Abstract
The phrase "direct participation in hostilities" has a very specific meaning in international humanitarian law (IHL). Those individuals who are clothed with combatant status are authorised to participate directly in hostilities without fear of prosecution, while civilians lose their civilian immunity against direct targeting whilst they participate directly in hostilities. Any civilian activity which amounts to "direct participation in hostilities" temporarily suspends their presumptive civilian protection and exposes them to both direct targeting as a legitimate military target and prosecution for their unauthorised participation in hostilities. Since existing treaty sources of IHL do not provide a definition of what activities amount to "direct participation in hostilities", the ICRC in 2009 released an Interpretive Guide on the Notion of Direct Participation in Hostilities - in the hope of providing a neutral, impartial and balanced interpretation of the longstanding IHL principle of direct participation in hostilities. While not without criticism, the Interpretive Guide aims to respect the customary IHL distinction between "direct participation in hostilities" and mere involvement in the general war effort. The Guide proposes a three-pronged test which establishes a threshold of harm, and requires direct causation together with a belligerent nexus. Collectively, these criteria limit overly-broad targeting policies, while distinguishing occasions of legitimate military targeting from common, criminal activities. Together with these three criteria, the Guide introduces the notion of the revolving door of protection, together with the concept of a "continuous combat function". Both these new concepts have been the subject of criticism, as too the idea that a presumption of non-participation status should apply in cases of doubt. Nevertheless "nothing indicates that the ICRC's interpretive guidance is substantively inaccurate, unbalanced, or otherwise inappropriate, or that its recommendations cannot be realistically translated into operational practice"[1] in a way which will ensure that the fundamental principles of distinction and civilian immunity upon which all of IHL is built are observed.
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.
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Disclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.