Extrapolation of Criminal Law Modes of Liability to Target Analysis under International Humanitarian Law: Developing the Framework for Understanding Direct Participation in Hostilities and Membership in Organized Armed Groups in Non-International Armed Conflict

Abstract

Direct participation in hostilities and membership in an organized armed group are contested and controversial concepts. Recent developments in military and legal doctrine suggest that a more practicable account may supplement the valuable work of the ICRC in its Interpretive Guidance on Direct Participation in Hostilities in order to guide target analysis in the unconventional and civilianized operational environment of contemporary non-international conflicts. The purpose of this article is to extrapolate criminal law models of accessorial liability and co-perpetration in order to elucidate the concepts of direct participation in hostilities and membership in an organized armed group. What is proposed is an intelligence-led framework for target analysis that is grounded in military doctrine and based on a mixture of objective and subjective criteria derived from criminal law. This can foster a better understanding of the social dynamic that sustains on-going fighting which limits the scope for arbitrary and erroneous targeting decisions in doubtful situations.