Direct Part In Hostilities Research Articles

Who Are Protected by the Fundamental Guarantees under International Humanitarian Law? Part 2: Breaking with the Control Requirement in Light of the icc Case Law

Abstract International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict and which apply to individuals even if they do not fall into the categories of specifically protected persons under the Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific conduct against persons, such as murder, cruel treatment, torture, sexual violence, or against property, such as pillaging. However, it is traditionally held that the entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This study argues in favour of breaking with these two requirements in light of the existing icc case law. That study is divided into two parts, with each part devoted to one requirement and made the object of a specific paper. The two papers follow the same structure. They start with general observations on the requirement concerned, examine the relevant icc case law and put forward several arguments in favour of an extensive approach to the personal scope of the fundamental guarantees. The first paper, which was published in the previous issue of this journal, dealt with the status requirement. It especially delved into the icc decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocated the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments relied on ihl provisions protecting specific persons as well as on the potential for humanizing ihl on the matter and also on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which is published here, deals with the control requirement. It examines several icc cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees may apply in the conduct of hostilities. This concerns mainly those guarantees whose application or constitutive elements do not imply any physical control over the concerned persons or properties.

Who Are Protected by the Fundamental Guarantees under International Humanitarian Law? Part 1: Breaking with the Status Requirement in Light of the icc Case Law

Abstract International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict, and which are applicable to individuals even if they do not fall into the categories of specifically protected persons under the 1949 Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific types of conduct against persons, such as murder, cruel treatment, torture and sexual violence, or against property, such as pillaging. However, it is traditionally held that entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or must no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This study argues in favour of breaking with these two requirements, in light of the existing ICC case law. The study is divided into two parts, with each part devoted to one requirement and made the object of a specific paper. The two papers follow the same structure. They start with general observations on the requirement concerned, examine the relevant ICC case law and put forward several arguments in favour of an extensive approach to the personal scope of the fundamental guarantees. The first paper, which is published in this issue, deals with the status requirement. It especially delves into the ICC decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocates for the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments rely on IHL provisions protecting specific persons, on the potential for humanizing IHL on the matter and on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which will be published in a coming issue, deals with the control requirement. It examines several ICC cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees (mainly those whose application or constitutive elements do not imply any physical control over the concerned persons or properties) may apply in the conduct of hostilities.

Gender analysis of the specificity of neurotic disorders in different categories of persons affected by hostilities

Post-stress mental disorders caused by military actions in the east of Ukraine become one of the important internal barriers during adaptation to the conditions of peaceful life due to the layering on this substrate of new stresses associated with social maladaptation. The study of the specificity of the clinical structure, the peculiarities of the diagnostic process, the prevention and treatment of post-stress disorders in persons who have survived combat operations, is definitely becoming one of the most important medical and social issues of our society at the moment. We conducted a comprehensive examination of 299 patients with non-psychotic mental disorders, both sexes, with an average age of (30.6±4.7) years. The I group included 96 servicemen of the Ukrainian Armed Forces who took direct part in hostilities in the Joint Forces Operations (JFO) zone (30 women and 66 men); The II group – 98 volunteers whose activities are related to the support of servicemen in the JFO zone (54 women and 44 men); Group III - 105 forced migrants (53 women and 52 men). The clinical structure of post-traumatic stress disorders in the examined patients was represented by: post-traumatic stress disorder (F43.1); adaptation disorders (prolonged anxiety-depressive reaction) (F43.21); anxiety disorders: generalized anxiety disorder (F41.1); panic disorder (F41.0). When analyzing the clinical symptoms, we have the following gender differences: in women, compared to men, neurotic disorders were manifested by a greater expressiveness of longing, and in men, irritability and anxiety manifestations came to the fore in the clinical structure. The data obtained during the work formed the basis for the development of a comprehensive personalized program for the correction of non-psychotic mental disorders and the rehabilitation of persons affected by combat stress with the differentiated use of psychopharmacotherapy, psychotherapy and psychoeducation methods. Keywords: hostilities, non-psychotic mental disorders, combatants, volunteers, internally displaced persons (IDPs).

