The Notion of ‘Direct Participation in Hostilities’ and Its Implications on the Use of Private Contractors under International Humanitarian Law

Abstract

The principal purpose and aim of this article is to determine and explain the constitutive elements of the notion of the phrase ‘direct participation in hostilities’. Private military and security contractors or more generally the outsourcing of specific military functions in this regard will serve as example to explain the vitality and criticality of understanding the notion of ‘direct participation in hostilities’, particularly in contemporary armed conflicts, both of an international and non-international character. Although private contractors are the serving examples the legal analysis shall be perceived as a possible normative understanding of the terminology examined and its implications. To accomplish this mission several prerequisite determinations and explanations concerning the International Law of Armed Conflict are indispensable, especially for non lawyers to understand this important question. To understand the topic under examination in this paper, it is important to be aware of the main pillars of the complexity of International Humanitarian Law and its distinct differences to, e.g., International Human Rights Law (Provost 2002: 34).