the creation, application and enforcement of this corpus of laws. Specifically, it considers how international courts have authoritatively addressed the meaning and scope of particular rules, the application of humanitarian law treaties and the customary status of specific norms. Key concepts include armed conflicts and protected persons, guiding principles, fundamental guarantees, means and methods of warfare, enforcement and war crimes. Consideration is also given to the contemporary place of judicial bodies in the international law-making process, the challenges presented by judicial creativity and the role of customary international law in the development of humanitarian law.
This book is a comprehensive analysis of the lawfulness of state-sponsored targeted killings under international human rights and humanitarian law. It examines treaties, custom, and general principles of law to determine two distinct normative paradigms which govern the intentional use of lethal force against selected individuals in law enforcement and the conduct of hostilities. It also addresses the relevance of the law of interstate force to targeted killings, and the interrelation of the various normative frameworks which may simultaneously apply to operations involving the use of lethal force. The book shows in what circumstances targeted killings may be considered as internationally lawful. The practical relevance of the various conditions and modalities are illustrated by reference to concrete examples of targeted killing from recent state practice. The book argues that any targeted killing not directed against a legitimate military target remains subject to the law enforcement paradigm, which imposes extensive restraints on the practice. Even under the paradigm of hostilities, no person can be lawfully liquidated without further considerations. As a form of individualized or surgical warfare, the method of targeted killing requires a 'microscopic' interpretation of the law regulating the conduct of hostilities which leads to nuanced results reflecting the fundamental principles underlying international humanitarian law. It concludes by highlighting and comparing the main areas of concern arising with regard to state-sponsored targeted killing, and by placing the results of the analysis in the greater context of the rule of law.
The Tokyo International Military Tribunal (IMT) (1946-1948) is a neglected topic in the literature on post-war international criminal law. Condemned by its critics as 'Victors' Justice' and expediently forgotten by its erstwhile supporters, it is commonly thought by those who recall it at all that it was little more (and probably less) than a footnote to the International Military Tribunal at Nuremberg. This work seeks to dispel this widely held belief by showing the way the Tokyo Tribunal was both similar to and different from its Nuremberg counterpart, the extent to which the critiques of the Tokyo IMT have purchase, and the Tribunal's contemporary relevance. The book also shows how the Tokyo Tribunal needs to be approached not as a monolithic entity, but as being made up of many different and often contradictory parts. The prosecution, defence, and judicial arms of the tribunal both differed with each other on many points of procedure, law, and fact, but also differed inter se, and the book shows how these differences had an impact on the proceedings. It is a comprehensive legal analysis of the Tokyo IMT, covering its law, theory, and practice and the lessons it may teach those formulating, prosecuting, and defending international crimes today. It also places the trial in its political and historical context. The work is based in part on extensive archival research undertaken by the authors.
The past two decades have witnessed the rapid proliferation of private military and security companies (PMSCs) in armed conflicts around the world, with PMSCs participating in, for example, offensive combat, prisoner interrogation and the provision of advice and training. The extensive outsourcing of military and security activities has challenged conventional conceptions of the state as the primary holder of coercive power and raised concerns about the reduction in state control over the use of violence. Hannah Tonkin critically analyses the international obligations on three key states – the hiring state, the home state and the host state of a PMSC – and identifies the circumstances in which PMSC misconduct may give rise to state responsibility. This analysis will facilitate the assessment of state responsibility in cases of PMSC misconduct and set standards to guide states in developing their domestic laws and policies on private security.
Customary International Humanitarian Law, Volume I: Rules is a comprehensive analysis of the customary rules of international humanitarian law applicable in international and non-international armed conflicts. In the absence of ratifications of important treaties in this area, this is clearly a publication of major importance, carried out at the express request of the international community. In so doing, this study identifies the common core of international humanitarian law binding on all parties to all armed conflicts.
