Notion Of Direct Participation Research Articles

The Legal Status and Targeting of Hacker Groups in the Russia-Ukraine Cyber Conflict

Abstract The armed conflict between Russia and Ukraine has been characterized by a considerable number of cyber operations by States and non-State actors in support to either party to the conflict. One year since the Russian invasion of Ukraine, the ‘Russia-Ukraine cyber conflict’ offers valuable insights for estimating the effectiveness of International Humanitarian Law in regulating the status and the conduct of individuals engaging in cyberspace operations during wartime. By discussing the status of hackers groups and individuals who have conducted cyber operations in support of Ukraine, this Article claims that the relevance of the concept of combatancy is diminished in the cyber domain, and that the notion of direct participation in hostilities must be adapted to the specific features of cyberspace. Furthermore, the article focuses on the issues relating to the targeting of individual who directly participate in hostilities by conducting cyber operations in support of Ukraine. By doing so, the Article argues that cyber direct participants place themselves at an increased risk of being attacked, even though the Russian armed forces are limited in their targeting decisions by the principles of proportionality and precaution.

The International Humanitarian Law Notion of Direct Participation in Hostilities – A Review of The ICRC Interpretive Guide and Subsequent Debate

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.

Editorial

The third issue of PER contains ten articles and one case note on a variety of themes. Shaun de Freitas shares his views on improper irreligious proselytism in religious rights and freedoms jurisprudence within a public school context and introduces an equitable and accommodative understanding of proselytism, which places the potentially harmful effects of both religious and irreligious beliefs on an equal footing with each other. Yvette Joubert and Juanitta Calitz analyse the role of the so-called private examinations in South African insolvency law and deal with the question of whether or not section 417 of the Insolvency Act 24 of 1936 is adequately and effectively framed in order to fulfil its intended purpose in South African law. Howard Chitimira gives a historical overview of the regulation of market abuse in South Africa. He concludes his contribution with a discussion by isolating certain flaws in the previous market abuse laws that were re-incorporated into the current South African market abuse legislation and makes recommendations in that regard. Juanita Jamneck discusses the contemporary meaning of the word "spouse" and the recognition of the family as an important social institution in the light of the provisions of the Intestate Succession Act 81 of 1987. Shannon Bosch reviews the scope and nature of "direct participation in hostilities" in international humanitarian law in the light of the Interpretive Guide on the Notion of Direct Participation in Hostilities issued by the International Committee for the Red Cross. The primary objective of the article by Vinesh Basdeo is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution. Eddie Hurter and Tana Pistorius examine the new .Africa Top Level Domain - an Africa initiative to ensure that Africa gets its rightful place in the global network. Geo Quinot tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. Thino Bekker discusses the scope and application of the integration rule in the South African law of contract and deals with the question if rectification can be utilised to avoid the strict application of the integration rule and consequently serve as an instrument for the (indirect) abolition or modification of the rule in the South-African law of contract. Yeukai Mupangavanhu discusses the case of Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ) in the light of the exemption clauses in the Consumer Protection Act 68 of 2008 (CPA). The case note, which is also the final contribution, by Martha Radebe evaluates the unconstitutional practices of the Judicial Service Commission under the guise of judicial transformation as they came to the fore in the case of the Cape Bar Council v Judicial Service Commission [2012] 2 ALL 143 (WCC).
 

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

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.

The ICRC Interpretive Guidance on DPH in the Domestic Legal Orders Sociological and Democratic Legitimacy

The Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (the ‘Interpretive Guidance’) issued by the ICRC in 2008 recommended two interpretive standards on 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 functions 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 article surveys the court decisions, military manuals and legal or policy documents in different domestic jurisdictions since the publication of the Interpretive Guidance to illustrate the different levels of the adoption of these standards in domestic legal orders. It then uses Franck’s theory of legitimacy to identify the possible legitimating factors that gave these standards the capacity to induce their adoption by domestic actors. Lastly it uses Habermas’ theory of deliberative democracy to examine whether and how the governance by these transnational standards of the people subjected to them may be justified by their democratic legitimacy.

الوضع القانوني للمدنيين المشارکين في العمليات العدائية

الوضع القانوني للمدنيين المشارکين في العمليات العدائية

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.

A legal analysis of how the International Committee of the Red Cross's interpretation of the revolving door phenomenon applies in the case of Africa's child soldiers

According to the International Committee of the Red Cross (ICRC) publication Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, all civilians (including child soldiers) lose their immunity from direct targeting ‘for so long as’ their actions amount to direct participation in hostilities. All civilians can, however, access the revolving door of protection and return to their civilian activities – complete with full immunity from direct targeting – provided the nature of their direct participation was spontaneous and disorganised. Once it can be ascertained that their participation in hostilities amounts to continuous combative functions, they relinquish their access to the revolving door of protection, and can be targeted at all times until they abandon their formal or functional membership of the belligerent group. This piece analyses how the revolving door phenomenon and the notion of continuous combative functions apply in instances where civilian child soldiers are directly participating in hostilities.

