Direct Participation in Hostilities: Operationalizing the International Committee of the Red Cross' Guidance

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. …