A growing number of states use private military and security companies (PMSCs) for a variety of tasks, which were traditionally fulfilled by soldiers. This book provides a comprehensive analysis of the law that applies to PMSCs active in situations of armed conflict, focusing on international humanitarian law. It examines the limits in international law on how states may use private actors, taking the debate beyond the question of whether PMSCs are mercenaries. The authors delve into issues such as how PMSCs are bound by humanitarian law, whether their staff are civilians or combatants, and how the use of force in self-defence relates to direct participation in hostilities, a key issue for an industry that operates by exploiting the right to use force in self-defence. Throughout, the authors identify how existing legal obligations, including under state and individual criminal responsibility should play a role in the regulation of the industry.
The war on terror is remaking conventional warfare. The protracted battle against a non-state organization, the demise of the confinement of hostilities to an identifiable battlefield, the extensive involvement of civilian combatants, and the development of new and more precise military technologies have all conspired to require a rethinking of the law and morality of war. Just war theory, as traditionally articulated, seems ill-suited to justify many of the practices of the war on terror. The raid against Osama Bin Laden's Pakistani compound was the highest profile example of this strategy, but the issues raised by this technique cast a far broader net: every week the U.S. military and CIA launch remotely piloted drones to track suspected terrorists in hopes of launching a missile strike against them. In addition to the public condemnation that these attacks have generated in some countries, the legal and moral basis for the use of this technique is problematic. Is the U.S. government correct that nations attacked by terrorists have the right to respond in self-defense by targeting specific terrorists for summary killing? Is there a limit to who can legitimately be placed on the list? There is also widespread disagreement about whether suspected terrorists should be considered combatants subject to the risk of lawful killing under the laws of war or civilians protected by international humanitarian law. Complicating the moral and legal calculus is the fact that innocent bystanders are often killed or injured in these attacks. It discusses all aspects of targeted killing.
The texts of international law cannot talk - they are talked about. They passively submit to the need for interpretation and gain meaning in their use. Contrary to classic and still pervasive narrative suggesting that sovereign states make the law that constraints them, the book shows that in many and most constellations the contents of legal commitments is the product interpretation which shifts meanings and makes law. In the practice of interpretation actors compete over what the law really says and contribute to its making. What then matters in such discourse is an actor's semantic authority - the capacity to find acceptance for interpretative claims and the ability to establish new reference points for legal discourse. The book identifies the practice of interpretation as a significant space of international lawmaking and draws specific attention to the increasing weight of international institutions in the struggle for the law. Past theoretical approaches come down with significant shortcomings in understanding interpretation as a bounded practice that has both the capacity to create as well as the faculty to control. The book leans on developments in linguistics and builds on semantic pragmatism to overcome old divides and to offer a fresh account of how the practice of interpretation makes international law. Its analytical ambition is paralleled by a discussion of the strong normative implications that immediately arise once received understandings of interpretation and sources doctrine are debunked as myopic and powerless in relation to semantic changes. The book thus closes with a discussion of the bittersweet taste of justice in legal argument, tests the potential of international law and its doctrine to respond to semantic change, and ultimately ponders the possibilities of democratic justification of semantic authority in a normative pluriverse.
The book distils and articulates international law as a social construct. It does so by analysing its social foundations, essence, and roots in practical and socially workable (as opposed to 'pure') reason. In addition to well-known doctrines of jurisprudence and international law, it draws upon psycho-analytic insights into the origins and nature of law, as well as philosophical social constructivism. The work suggests that seeing law as a social construct is crucial to our understanding of international law and to the struggle to create better working rules. The book re-conceptualizes both past and new doctrines of international law as 'constructs', namely, as strategies of concomitantly de-mythologizing and re-mythologizing international law. Key areas of international law, including subjects, sources, hierarchy, values, and remedies, are shown to be part of this process. The social impact on international law of transnational actors and stakeholders, normative fragmentation, global justice, legitimacy of rules and players, dynamics and hierarchization of norms, compliance and implementation in municipal law is also extensively investigated. Five basic values of the international community, namely security, humanity, wealth, environment, and knowledge, are explored by stressing their inter- and intra-tensions. Finally, the analysis is extended to the role that international courts play in the prosecution of heads of state and other transnational players who violate international law.
