DIRECT PARTICIPATION IN HOSTILITIES

And

The CIVILIAN'S LOSS OF PROTECTION

Contents
1. Legal Setting and Problem

2. The ICRC Interpretive Guidance Document

Lawful Practice of Warfare: NECESSITY DISTINCTION PRECAUTION

BASIC RULE Civilians are PROTECTED against direct attack unless and for such time as they directly participate in hostilities.
AP I, Art. 51(3) AP II,Art. 13 (3) GC I-IV Common Art. 3 (1) Rule 6 CLS

D I S T I N C T I O N

Basic Targeting Rules

Civilian objects
"all objects which are not military objectives."
AP I, Art. 52 (1)

Military objects
" objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."
AP I, Art. 52 (2)

D I S T I N C T I O N

The Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
AP I, Art 48

In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.
AP I, Art. 50 (1)

P R E C A U T I O N S

Each party to the conflict must do everything feasible to verify that targets are military objectives All feasible precautions must be taken to avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects.

P R E C A U T I O N S

Parties must do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective

THE PROBLEMS:
Who may be directly attacked?
When does a civilian lose protection against direct attack? Which actions lead to this?

How long does it last?

What are the consequences?

ICRC Clarification Process

Interpretive Guidance Document (2003 2008) Aims to enhance protection of civilians from arbitrary targeting Not a law-making exercise: Gives ICRC Opinion

Who may be directly attacked?

State Armed Forces

Organised Armed Groups (Continuous Combat Function)

Civilians Directly Participating in Hostilities

Organised Armed Group?

Organised Armed Groups: Who?

1) Dissident (break away) Armed Forces from the State 2) Other non-State armed groups

Refers exclusively to the armed or military wing of a non-State party to the conflict.

The "armed military wing" of nonState party to the conflict

Not the same as "party to the conflict" itself: Not the political wing Not the administrative branch Not the humanitarian branch

Not based on abstract or arbitrary affiliation: Same ethnic group Family ties to fighters Geographic proximity

Organised Armed Group?

WHO in an Organised Armed Group may be targeted directly ?

ONLY those members who have assumed a "continuous combat function"

This DOES NOT equal "combatant privilege"

Problems with this?

Example: People running a training camp? Sleeper cells?

Who may be directly attacked?

State Armed Forces
Organised Armed Groups (Continuous Combat Function)

Civilians Directly Participating in Hostilities

Which Acts Constitute DPH

Threshold of Harm Direct Causation Belligerent Nexus
(cumulative)

Threshold of Harm
A specific act must be likely "to adversely affect the military operations or capacity of the enemy"

or
"to inflict death, injury, or destruction on persons or objects protected against direct attack"

Directly participating civilians?

Direct Causation
There must be a direct causal link between a specific act and the harm likely to result from it.

Not "war effort" or "moral support".

Not "indirect" causation

Belligerent Nexus
The hostile act must be "specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another".

Directly participating civilians?

When does a civilian lose protection?

Preparation Deployment Return

How long does it last?

CIVILIANS

lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities.

MEMBERS of ARMED FORCES

or groups of a party to the conflict lose civilian protection for the duration of their membership.

Can Civilians regain their Protection?

CIVILIANS
who have stopped directly participating

MEMBERS of ARMED FORCES

who have abandoned or disengaged from the Combat Function.

1. May no longer be attacked 2. May be arrested and prosecuted 3. Direct Participation not by itself prohibited in IHL

Thank You!