Spotlight On Issues Of Contemporary Concern In
International Humanitarian Law And International Criminal Law
THE CHALLENGES TO INTERNATIONAL HUMANITARIAN LAW
AND THE PRINCIPLES OF DISTINCTION AND PROTECTION FROM
THE INCREASED PARTICIPATION OF CIVILIANS IN HOSTILITIES
Avril McDonald1
1. INTRODUCTION
2. THE PRINCIPLES OF DISTINCTION AND PROTECTION AND
CONTEMPORARY CHALLENGES TO THEM
2.1
Defining civilians and civilian status
2.2
Threats to the principle of distinction
2.3.1
Contemporary trends in armed conflicts
2.3.2
The civilisation of the military
2.3.2.1 The privatization of formerly military functions
2.3.3
Terrorism and counter-terrorism
3. THE CONCEPT OF DIRECT PARTICIPATION IN HOSTILITIES
3.1 What is meant by the term ‘hostilities’?
3.2
What is meant by the term ‘direct participation in hostilities’?
3.2.1
Which types of activities constitute direct participation?
3.2.1.1 To what extent is the intention of the participant or the results achieved
relevant?
3.2.2. Which types of activities do not constitute direct participation?
3.2.3 Grey areas
3.2.4 The temporal element
3.2.5 In order to directly participate in hostilities, must there be a nexus with the
armed conflict?
3.2.6
In order to directly participate, does the civilian have to be a member of or
have a link with a party to the conflict?
4. THE CONSEQUENCES OF UNLAWFUL PARTICIPATION
5. CONCLUSIONS
1.
INTRODUCTION
Most of the casualties of modern conflicts, as is well known, are mainly
civilians and not soldiers. When these casualties are reported, the word
‘civilian’ is often prefaced by the adjective ‘innocent’, with the suggestion
being that there are other civilians who are not so innocent, and whose deaths
or injuries are not as unfortunate and haphazard as might at first appear.
This is a background working paper for a presentation by the author in April 2004 at the
University of Teheran at a Round Table co-hosted by the University of Teheran and the
Harvard University’s Humanitarian Law Research Initiative on the Interplay Between
International Humanitarian Law and International Human Rights Law. The author thanks
the organizers of the event, in particular, Professors Nasrin Mousaffa and Djamchid Momtaz
of the University of Teheran and Mr Claude Bauderlaine and Ms Margaret Kowalsky of
Harvard University.
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As a general principle, civilians are entitled to protected status under
international humanitarian law and may not be attacked. Moreover, the
greatest of care must be exercised in conducting military operations in order
to minimize civilian casualties. However, the laws of war recognize that some
civilians are more innocent and deserving of protection than others, and that
those who take a direct part in hostilities during an armed conflict forfeit their
protected status and may be attacked. Article 51(3) of the 1977 First Protocol
Additional to the 1949 Geneva Conventions (Additional Protocol I)
encapsulates this principle of protection, and its conditionality: ‘Civilians
shall enjoy the protection afforded by this section, unless and for such time as
they take a direct part in hostilities.’
Notwithstanding this recognition in the law that civilians do not always
deserved protected status, international humanitarian law applicable during
armed conflicts is premised on a fundamental assumption that war fighting is
the work and privilege of soldiers and that civilians are generally to be
considered as protected persons, at a remove from and not involved in
hostilities. While this supposition may have reflected the actuality of armed
conflict prior to the adoption of the four Geneva Conventions in 1949, it was
already becoming divorced from reality by the time of the adoption of the
Additional Protocols to the Geneva Conventions in 1977 and today
increasingly seems a quaint and archaic notion, out of step with the reality of
today’s wars.
The main fruit of the 1974-1977 Diplomatic Conference leading to the
adoption of the Additional Protocols was Additional Protocol I applicable in
international armed conflicts, which were even by then becoming increasingly
uncommon. Additional Protocol II, applicable in non-international armed
conflicts, is a pale shadow of that achievement, inadequate to regulate all or
many aspects of such conflicts, even though they were already becoming the
norm amongst armed conflicts, and responsible for the greater proportion of
civilian casualties.