Annexed to GA Resolution 56/83 of 2001, the International Law Commission’s Articles on Responsibility for Internationally Wrongful Acts put the international law of responsibility on a sound footing. As Special Rapporteur for the second reading, James Crawford helped steer it to a successful conclusion. With this book, he provides a detailed analysis of the general law of international responsibility and the place of state responsibility in particular within that framework. It serves as a companion to The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002) and is essential reading for scholars and practitioners concerned with issues of international responsibility, whether they arise in interstate relations, in the context of arbitration or litigation, or in bringing international claims.
The information revolution has transformed both modern societies and the way in which they conduct warfare. Cyberwar and the Laws of War analyses the status of computer network attacks in international law and examines their treatment under the laws of armed conflict. The first part of the book deals with the resort to force by states and discusses the threshold issues of force and armed attack by examining the permitted responses against such attacks. The second part offers a comprehensive analysis of the applicability of international humanitarian law to computer network attacks. By examining the legal framework regulating these attacks, Heather Harrison Dinniss addresses the issues associated with this method of attack in terms of the current law and explores the underlying debates which are shaping the modern laws applicable in armed conflict.
Currently, International Humanitarian Law (IHL) also known as the law of armed conflict, makes the distinction between international and non-international armed conflicts. International armed conflicts are regulated by more treaties than their non-international counterparts. Furthermore, the regulation of international armed conflicts is also considerably more comprehensive than that offered for participants in and victims of non-international armed conflicts. This book asks whether the legal distinction between international and non-international armed conflicts remains viable or whether international law should move to maintain its consonance with the situations it seeks to regulate by developing a unified legal regime applicable in all armed conflicts. There is considerable precedent to support moves towards the elimination of the legal distinction between international and non-international armed conflicts. This book argues that IHL, a law which has, as one of its primary aims, the protection of the person in times of armed conflict, should not distinguish between types of armed conflict, specifically in how the law treats the vulnerable in times of armed conflict - those hors de combat due to illness and injury, and those deprived of their liberty through capture or surrender.
The Copenhagen Principles on the Handling of Detainees in International Military Operations were released in October 2012 after a five-year long process involving states and certain organizations. The Principles address a number of issues concerning the handling and transfer of detainees. They apply in military operations conducted by states abroad in the context of non-international armed conflicts and peace operations. This article focuses on those principles that address the procedural regulation of internment (ie preventive, security detention), as it is here that the current law is particularly unclear. On the one hand, the treaty provisions applicable in non-international armed conflicts contain no rules on the procedural regulation of internment, in comparison with the law of international armed conflict. On the other hand, the relevant rules under international human rights law (IHRL) appear derogable in such situations. This article demonstrates that the approach taken to this issue in the Copenhagen Principles is one which essentially draws on the procedural rules applicable to civilian internment in the international armed conflicts. These rules adopt standards that are lower than those under IHRL. Reference is then made to other recent practice, which illustrates that the Copenhagen Principles do not apply in a legal vacuum. In particular, two recent judicial developments highlight the continued relevance of human rights law and domestic law, respectively, in regulating detention operations in the context of international military operations. Compliance with the Copenhagen Principles may not, therefore, be sufficient for detention to be lawful.
Every student who has ever taken a traditional international law course has learned Manley Hudson’s four elements for the emergence of a rule of customary international law: ( a ) concordant practice by a number of States with reference to a type of situation falling within the domain of international relations;
( b ) continuation or repetition of the practice over a considerable period of time;
( c ) conception that the practice is required by, or consistent with, prevailing international law; and
( d ) general acquiescence in the practice by other States.