Civilian Direct Participation in Cyber Hostilities

This article studies the application of a well-known notion of international humanitarian law, civilian direct participation in hostilities, to cyber warfare. According to the principle of distinction, civilians and combatants must be distinguished in times of armed conflict. The shift of hostilities from the real world into cyberspace affects neither the definition of combatants nor the negative definition of civilians. However, beyond the classical approach of the principle of distinction, the changing character of warfare also concerns cyber warfare. Indeed, the distinction between battlefields and civilian areas is increasingly less clear and a rising number of non-combatants directly participate in hostilities in various ways. Cyber means, and the development of cyber warfare, offer numerous new possibilities for non-combatants who want to take part in hostilities. It has never been this easy for civilians to get involved in hostilities and most civilians are ignorant of the consequences of their actions. Recently, two groups of experts have released documents partly related to this topic with divergent conclusions: the first one is the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law adopted by the ICRC in 2009. The second one is the Tallinn Manual on the International Law Applicable to Cyber Warfare written at the behest of NATO’s Cooperative Cyber Defence Centre of Excellence. As these documents differ in their approach to reading of the topic, part of this article will analyze their divergences.

The International Humanitarian Law Notion of Direct Participation in Hostilities – A Review of The ICRC Interpretive Guide and Subsequent Debate

The International Humanitarian Law Notion of Direct Participation in Hostilities – A Review of The ICRC Interpretive Guide and Subsequent Debate

Review on the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law

Review on the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law

Direct Participation in Hostilities – A Discussion of the ICRC Interpretive Guidance

AbstractThe ICRC's published 'Interpretive Guidance on the Notion of Direct Participation' by civilians in hostilities contributes usefully to the debate but is flawed. It creates an imbalance between members of the armed forces on the one hand, who are targetable at all times, and members of organised armed groups who do not have a continuous combat function, and civilians who persistently participate in hostilities on the other, who are said to be protected during intervals between specific acts of hostility. This imbalance is exacerbated by assertions that there is a presumption at law that civilians are not directly participating, that to be DPH there must be a single causal step linking the civilian's activity with the hostilities, that voluntary human shields may not be direct participants and that periods of preparation for, deployment towards and return from acts of direct participation, during which a civilian is liable to lawful attack, must be interpreted restrictively. This article takes aspects of the interpretive guidance in turn, analysing them to determine their legal and practical acceptability. It concludes that states must consider the guidance with some caution before determining their own position on this vexed issue.

ICRC GUIDANCE ON DIRECT PARTICIPATION IN HOSTILITIES

AbstractThe ICRC, following extended discussions with a large group of experts, has adopted and issued a non-legally binding document entitled ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ consisting of ten recommendations and about fifty pages of related commentary. The discussion process which preceded production of the Interpretive Guidance was contentious and no consensus was reached on the issue of Direct Participation in Hostilities. As the result, the ICRC, as it was entitled to do, issued its own interpretation of the applicable law. The author of this article, who was involved in all of the expert meetings, reviews and comments on the Interpretive Guidance and attempts to make an assessment of its general viability and of its acceptability to the wider IHL community.

The ICRC’s Clarification Process on the Notion of Direct Participation in Hostilities Under International Humanitarian Law

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Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law

The present document resulted from an expert process initiated and conducted by the ICRC from 2003 to 2008. Dr. Nils Melzer, Legal Adviser at the ICRC, who has been responsible for the expert process since 2004, is the author of the Interpretive Guidance and most background documents and expert meeting reports produced during the process. The ICRC would like to express its gratitude to the experts, all of whom participated in the process in their personal capacity.

The Targeted Killings Judgment and the Scope of Direct Participation in Hostilities

The Judgment is the first in depth analysis of the notion of direct participation in hostilities in International Humanitarian Law. This notion encompasses the direct participation by civilians in hostilities in a broad variety of circumstances, ranging from full-time membership and participation in the activities of a group which is regularly engaged in attacks directed against a state or its citizens to participation in a single attack directed against the armed forces of the state. The Judgment focuses on activities at the high end of the spectrum. As such, it makes a very helpful contribution to thinking about the notion, particularly because of its emphasis on safeguards to ensure that attacks are proportionate, subject to external review and directed against persons who actually belong to such groups.