Targeting of Children in Non-International Armed Conflicts

Abstract Albeit the prohibition of recruitment and use in hostilities of children is an established norm of international law, recognized under both international humanitarian law and international human rights law, the problem still remains. The main actors responsible for this reality are non-state armed groups (NSAGs), which kept recruiting and involving children in various tasks, including direct participation in hostilities (DPH). This in turn generates a dilemma regarding targetability of such children: whether to extend the special protection afforded to them by international law from being recruited and/or used in hostilities for targeting purposes as well. Additionally, the difficulty to determine targeting rules in the context of non-international armed conflicts (NIACs), which led to controversies as to targetability of even adult members of NSAGs while they do not take a direct part in hostilities, exacerbates the dilemma. This piece, accepting persuasiveness of the proposal in the ICRC Interpretive Guidance that those members of armed groups who have continuous combat function (CCF) are targetable, in addition to civilians taking a direct part in hostilities, questions whether children with such function/role are targetable in the same manner as adults of the same position. It is argued here that though children can be targeted during their DPH or when they have CCF, there is support in the law that the notions of DPH and CCF should be applied to them differently than adults. The piece also analyzes if the same means and methods used to target adults could be lawful when employed against children.

The Principle of Distinction in an International Armed Conflict: Organized Armed Groups Not Belonging to a State Party to the Conflict

The classification of Non-State Organized Armed Groups participating in a mere International Armed Conflict (IAC) could be troublesome, especially in the absence of a co-existing Non-International Armed Conflict (NIAC). Since this situation is not simply covered by the Geneva Conventions. Under the current legal framework of IHL, an Organized Armed Group classifies as armed forces in an IAC if it belongs to a State Party to the conflict. If not, the Organized Armed Group cannot be considered as armed forces as specified in Article 43 of Additional Protocol I to the Geneva Conventions and may as a result be classified as civilians. This differs from NIACs in which Non-State Organized Armed Groups are considered as armed forces as specified in Common Article 3. In the absence of a co-existent NIAC, the classification is contingent on how the Non-State Organized Armed Group fits in the IAC. This article argues that on the basis of international bodies of law such as the Geneva Conventions, Non-State Organized Armed Groups taking part in a mere IAC should not be considered as taking part in a NIAC, nor should they be classified as civilians taking continuously direct part in hostilities, and lastly nor should they be treated as armed forces as defined in Article 43 (1) of Additional Protocol I to the Geneva Conventions. Rather, the article concludes that Organized Armed Groups taking place in an IAC are classified as armed forces as provided in Common Article 3 and is therefore, also governed by what is known as the ‘mini-convention’ provided in Common Article 3 under customary international law.

Protection of Children Participating in Hostilities under International Humanitarian Law and Human Rights Law: Issues of Compliance by Non-State Actors

Children enjoy legal protection under international humanitarian law and international human rights law. In situations of armed conflict, children are granted not only general protection as civilians, but special protection as children. Several legal provisions exist in the Geneva Conventions and its Additional Protocols, along with the Convention on the Rights of Child and its Second Optional Protocol on Children in Armed Conflicts. However, despite the current legal framework providing protective rights to children, there are serious issues of compliance by non-state actors, particularly in reference to inducting and using child soldiers. This highlights several legal challenges to international humanitarian law vis a vis the diminished protection of children taking direct part in hostilities. This article discusses the current legal regime protecting children in armed conflict, who take direct and indirect part in hostilities. Thereafter, an analysis is made of situations of international and non-international armed conflicts and the difference in protections accorded to these children, respectively. Lastly, an analysis is made of the compliance mechanisms that may be developed for non-state actors under international humanitarian law to prevent recruitment of children for taking direct or indirect part in hostilities. The issues of compliance by non-state actors and possible responses to such challenges are also addressed.