While Additional Protocol I recognizes the traditional distinction between
combatants and civilians,2 Additional Protocol II—largely for political
reasons3—does not acknowledge the concept of combatancy during noninternational armed conflicts. Thus, aside from members of a state’s armed
forces, all persons taking up arms during a non-international armed conflict
Article 48 of Additional Protocol I (Basic Rule) provides: ‘In order to ensure respect for and
protection of the civilian population and civilian objects, 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.’
3 It was considered that to recognize combatant status for rebels would be to grant them
legitimacy, a bridge too far for most states represented at the Diplomatic Conference.
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are legally civilians and not combatants. Given that the vast majority of
conflicts around the world today are non-international in character, this
means that the majority of persons engaged in fighting them (or at least those
fighting as part of armed opposition groups against states) have no privileged
combatant status under international humanitarian law and are technically
‘unlawful’ or ‘unprivileged’4 combatants, that is, they are civilians who are
unlawfully engaged in combat and who may be punished for that fact alone
by the national authorities.5 As there is no legal distinction between
combatants and civilians during a non-international armed conflict, fulfilment
of the fundamental rule of protection of genuine civilians during a noninternational armed conflict depends on an understanding of what actions
trigger a loss of civilians’ protected status and expose them to legitimate
attack.
Even in an international armed conflict distinguishing between combatants
and genuine civilians is in reality not always easy or clear-cut. As states’
armed forces come to rely on civilians to perform an increasing number of
roles formerly the preserve of military personnel, the odds of a civilian being
involved in conflict, both directly and indirectly, have dramatically increased.
Decisive may be not the fact of wearing a uniform and carrying arms
(although in many cases, civilians do) but the nature and degree of an
individual civilian’s involvement in hostilities.
In relation to both non-international and international armed conflicts,
therefore, as well as other types of conflict which international humanitarian
law does not yet recognize, it is essential for the sake of upholding the
principle of protection of the so-called innocent civilian population to identify
criteria to assist in determining when an individual civilian crosses the
rubicon and becomes a de facto (if not a de jure) combatant, with all the
consequences that implies.
These are terms of art rather than terms with a precise and conventionally defined legal
meaning. See R.R. Baxter, ‘So-called ‘Unprivileged Belligerency’: Spies, Guerrilla, and
Saboteurs’, 28 BYIL (1951) pp. 323 at 328 where he states that ‘unprivileged belligerents’ are:
‘A category of persons who are not entitled to treatment either as peaceful civilians or as
prisoners of war by reason of the fact that they have engaged in hostile conduct without
meeting the qualifications established by Article 4 of the Geneva Prisoners of War
Convention of 1949 . . .’ According to Watkins: ‘An unprivileged belligerent is a civilian (ie. A
person not having combatant status) who takes part in hostilities thereby committing a
belligerent act and having neither the protection from attack associated with civilian status
nor qualifying for the privilege of being a prisoner of war.’ Colonel K.W. Watkin, ‘
Combatants, Unprivileged Belligerents and Conflicts in the 21 st Century’, Background Paper
prepared for the Informal High-Level Expert Meeting on the Reaffirmation and Development
of International Humanitarian Law, Cambridge, June 27-29, 2002, pp. 4-5.
5 Although Article 6(5) of Protocol II urges states at the end of the non-international armed
conflict to grant the broadest possible amnesty to persons who have merely participated in
the armed conflict (that is, excluding those who have committed crimes related to the conflict,
namely, war crimes).
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The exercise is complex and there are many uncertainties. It is beyond the
scope of this working paper to attempt any comprehensive analysis of the
problem or to propose considered solutions; that will require a far more in
depth analysis of the relevant legal issues and study of the roles that civilians
play in contemporary conflicts.6 This paper will confine itself to attempting to
identify and briefly comment on some of the legal problems arising out of the
phenomenon of increased civilian participation in hostilities.