The ICRC's published 'Interpretive Guidance on the Notion of Direct Participation' by civilians in hostilities contributes usefully to the debate but is flawed. It creates an imbalance between members of the armed forces on the one hand, who are targetable at all times, and members of organised armed groups who do not have a continuous combat function, and civilians who persistently participate in hostilities on the other, who are said to be protected during intervals between specific acts of hostility. This imbalance is exacerbated by assertions that there is a presumption at law that civilians are not directly participating, that to be DPH there must be a single causal step linking the civilian's activity with the hostilities, that voluntary human shields may not be direct participants and that periods of preparation for, deployment towards and return from acts of direct participation, during which a civilian is liable to lawful attack, must be interpreted restrictively. This article takes aspects of the interpretive guidance in turn, analysing them to determine their legal and practical acceptability. It concludes that states must consider the guidance with some caution before determining their own position on this vexed issue.
This article examines two issues raised by Professor Goodman’s article published in this volume of EJIL: (1) a purported obligation under international humanitarian law (IHL) to minimize harm to enemy fighters; and (2) a purported
IHL duty to capture rather than kill when doing so is feasible in the circumstances. It notes that situations in which it
is possible to wound rather than kill enemy fighters are rare on the battlefield. However, even when such circumstances do
present themselves, there is no obligation under the extant IHL to do so. Similarly, there is no duty to capture rather than
kill under the existing law. Nevertheless, the article offers an analysis that would extend hors de combat status to enemy fighters who have been effectively captured, thereby shielding them from attack. Accordingly, the approach
would often arrive at the same conclusion as that proposed by Professor Goodman, albeit through a different legal lens. The
article concludes by noting that although there is no ‘capture-kill’ rule in IHL, for operational and policy reasons, capture
is usually preferred.
I wrote the article, ‘The Power to Kill or Capture Enemy Combatants’, to correct an oversight in recent law of armed conflict
(LOAC) scholarship and practice. In the article, two of the leading LOAC experts with whom I disagree are Colonel Hays Parks
and Professor Michael Schmitt. In his Reply to my article, Professor Schmitt thoughtfully engages with my analysis. His representation
of my argument is fair, and he interrogates the merit of my position squarely. In addition, he shows a willingness to modify
his earlier positions in light of my research,1 another feature of his writing that demonstrates an extraordinary quality of mind and intellectual character. I am honoured
to engage with his ideas in this Rejoinder.
First, I discuss Professor Schmitt and my points of agreement and the significance of our shared understanding for the kill-or-capture
debate. Secondly, I examine the content and importance of our remaining disagreement.
The centennial of the Hague Convention (No. II; No. IV in the 1907 version) on the Laws and Customs of War on Land and the fiftieth anniversary of the four Geneva Conventions for the Protection of Victims of War of August 12, 1949, present an opportunity to reflect on the direction in which the law of war, or international humanitarian law, has been evolving. This essay focuses on the humanization of that law, a process driven to a large extent by human rights and the principles of humanity. As the subject is vast, major issues must inevitably be left out of my discussion, including the impact of the prohibitions on unnecessary suffering and indiscriminate warfare on the regulation of weapons, the proscription of antipersonnel land mines and blinding laser weapons, and the progression of international humanitarian law from largely protecting noncombatants to protecting combatants as well.
The ICRC’s Clarification Process on the Notion of Direct Participation in Hostilities Under International Humanitarian Law - Volume 103 - Nils Melzer
Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities asserts: ‘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’. The present article scrutinises arguments that have been, or can be, advanced in favour of and against a ‘least harmful means’ requirement for the use of force in situations of armed conflict as suggested in Section IX. The principal aim of the article is to examine the question whether such an additional proportionality requirement forms part of the applicable international lex lata.
During wartime a critical legal question involves the scope of authority to choose whether to kill or capture enemy combatants.
One view maintains that a combatant is lawfully subject to lethal force wherever the person is found – unless and until the
individual offers to surrender. In contrast, this article concludes that important restraints on the use of deadly force were
a part of the agreement reached by states and codified in the 1977 First Additional Protocol to the Geneva Conventions. When
nations of the world focused their attention on balancing principles of humanity and military necessity, and making higher
law, they agreed on two important sets of rules. Under Article 35, states agreed to prohibit the manifestly unnecessary killing
of enemy combatants. And, under Article 41, they agreed that combatants who are completely defenceless, at the mercy of enemy
forces, shall be considered hors de combat. – including alternative specifications of standards and burdens of proof. Nevertheless, the general constraint – and its key
components – should be understood to have a solid foundation in the structure, rules, and practices of modern warfare.
