The ICRC's interpretive guidance on the notion of direct participation in hostilities: sociological and democratic legitimacy in domestic legal orders

Abstract

ABSTRACTThe Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law issued by the International Committee of the Red Cross (ICRC) in 2008 recommended two interpretive standards for 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 function 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 paper surveys the levels of adoption of these standards in selected domestic jurisdictions, identifies the possible legitimating factors that gave these standards the capacity to induce their adoption by domestic actors and examines whether and how governance by these transnational standards may be justified by their democratic legitimacy.