Part 3 of the paper will therefore explore the following main legal questions:
What is meant by the term ‘direct participation in hostilities’? Which types of
activities constitute direct participation, and which types of activities do not?
Which are some of the gray areas? Is there a required mental element for
direct participation? What is the temporal duration of direct participation in
hostilities (i.e., the time during which unlawfully participating civilians may
be attacked)? What, if any, link must there be between a civilian participant
and both an armed conflict and a party to the conflict?
Part 4 will then examine some of the consequences of direct participation.
What if any residual protection do civilians who take a direct part in
hostilities enjoy under international humanitarian law and international
human rights law when they lose their protected status? What is the status of
civilians who unlawfully participate in hostilities upon capture? To what
extent are civilians who directly participate in hostilities criminally liable,
including for war crimes, under international humanitarian law? Finally, Part
5 draws a few conclusions.
Before turning to the substantive legal questions, some preliminary matters
must be addressed by way of background. In Part 2, therefore, the relevance
and fundamental importance of the principles of distinction and protection
are outlined, followed by a brief examination of some contemporary threats to
these norms.
2.
THE PRINCIPLES OF DISTINCTION AND PROTECTION AND
CONTEMPORARY CHALLENGES TO THEM
The principle of distinction is one of the foundation stones upon which the
edifice of international humanitarian law rests. As Fenrick has stated:
‘Military commanders are obligated to distinguish between civilian objects
The International Committee of the Red Cross and the TMC Asser Institute for International
Law are co-organising a series of high-level expert meetings in The Hague, in an effort to
shed more light on the subject of direct participation in hostilities. The first Joint Expert
Meeting took place in June 2003; the second meeting on 25 and 26 October 2004; and a third
meeting is planned for 2005.
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and military objectives and to direct their operations against military
objectives.’7
The principle of distinction was expressed as early as 1868 in the St.
Petersburg Declaration in the following words: ‘That the only legitimate
object which States should endeavour to accomplish during war is to weaken
the military forces of the enemy.’8 In other words, no military necessity
justifies direct attacks on civilians or civilian objects. Respect for the principle
is what makes it possible for humanitarian law to fulfil its aim of protecting
the civilian population from the consequences of armed conflict. According to
Watkins: ‘The ability of combatants to plan and conduct their operations and
defend the state, as well as the capacity of a state or the international
community to hold them accountable for failure, is significantly dependant
upon the clarity and relevance of the distinction principle.’9
Several key provisions of The Hague Regulations annexed to the 1907 Fourth
Hague Convention, the 1949 Geneva Conventions and their Additional
Protocols of 1977 enshrine the principle of distinction between civilians and
civilian objects and military objectives.
Article 25 of The Hague Regulations prohibits the attack or bombardment, by
whatever means, of towns, villages, dwellings or buildings which are
undefended. Article 27 states: ‘In sieges and bombardments all necessary
steps must be taken to spare, as far as possible, buildings dedicated to
religion, art, science or charitable purposes, historic monuments, hospitals
and places where the sick and wounded are collected, provided they are not
being used at the time for military purposes.’10
The whole thrust of the Fourth Geneva Convention of 1949 is towards
providing for the protection of civilians and civilian objects, in particular Part
II concerning the General Protection of Populations Against Certain
Consequences of War, and a number of provisions provide specific protection
from attacks against civilian objects, including Article 18 prohibiting attacks
on civilian hospitals11 and Article 33 concerning collective punishment and
reprisals against protected persons and their property.12
W. Fenrick, ‘The Law Applicable to Targeting and Proportionality after Operation Allied
Force: A View from the Outside’, 3 Yearbook of International Humanitarian Law (2003) pp. 53 at
66.
8 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400
Grammes Weight, Reprinted in A. Roberts and R. Guelff, Documents on the Laws of War, 2nd
edn. (Oxford, Clarendon Press 1989) pp. 30-31.
9 See Watkin, loc. cit. n. 4, p. 3.
10 Regulations Respecting the Laws and Customs of War on Land, Annex to the 1907 Hague
Convention IV Respecting the Laws and Customs of War on Land, Reprinted in Roberts and
Guelff, op. cit. n. 8, pp. 48 at 53.
