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. Rather, it distinguishes members of the organized fighting forces of a non-State party from civilians who directly participate in hostilities on a merely spontaneous, sporadic, or unorganized basis, or who assume exclusively political, administrative or other non-combat functions. This would not be the case where civilians merely take advantage of a breakdown of law and order to commit violent crimes. The ICRC initiated reflection on the notion of direct participation in hostilities based both on the need to enhance the protection of civilians in practice for humanitarian reasons and on the international mandate it has been given to work for the better understanding and faithful application of international humanitarian law. What consequence arise from direct participation in hostilities? Most notably, Article 3 GC I-IV provides that each Party to the conflict must afford protection to persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat. protected from attack for such time as they take a direct part in hostilities.). participating in hostilities and, in fact, protects combatants.273 The By contrast, the other view was that they may lose their entitlement to POW status in certain situations in as much as they are assimilated to unlawful/unprivileged combatants. Specific acts may constitute part of the hostilities even if they are not likely to adversely affect the military operations or military capacity of a party to the conflict. any time and anywhere.283 CCF does not seem to allow for individuals The primary aim of 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. Indeed, even direct attacks against legitimate military targets are subject to legal constraints, whether based on specific provisions of IHL, on the principles underlying IHL as a whole, or on other applicable branches of international law. Private military contractors may be individually hired or, alternatively, may be employees of private military corporations. Content. Additional Protocol I's provisions merged portions of Hague and Geneva law. 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. 26 (noting the customary status of this principle). President of the International Committee of the Red Cross. In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria: Measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act. Dissident armed forces: Although members of dissident armed forces are no longer members of State armed forces, they do not become civilians merely because they have turned against their government. Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities, whereas members of organized armed groups belonging to a non-State party to an armed conflict cease to be civilians (see above II), and lose protection against direct attack, for as long as they assume their continuous combat function. ICRC COMMENTARY,supra note 81, 1944, at 619; see also MELZER, supra In contemporary conflict, however, the proximity of civilians to military operations and their increased assumption of military functions lead to confusion regarding the principle of distinction.read more. civilians is limited to each single act: the earliest point of direct participation would be c) Practical relevance of belligerent nexus. This scenario may become particularly relevant in ground operations, such as in urban environments, where civilians may attempt to give physical cover to fighting personnel supported by them or to inhibit the movement of opposing infantry troops. 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. 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. Persons participate directly in hostilities when they carry out acts, which aim to support one party to the conflict by directly causing harm to another party, either directly inflicting death, injury or destruction, or by directly harming the enemy's military operations or capacity. I just wanted to add a few thoughts after Dapo's excellent post on the Gaza conflict, of which there seems to be no end in sight. Kretzmer, supra note 53, at 190 (Under the If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. In the absence of such military harm, however, a specific act must be likely to cause at least death, injury, or destruction. The requirement of feasible precautions. 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. supra note 19, para. they may be targeted while they are actually engaging in combat, or It is rarely formalized through an act of integration other than taking up a certain function for the group; and it is not consistently expressed through uniforms, fixed distinctive signs, or identification cards. Id. lawful target of an opposing military armed force.). the rights of targeted individuals.275 The Israeli Supreme Court noted. Once an attack has commenced, those responsible must cancel or suspend the attack if it becomes apparent that the target is not a legitimate military target. 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. AL-ADW 16 Damien J. van der Toorn, "Direct participation in hostilities: A legal and practical evaluation of the ICRC . equipment of the enemy armed forces.) (alteration in original) (citations omitted). be directly participating in hostilities, yet not repeatedly enough to ICRCCOMMENTARY,supra note81, 1942; see also Prosecutor v. Rutaganda, The 2009 study is not settled law and has been criticised. Nevertheless, through their voluntary presence near legitimate military objectives, voluntary human shields are particularly exposed to the dangers of military operations and, therefore, incur an increased risk of suffering incidental death or injury during attacks against those objectives. As a general rule, harm caused (a) in individual self-defence or defence of others against violence prohibited under IHL, (b) in exercising power or authority over persons or territory, (c) as part of civil unrest against such authority, or (d) during inter-civilian violence lacks the belligerent nexus required for a qualification as direct participation in hostilities. 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. implemented a targeted killing policy in response to thousands of terror Loss of an identity card does not deprive the person concerned of POW status. In both cases, acts reaching the required threshold of harm can only amount to direct participation in hostilities if they additionally satisfy the requirements of direct causation and belligerent nexus. Other rules of international humanitarian law then govern, foremost among them being the already mentioned principle of humane treatment. 268. Therefore, individual conduct that merely builds up or maintains the capacity of a party to harm its adversary, or which otherwise only indirectly causes harm, is excluded from the concept of direct participation 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. attacks, and opponents challenged this policy on the basis that it violated 245. part in hostilities'.6 The concept of Direct Participation in Hostilities ('DPH'), therefore, has gradually become the key to assess these modern trends of civilian participation and judge potential acts or behaviours that could temporarily suspend the general protection that IHL affords to civilians. In IHL, attacks are defined as acts of violence against the adversary, whether in offence or in defence. that CCF requires lasting integration of the participating individual into Id. Conversely, armed violence which is not designed to harm a party to an armed conflict, or which is not designed to do so in support of another party, cannot amount to any form of participation in hostilities taking place between these parties. The practical importance of their restraining function will increase with the ability of a party to the conflict to control the circumstances and area in which its military operations are conducted, and may become decisive where armed forces operate against selected individuals in situations comparable to peacetime policing. International humanitarian law neither prohibits nor privileges civilian direct participation in hostilities.
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