Phenomenology of non-psychotic mental disorders in injured combatants

According to the UN, the victims of the armed conflict in Ukraine were 6,764 people (including civilians), 16,877 people were injured, and the number of temporarily internally displaced persons exceeded 2.3 million. As of January 1, 2020, there are 459,655 participants in hostilities in Ukraine. Due to today’s challenges, non-psychotic mental disorders are a serious problem in general and especially in military psychiatry. 115 servicemen of the Armed Forces of Ukraine who took a direct part in hostilities in the Anti-Terrorist Operation zone were surveyed. All subjects were divided into two groups. The main group included 60 combatants who had injury and non-psychotic mental disorders, the comparison group included 55 combatants with non-psychotic mental disorders who were not injured. It has been determined that in the structure of non-psychotic mental disorders in the examined patients there was a severe level of depression (at 89.1% and 79.2%) and anxiety (at 95.6% and 94.4%) by the Hamilton Scale, subclinical manifestations of depression (at 56.8% and 49.9%) and clinical manifestations of anxiety (at 69.8% and 66.5%) by a Hospital Anxiety and Depression Scale. The phenomenological structure of non-psychotic mental disorders in combatants who were injured is represented by the predominance of depressive, anxious, asthenic and psychosomatic syndrome. Keywords: injuries, non-psychotic mental disorders, combatants, stress.

The ‘Revolving Door’ of Direct Participation in Hostilities

Abstract Contemporary trends of warfare have witnessed a so-called ‘civilian footprint’ in support of military operations while battlefields have increasingly shifted towards urban areas. International humanitarian law established a framework through which civilians are protected from direct attack ‘unless and for such time as they take a direct part in hostilities’. Three key areas have traditionally been associated with the analysis of direct participation in hostilities (‘dph’): civilian legal status, what behaviour amounts to dph, and what modalities govern this loss of protection. This article will focus on the latter and attempt to create a feasible and practical framework capable of harnessing the temporal scope of dph and limit the so-called ‘revolving door phenomenon’. The framework developed in this article will account for criteria that could and should aid decision-making on the battlefield, most notably causal associations between individuals and dph acts and the physical or non-physical nature of dph acts’ deployments.

Clinical and psychopathological features of depressive disorders in survivors of hostilities

Psychosocial stressor (war) has a negative impact on the mental health of all citizens of our country, servicemen of the Armed Forces of Ukraine, soldiers of the National Guard and prisoners, their relatives and refugees who have been forced to leave their living places. A comprehensive examination was conducted of 150 patients with depressive disorders, both sexes, aged 20–55 years. Group I of the survey included 50 servicemen of the Armed Forces of Ukraine who took a direct part in hostilities in the ATO zone, group II included 50 internally displaced persons and group III included 50 volunteers whose activities are related to supporting the military in the ATO zone. According to the results of the study, the clinical structure of depressive disorders in the examined patients is presented as anxious (in 30 % of combatants; 24 % of migrants and 26% of volunteers), labile (in 26%; 30%; 22% of patients, respectively), apathetic (in 28% of patients of group I; 24% of group II; 28% of group III) and asthenic (in 16%; 22%; 24%, respectively) types. The data obtained during the study formed the basis for the development of a personalized program of psychotherapeutic support and prevention of suicidal behavior in patients with stress-related depressive disorders. Keywords: depressive disorders, hostilities, combat mental trauma, anxiety.

Returning foreign fighters: The case of Denmark

AbstractThis article considers which legal regimes apply in cases where a Danish citizen and/or resident returns from Syria or Iraq after having taken part in the armed conflict on behalf of the group known as Islamic State, and continues his/her affiliation with the armed group. The article argues that international humanitarian law currently applies to the Danish territory and that a Danish foreign fighter may continue to be considered as taking a direct part in hostilities after having returned from Iraq or Syria. The article then considers the application of Danish criminal law to returned foreign fighters and argues that Danish counterterrorism laws do not apply to members of the armed forces of an armed group that is party to an armed conflict with Denmark.

