Abstract
The International Humanitarian Law Notion of Direct Participation in Hostilities – A Review of The ICRC Interpretive Guide and Subsequent Debate
Highlights
The phrase "direct participation in hostilities"1 has a very exacting meaning in the realm of international humanitarian law (IHL), and refers generally to those activities normally undertaken by combatants
According to the International Committee for the Red Cross (ICRC)'s study of the customary international law status of this provision, there is no evidence of contrary state practice,19 and on the whole the principle was seen
The ICRC had sought a unanimous consensus at these expert meetings, but it soon became apparent that seeking unanimity might scuttle the whole project
Summary
The phrase "direct participation in hostilities" has a very exacting meaning in the realm of international humanitarian law (IHL), and refers generally to those activities normally undertaken by combatants. As a general rule, all those with combatant status are authorised to participate directly in hostilities and are immune from prosecution for their participation. Civilians, on the other hand, enjoy immunity against direct attack precisely because they refrain from any such direct participation in hostilities. As civilians, they remain protected from any direct targeting for so long as they refrain from participating in combative activities which would otherwise compromise their protected status.. He may no longer be attacked" (Jensen "Direct Participation in Hostilities" 1995-2012); ICRC 2009 http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature-020609 12; Schmitt 2010 NYU J Int'l L & Pol 703. According to the ICRC's study of the customary international law status of this provision, there is no evidence of contrary state practice, and on the whole the principle (that civilians lose their immunity from prosecution when they participate in hostilities) was seen. The Inter-American Commission on Human Rights understands the term "direct participation in hostilities" to mean "acts which, by their nature or purpose, are intended to cause actual harm to enemy personnel and matériel".23. ICRC 2009 http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 41; Henckaerts and Doswald-Beck Customary International Humanitarian Law 23.
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