This article addresses, in part, the question of what to do with civilian direct participants in hostilities who are not killed by opposing armed forces, but are captured. Specifically, the article address the potential criminal prosecution of detained DPHs. The ability to detain provides an opportunity to the detaining power to prosecute the DPH “for an offence arising out of the hostilities.” But is it a crime for someone who does not meet the Geneva Convention requirements for POW status to directly participate in hostilities? In other words, are all DPHs criminals? If so, are they war criminals, or, rather, common domestic criminals? The prevailing international view is that direct participation in hositilities in and of itself is not a war crime. Contrary to the prevailing international view, the United States has attempted, through the military commissions of Guantánamo, to treat direct participation in hostilities as a war crime. This article examines that effort, including the prosecutions of David Hicks and Omar Khadr, and the failed prosecution of Mohammed Jawad for alleged direct participation in hostilities. The article concludes that America's effort to convert all fighting against the U.S. by unprivileged enemy belligernets into a war crime has been a failure.
In recent times, armed conflicts have given rise to new challenges and to new humanitarian concerns. The realities of modern day armed conflicts have also fueled the debate as to the adequacy of International humanitarian law in the face of an evolving tapestry of conflict. This paper considers some of these challenges, including the concept of direct participation in hostilities.
A report to the Prosecutor of the ICTY concludes that there was no sufficient reason to institute proceedings against persons responsible for the NATO bombing campaign against Yugoslavia. The following rules of international humanitarian law were analysed in the report: protection of the environment in times of armed conflict; prohibition on attacking civilian objects; and the limitation of admissible collateral damage according to the proportionality principle. In relation to the protection of the environment, the report is too restrictive as it combines the test provided for by Protocol I Additional to the Geneva Conventions with a proportionality test. In relation to the protection of civilian objects, or the definition of military targets, the report practically sticks to the traditional assumption that traffic and communications infrastructure always constitutes a military objective. It fails, despite some lip service to the contrary, to ask the necessary critical question as to the real contribution of that infrastructure to the military effort of Yugoslavia. The proportionality principle requires a balancing of military advantage and civilian damage. The report's view concerning the value system which has to inspire this balancing process is highly questionable, in particular taking into account the humanitarian purpose of the entire operation. The Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) had to deal with a number of communications requesting her to institute criminal proceedings against those responsible for the bombing campaign of NATO between March and June 1999. The Prosecutor established an expert commission to evaluate both the law and the facts in this respect. The members of this expert group
This judgment is one of the most important contributions in recent years by a national court to the development of the laws governing armed conflicts between states and non-state actors taking place outside of the territory of the state involved. However, some contentious issues should not be passed over in silence. The Israeli Court applied the laws of international armed conflict to any case of armed conflict that crosses borders of the state even if the conflict does not involve belligerent occupation, without, however, providing any authority or explanation for this expansion of the class of international armed conflict. Furthermore, the Court rejected the Government's argument that a third category of ‘unlawful combatants’ exists under international law, but its analysis on the issue does not enable the reader to fully understand the substantive considerations leading to the Court's conclusion. Although the Court's reference to academic literature is welcome, it cannot replace an assessment of the sources and rules of international law. Finally, the Court set out various requirements restricting the Israeli government's attacks on terrorists taking direct part in hostilities. These requirements, however, go beyond what is commonly considered to be mandated under the laws of international armed conflict: it is difficult to find support for them in state practice or in less recent academic literature interpreting that body of law.