A Fine Line between Protection and Humanisation: The Interplay between the Scope of Application of International Humanitarian Law and Jurisdiction Over Alleged War Crimes Under International Criminal Law

International humanitarian law (IHL) provides limits to the conduct of warring parties during armed conflicts. If these limits are crossed, international criminal law (ICL) can address alleged violations of IHL. When certain conduct falls outside the scope of jurisdiction over war crimes it may result in impunity. International courts and tribunals have therefore taken a very broad approach to their jurisdiction, including with regards to the concept of non-international armed conflict, which has been expanded well beyond the initial intention of States. While an expansive approach to the application of IHL may be desirable after the fact, in order to ensure that atrocities can be prosecuted as war crimes, applying IHL too broadly to situations on the ground may not result in better protection of those affected by violence. Although the protective function of IHL remains of paramount importance, States nowadays also extensively rely on the permissive aspect of IHL that allows targeting of military objectives, combatants and other persons taking a direct part in hostilities. The present chapter addresses the tension between the desire to expand the jurisdiction over war crimes and the consequential impact on IHL. It does so by specifically looking at the manner in which international courts and tribunals have pronounced on the material scope of IHL.

Strengthening the Principle of Distinction?

The primary impetus for the Interpretive Guidance on the Notion of Direct Participation in Hostilities by the International Committee of the Red Cross was the need for an accepted understanding of the notion of ‘direct participation in hostilities’. The Interpretive Guidance recommends that in non-international armed conflicts organised armed groups consist only of persons whose continuous function for the groups involves taking direct part in hostilities. The objective of this article is to assess to what extent the ‘continuous combat function’ category strengthens the protection of civilians under the principle of distinction.

‘Has ‘Justice Been Done’? The Legality of Bin Laden’s Killing Under International Law’

The killing of Osama bin Laden by US Special Forces on 2 May 2011 raises several questions of international law with regard to the legality of this particular operation and the permissibility of targeted killings of international terrorists in general. In this paper it will be argued, on the basis of an analysis of the applicable international law, that the killing of bin Laden cannot be justified under international humanitarian law because there is no armed conflict between the US and Al-Qaida. Even if one were to assume the existence of such an armed conflict, bin Laden’s killing would only have been lawful if Al-Qaida were to be considered an organized armed group within the meaning of international humanitarian law and bin Laden could have been killed qua membership in this group. Otherwise, his killing could only have been lawful if he was (still) taking a direct part in hostilities. In any case, in the absence of an armed conflict, under the applicable legal regime of peacetime the killing could only be justified in a situation of self-defence or an immediate danger for others. As this situation did apparently not exist, the killing of bin Laden amounted to an extra-judicial execution. On another note, the operation may also have violated international law by failing to respect Pakistan’s territorial sovereignty. Ultimately, this depends on the recognition of a (pre-emptive) right to self-defence under Article 51 of the UN Charter, in particular taking into account the immediacy criterion.

Has ‘Justice Been Done’? The Legality of Bin Laden's Killing Under International Law

The killing of Osama bin Laden by US Special Forces on 2 May 2011 raises several questions of international law with regard to the legality of this particular operation and the permissibility of targeted killings of international terrorists in general. In this article it will be argued, on the basis of an analysis of the applicable international law, that the killing of bin Laden cannot be justified under international humanitarian law because there is no armed conflict between the United States and Al Qaeda. Even if one were to assume the existence of such an armed conflict, bin Laden's killing would only have been lawful if Al Qaeda were to be considered an organised armed group within the meaning of international humanitarian law and bin Laden could have been killedquamembership of this group. Otherwise, his killing could only have been lawful if he was (still) taking a direct part in hostilities. In any case, in the absence of an armed conflict, under the applicable legal regime of peacetime, the killing could only be justified in a situation of self-defence or an immediate danger for others. As this situation apparently did not exist, the killing of bin Laden amounted to an extrajudicial execution. On another note, the operation may also have violated international law by failing to respect Pakistan's territorial sovereignty. Ultimately, this depends on the recognition of a (pre-emptive) right to self-defence under Article 51 of the UN Charter, in particular taking into account the immediacy criterion.

