The ICRC Interpretive Guidance on DPH in the Domestic Legal Orders Sociological and Democratic Legitimacy

Abstract

The Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (the ‘Interpretive Guidance’) issued by the ICRC in 2008 recommended two interpretive standards on the use of force against individuals in armed conflicts. While one standard defines ‘direct participation in hostilities’ by reference to ‘functional membership’ such that anyone with a continuous combat functions in an organised armed group will lose her/his civilian immunity and be subject to attack on a continuous basis, the other standard requires that the kind and degree of force used in the attack be graduated according to military necessity. This article surveys the court decisions, military manuals and legal or policy documents in different domestic jurisdictions since the publication of the Interpretive Guidance to illustrate the different levels of the adoption of these standards in domestic legal orders. It then uses Franck’s theory of legitimacy to identify the possible legitimating factors that gave these standards the capacity to induce their adoption by domestic actors. Lastly it uses Habermas’ theory of deliberative democracy to examine whether and how the governance by these transnational standards of the people subjected to them may be justified by their democratic legitimacy.