This article discusses the contribution made by the jurisprudence of the Yugoslavia Tribunal to the articulation of the body of international humanitarian law that applies to all armed conflicts, regardless of whether they are international or internal. The Tadic
Jurisdiction
Decision rendered by the Appeals Chamber in 1995 set the stage for a substantial “rapprochement” of the regulatory content of war crimes committed in international and internal armed conflict, using Common Article 3 of the Geneva Conventions as the main vehicle. The first judgements have contributed greatly to the expansion of the body of “Geneva law” applicable to all armed conflicts. More recently, the Tribunal has started to examine cases of armed conflicts per
se, in which perpetrators have been charged with violation of the “Hague law”, i.e., the law relating to the conduct of hostilities. The end result of this development will be elaboration of a common core of Geneva law and Hague law applicable to all armed conflicts that have reached the threshold of Common Article 3 of the Geneva Conventions.
The ‘direct participation’ exception to the principle of distinction, found in Article 51(3) of Protocol I and Article 13(2) of Protocol II, embodies a long-recognized concept in the laws governing armed conflict. For centuries the broad notion that humanity demands the protection only of those citizens who are harmless has found expression in the rules and norms relating to war. This article traces the historical factors and trends which influenced the development of the ‘direct participation’ exception in its current form, revealing a tendency towards ‘humanizing’ the law in favour of civilians, notwithstanding their increased military value.
Civilians who directly participate in hostilities lose their protection from attack for such time as they so participate. Additionally, they neither factor into proportionality calculations nor need be considered when taking “precautions in attack”. The principle reflects both treaty and customary international law. In 2009, the International Committee of the Red Cross released the interpretive guidance on the notion of direct participation in hostilities. This chapter critically analyzes the guidance, pointing out both its strengths and weaknesses. In doing so, it addresses four key questions: (1) Who qualifies as a civilian? (2) What acts constitute “direct participation”? (3) When does the notion apply? and (4) Do any further restrictions on attack attach to application of the rule?
The recent judgment by the Israeli Supreme Court on targeted killings is a landmark decision in many respects. Its main merit
lies in trying to give precision to, and therefore make concretely applicable by the belligerents, some loose standards of
international humanitarian law on the conduct of hostilities. In particular, the judgment is significant because (i) it concluded
that the issue of targeted killings did not amount to a non-justiciable question, (ii) it suggested a novel and imaginative
way of narrowing down the vague scope of imprecise international rules on methods of combat, and in addition (iii) it set
out a range of measures that belligerents must take both before and after armed attacks against civilians participating in
hostilities, so as to avoid damage to innocent civilians as far as possible. The measures authoritatively suggested in the
judgment may serve both to turn some unclear international rules into workable standards of conduct, and also to open the
way to the possible prosecution of individuals (superiors and subordinates) who do not comply with such standards.
The Judgment is the first in depth analysis of the notion of direct participation in hostilities in International Humanitarian
Law. This notion encompasses the direct participation by civilians in hostilities in a broad variety of circumstances, ranging
from full-time membership and participation in the activities of a group which is regularly engaged in attacks directed against
a state or its citizens to participation in a single attack directed against the armed forces of the state. The Judgment focuses
on activities at the high end of the spectrum. As such, it makes a very helpful contribution to thinking about the notion,
particularly because of its emphasis on safeguards to ensure that attacks are proportionate, subject to external review and
directed against persons who actually belong to such groups.
This chapter examines the international humanitarian law (IHL) principles of military necessity and humanity. It argues that the two principles undergird the entire body of IHL. Therefore, each individual IHL rule represents a delicate balance fashioned by States to accommodate both their legitimate need to be able to fight effectively on the battlefield and their desire to avoid unnecessary harm to combatants and the civilian population. However, the principles do not constitute norms which apply in addition to the existing rules, whether customary or conventional in nature. To interpret them in this manner would skew the balance upon which States have agreed.
An Analysis of the Legal Status of CIA Officers Involved in Drone Strikes
- Cline
Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights Law
- Hampson
The ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law: An Introduction to the Forum
- Goodman
Direct Participation in Hostilities’: A Legal and Practical Road Test of the International Committee of the Red Cross's Guidance through Afghanistan
- van der Toorn
Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretative Guidance
- Watkin
The Place of Law in Collective Security
- Koskenniemi
- Bothe