Two Sides of the Combatant COIN: Untangling Direct Participation in Hostilites from Belligerent Status in Non-International Armed Conflicts

Determining who qualifies as a lawful object of attack in contemporary military operations against non-state belligerents is an increasingly demanding challenge. While it is axiomatic that only persons who qualify as either belligerents or civilians taking a direct part in hostilities fall into this category, the nature, and indeed goal, of counter-insurgencies blurs the line between civilians protected from deliberate attack and belligerents subject to attack. The difficulty in distinguishing the protected (civilians) from the unprotected (belligerents and civilians taking a direct part in hostilities) does not, however, warrant a fundamentally different targeting paradigm in counterinsurgency operations (a non-international armed conflict (NIAC)) than in international armed conflicts (IAC). This article rejects the increasing trend to treat all non-state actors as merely a conglomeration of civilians who take a direct part in hostilities, an approach which incentivizes non-compliance with the law of armed conflict (LOAC) and, perversely, dilutes civilian protection. Instead, this article argues that all belligerent operatives – those involved in not just IAC but also the more prevalent NIAC – are subject to status based targeting authority and the application of deadly force in the first instance. This flawed trend appears to be the result of the combined effect of the lack of an explicit definition of a combatant in NIAC, and misapplication of the International Committee of the Red Cross’ (ICRC) endorsement of the concept of “continuous combat function” (CCF) as a means of establishing direct participation in hostilities and corresponding loss of civilian protection from attack. The effect of the CCF concept has made it more convenient to analyze the legality of attacking non-state actors through the DPH methodology than to assess whether such actors fall into a category of presumptively targetable belligerents subject to attack no differently than their IAC counterparts. The article offers a proposal of how to reconcile the ICRC’s view with status based targeting presumptions: maintain the distinction integrity.The article begins by discussing the LOAC’s categorization of civilians and belligerents (combatants in IAC), and how a lack of an explicit treaty definition of combatant in the NIAC context is an obstacle to acknowledging analogous categorization. The article then explores organizational membership and how subordination to command and control is the fundamental difference between belligerents and civilians in any armed conflict. The article next explains the difference between status and conduct based targeting and why a focus on conduct to assess belligerent status is merely a permutation of traditional status recognition analysis.The article then contrasts that approach by examining why the use of conduct undermines the extension of the ICRC’s rule to define enemy belligerent forces. These problems result in the ICRC’s arguably schizophrenic imposition of a minimum force requirement even when targeting those engaged in CCF. As the article details, the utility of CCF is not in assessing which civilians are taking a direct part in hostilities, but in determining when an individual appearing to be a civilian is in fact a belligerent operative of an armed organized group.Ultimately, the integrity of the target legality framework depends on the recognition of opposing belligerent groups in any armed conflict. This recognition facilitates implementation of the principle of distinction by allowing belligerent forces to segregate those they encounter into two distinct groups: those presumed hostile and therefore subject to immediate attack, and all others (civilians) presumed non-hostile and therefore protected from immediate attack. Neither of these presumptions is absolute; both may be rebutted based on the nature of the interaction with friendly forces. However, these presumptions add a modicum of clarity to an increasingly uncertain operational environment, clarity derived from the very nature of armed conflict and essential to protect both civilians and belligerents from the effects of overzealous or unjustifiably hesitant targeting authority

The Civil-Military Interface in 21st Century Armed Conflict – Private Military Contractors and the Principle of Distinction

Private military and security contractors have been the focus of international attention in recent years, largely due to their prominent role in the conflicts in Iraq and Afghanistan. Given the increased public scrutiny of private military and security contractors (PMSCs), there have been numerous academic articles, newspaper articles, books, and other public commentary, written on the phenomenon. A common theme underpinning nearly all these approaches is the question ‘how does one classify the contractor?’ Are they civilians, are they State agents, are they soldiers? For the law of armed conflict (or international humanitarian law (IHL) as it is also known), such classification is important because important consequences flow from such classification. The law of armed conflict outlines very specific rules regarding who may legitimately participate in armed conflict, and who may not. The law divides the population into two basic categories - combatants and civilians. Depending on one’s classification, specific rules regarding permissible conduct follow. Designation as a combatant brings with it immunity from the operation of certain domestic laws, provided the combatant obeys the international laws of armed conflict. Combatants may target other combatants, and be targeted themselves. Conversely, civilians are not to be made the subject of attack, nor may they take direct part in hostilities. This is known as ‘distinction’ – the principle that attempts to keep civilians safe from the effects of the conflict, and provides instruction to combatants regarding permissible targeting practices. The use of PMSCs complicates the application of the principle of distinction – are they civilians, combatants or mercenaries? Can they be targeted, and can they target other legitimate objects and objectives themselves? Are there laws that deal with PMSCs or do they exist in some legal grey-zone, leaving lawmakers and commentators scrambling to bring the law in line with reality? This paper will look at the issue of private military and security contractors under the law of armed conflict, and will look at recent attempts to better deal with PMSCs, assessing whether such recent attempts are adequate, inadequate or indeed necessary at all.

