'Direct participation in hostilities': a legal and practical road test of the International Committee of the Red Cross's guidance through Afghanistan.

• Author: Van Der Toorn, Damien

ABSTRACT

The increasing difficulty in distinguishing between peaceful civilians and irregular forces in modern conflicts has necessitated closer legal analysis of the phrase 'direct participation in hostilities' as used in the Geneva Conventions and Additional Protocols. The International Committee of the Red Cross's ('ICRC') 'Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law', published in June 2009, undertakes such an analysis. The Guidance may well have a significant influence on international and national tribunals considering the meaning of direct participation in hostilities, as well as the framing and implementation of rules of engagement by states for current and future operations. This article offers a critique of the Guidance both in terms of its process and nature, as well as its substantive legal analysis of the phrase. It also evaluates whether the ICRC's interpretation strikes a reasonable balance between the ability to achieve legitimate military objectives and the protection of civilians. Finally, it considers whether the interpretation results in a 'level legal playing field' for all parties to a conflict.

Introduction

Recent history has witnessed the 'civilianisation' of conflict. This is due to the movement of battlefields into civilian centres, as well as the introduction of large numbers of armed actors from the civilian population into armed conflict. These trends have emphasised the importance of having clear guidance to distinguish peaceful civilians from members of organised armed groups and civilians taking a direct part in hostilities. Without such clear distinctions, there is a greater risk that peaceful civilians may be erroneously targeted in situations of conflict.

Such clear distinctions are not possible without exploring the meaning of the phrase 'direct participation in hostilities'. This phrase is derived from similar language in Common Article 3 of the Geneva Conventions, but is used in many different international humanitarian law (IHL) instruments. In particular, Additional Protocols I and II suspend targeting immunity from civilians who directly participate in hostilities. (1) However, despite its great importance, the phrase is not defined in any of these instruments. There has also been a polarised academic debate over the meaning of the term, with commentators oscillating between narrow and liberal interpretations. (2)

The International Committee of the Red Cross's (ICRC) Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (3) (the Guidance) seeks to clarify some of these issues by offering a legal interpretation of the phrase. This article first summarises the background to, and essential elements of, this interpretation. It then critically evaluates the Guidance both in terms of its process and nature, as well as its substantive legal analysis of the phrase. This evaluation considers whether the ICRC's interpretation strikes a reasonable balance between the ability to achieve legitimate military objectives and the protection of civilians. It also considers whether the interpretation results in a 'level legal playing field' for all parties to a conflict.

1. The Guidance

   1. Process, Scope and Status

      The ICRC and the TMC Asser Institute initiated a process of clarification of the notion of 'direct participation in hostilities' in 2003. Five informal meetings were held up until 2008, each involving 40-50 legal experts from military, governmental, academic and nongovernmental circles, in their private capacities. (4) This led to a process of refinement, with the final Guidance being published by the ICRC in June 2009.

      The Guidance examines the meaning of direct participation in hostilities in the context of both international and non-international armed conflicts. However, the Guidance does not intend to explore the application of the phrase to situations of detention in armed conflict, nor the use of the phrase outside IHL, such as in human rights law or jus ad bellum (the right towage war'). (5)

      The formal status of the document is that it is 'interpretative guidance' by the ICRC for the legal meaning of the phrase 'direct participation in hostilities' as used in IHL, It represents the views of the ICRC only, though these views are informed by the expert process. The Guidance does not seek to change customary or treaty IHL or to be legally binding, though it hopes to be persuasive on the issue. (6) The Guidance draws on a range of sources including treaty and customary IHL, jurisprudence and military manuals. (7)

   2. Concept of 'Civilian' in International and Non-International Armed Conflicts

      The Guidance begins by clarifying the concept of 'civilian' in both international and non-international armed conflicts. The purpose is to define those categories of persons who are immune from attack and, conversely, those who may be lawfully targeted.

      1. Civilians and International Armed Conflicts

         In an international armed conflict, the Guidance states that any person who is not: a) a member of an organised armed force, group or unit under a responsible command to a party to the conflict, or b) participating in a levee en masse, are 'civilians' and are immune from attack. Conversely, any person falling within these categories is a combatant and may be lawfully targeted at any time. However, if a civilian takes a direct part in hostilities they forfeit their immunity and may be subject to lawful targeting for as long as they do so. (8)

         Armed forces of a part to a conflict comprise all organised armed forces, groups or units that ate under a command responsible to that part. (9) This includes state forces (as regulated by domestic law) as well as non-state organised armed groups that 'belong to' one of the state parties to the conflict according to the laws of state attribution. (10)

      2. Civilians and Non-International Armed Conflicts

         In a non-international armed conflict, the Guidance provides that any person who is not: a) a member of state armed force, or b) another organised armed group (including a dissident armed force), under a command responsible to a party to the conflict, is designated as a civilian and is immune from attack. (11) Conversely, any person falling within these categories may be lawfully targeted at any time. However, if a civilian takes a direct part in hostilities, they forfeit their immunity and may be lawfully targeted for so long as they do so. (12)

         The Guidance provides that state armed forces have the same meaning as in an international armed conflict. (13) Membership in other organised armed groups is a significantly more difficult issue, since such membership is not regulated by domestic law and is rarely based on an act of official integration or identification. Rather, such membership may be informal, elastic, clandestine or based on some family, tribal or other affiliation. (14) For these reasons, there is a risk that civilians, whose support for a group does not involve direct participation in hostilities, may be incorrectly targeted. To reduce this risk, the Guidance suggests that membership of such groups should include only those individuals performing a 'continuous combat function' for that part to the conflict. (15) This requires an individual to perform a continuous function for the group involving his or her direct participation in hostilities. (16) A lasting integration into the armed group is also required. (17) This approach excludes the targeting of political and administrative personnel, as well as other persons not exercising a combat function. Recruiters, trainers, financiers, propagandists, those involved in general weapons acquisition or manufacture and general intelligence collectors are deemed to fall within the latter category. (18)

         Based on this analysis, the Guidance implies that 'direct participation in hostilities' is primarily relevant to the targeting of two types of actors within armed conflict: civilians who directly participate in hostilities on a spontaneous, sporadic or unorganised basis, and members of organised armed groups whose functions involve directly participating in hostilities on a continuous basis.

         C Concept of 'Direct Participation in Hostilities'

         The Guidance acknowledges that no clear interpretation of the term is available from treaties, state practice or case law. Instead, the meaning must be derived from ordinary principles of treaty interpretation. While the Guidance acknowledges that interpretation of the phrase must take into account the wide variety of military, cultural, political and geographical contexts in which conflicts occur, it also emphasises the limited clasticity of the concept and the importance of balancing fundamental principles underlying IHL, particularly military necessity and humanity', in interpreting the phrase. (19) However, it asserts that the meaning of 'direct participation in hostilities' is the same in both international and non-international armed conflicts. (20)

      1. Hostilities

         The ICRC correctly asserts that the notion of hostilities is intrinsically linked to armed conflicts of an international or non-international character, as opposed to internal disturbances and tensions. (21) More specifically, 'hostilities' refers to the collective resort by the parties to a conflict to means and methods of injuring the enemy. (22) Expressed another way, it is the sum total of all hostile acts towards an enemy carried out by those participating in hostilities. (23)

      2. Specific Acts

         According to the Guidance, 'participation' in hostilities refers to the specific hostile acts carried out by an individual towards an enemy in the context of those hostilities. (24) Each of these acts form components of the collective hostilities between the parties to the armed conflict.

         The Guidance argues that interpreting 'participation' beyond specific acts would...