International Humanitarian Law and Prisoners of War

Although combatants and other persons taking a direct part in hostilities are military objectives and may be attacked, the moment such persons surrender or are rendered hors de combat, they become entitled to protection. That protection is provided for in Common Article 3 and the First and Third Geneva Conventions (GC) relating to the treatment of the ‘wounded, sick and shipwrecked’ and ‘prisoners of war’ (POW) respectively; supplemented (for international conflicts) by Additional Protocol I. These conventions are binding as treaty law, but the key provisions are in any event customary in nature. Humanitarian treatment of prisoners of war was not emphasized until the second half of the nineteenth century. The Hague Regulations did not prevent many of the hardships that prisoners suffered during World War I; they did provide an enlightened basis for regulation. Besides the failure to anticipate the problems that arose in World War I, the chief defect of the regulations were a lack of specificity and the absence of any enforcement procedures. After the First World War, a conference at Geneva adopted new, more elaborate rules. Like the prior rules, the new rules did not anticipate the new modes of warfare adopted in the Would War that followed their acceptance.

Chained to cannons or wearing targets on their T-shirts: human shields in international humanitarian law

AbstractThis article examines the legal problems associated with human shields. The author begins by discussing the absolute nature of the prohibition on their use and goes on to consider the precautions to be observed by the party being attacked. A violation of the ban on use of human shields by the attacked party is not an act of perfidy and does not release the attacker from his obligations. Because human shields are civilians, they are not legitimate objects of attack, even where they are acting in a voluntary capacity, as they are not taking direct part in hostilities. Among the attacker's obligations to take precautions, the proportionality principle applies in the classic way, even in the case of voluntary human shields.

A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killings Case

The comment critically discusses the application of the principle of proportionality by the Israeli Supreme Court in the Targeted Killings case. While the judgment confirms the customary status of the principle and its applicability to all Israel Defense Forces (IDF) military operations during armed conflicts, its substantive contents remain, as might have been expected, unclear. In particular, the application of the ‘least-injurious alternative’ subtest with regard to all civilians taking a direct part in hostilities is unsubstantiated and perhaps too sweeping. However, the reference by the Court to ex ante and ex post review mechanisms to monitor the application of the proportionality principle constitutes a positive contribution to its development under international humanitarian law, which might also have some implications for criminal prosecutions of soldiers and commanders involved in unlawful targeted killing operations.

The Targeted Killings Judgment: A Preliminary Assessment

This judgment is one of the most important contributions in recent years by a national court to the development of the laws governing armed conflicts between states and non-state actors taking place outside of the territory of the state involved. However, some contentious issues should not be passed over in silence. The Israeli Court applied the laws of international armed conflict to any case of armed conflict that crosses borders of the state even if the conflict does not involve belligerent occupation, without, however, providing any authority or explanation for this expansion of the class of international armed conflict. Furthermore, the Court rejected the Government's argument that a third category of ‘unlawful combatants’ exists under international law, but its analysis on the issue does not enable the reader to fully understand the substantive considerations leading to the Court's conclusion. Although the Court's reference to academic literature is welcome, it cannot replace an assessment of the sources and rules of international law. Finally, the Court set out various requirements restricting the Israeli government's attacks on terrorists taking direct part in hostilities. These requirements, however, go beyond what is commonly considered to be mandated under the laws of international armed conflict: it is difficult to find support for them in state practice or in less recent academic literature interpreting that body of law.