11 Article 19 of the Fourth Convention provides: ‘The protection to which civilian hospitals are
entitled shall not cease unless they are used to commit, outside their humanitarian duties,
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Additional Protocol I augments these provisions of the Geneva Conventions,
without replacing them.13 The additional protections are set out in Part IV –
Civilian Population – of the Additional Protocol. Article 48 of Additional
Protocol I – Basic Rule – has already been alluded to.14 It is supplemented by
the very detailed Article 51,15 which sets out specific rules concerning the
acts harmful to the enemy. Protection may, however, cease only after due warning has been
given, naming, in all appropriate cases, a reasonable time limit, and after such warning has
remained unheeded.’
12 Article 33 of the Fourth Convention provides: ‘No protected person may be punished for an
offence he or she has not personally committed. Collective penalties and likewise all
measures of intimidation or of terrorism are prohibited.
Pillage is prohibited.
Reprisals against protected persons and their property are prohibited.’
13 Article 49(4) of Additional Protocol I provides: ‘The provisions of this Section [i.e., Section I,
General Protection against the Effects of Hostilities, of Part IV of the Additional Protocol] are
additional to the rules concerning humanitarian protection contained in the Fourth
Convention, particularly in Part II thereof, and in other international agreements binding
upon the High Contracting Parties, as well as to other rules of international law relating to the
protection of civilians and civilian objects on land, at sea or in the air against the effects of
hostilities.’
14 Supra n. 2.
15 Article 51 provides: ‘1. The civilian population and individual civilians shall enjoy general
protection against dangers arising from military operations. To give effect to this protection,
the following rules, which are additional to other applicable rules of international law, shall
be observed in all circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the object of
attack. Acts or threats of violence the primary purpose of which is to spread terror among the
civilian population are prohibited.
3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as
they take a direct part in hostilities.
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) Those which are not directed at a specific military objective;
(b) Those which employ a method or means of combat which cannot be directed at a
specific military objective; or
(c) Those which employ a method or means of combat the effects of which cannot be
limited as required by this Protocol; and consequently, in each such case, are of a
nature to strike military objectives and civilians or civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate:
(a) An attack by bombardment by any methods or means which treats as a single
military objective a number of clearly separated and distinct military objectives
located in a city, town, village or other area containing a similar concentration of
civilians or civilian objects; and
(b) An attack which may be expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage anticipated.
6. Attacks against the civilian population or civilians by way of reprisals are prohibited.
7. The presence or movements of the civilian population or individual civilians shall not be
used to render certain points or areas immune from military operations, in particular in
attempts to shield military objectives from attacks or to shield, favour or impede military
operations. The Parties to the conflict shall not direct the movement of the civilian population
or individual civilians in order to attempt to shield military objectives from attacks or to
shield military operations.
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protection of the civilian population against military operations; Article 52,16
which addresses general protection of civilian objects; Article 53, which
protects cultural and religious property; Article 54, which addresses
protection of objects indispensable to the survival of the civilian population;
Article 55, which addresses protection of the natural environment; and Article
56, which concerns protection of works and installations concerning
dangerous forces. Other articles in Part IV focus on other ways to increase the
protection of the civilian population, by, for example, the obligation to take
precautions in attacks (Article 57) and against the effects of attacks (Article
58). Articles 59 and 60 concern localities and zones under special protection.
Support for the principle of distinction has also come from other sources.
Resolution XXVIII adopted by the 20th International Conference of the Red
Cross and Red Crescent, held in 1965 in Vienna, declared that all governments
and other authorities responsible for action in armed conflict should, inter alia,
conform to the principle that distinction must be made at all times between
persons taking part in the hostilities and members of the civilian population
to the effect that the latter be spared as much as possible. The International
Court of Justice, in its Nuclear Weapons Advisory Opinion, stated that the
principle of distinction between combatants and non-combatants is one of the
cardinal principles of international humanitarian law, and that ‘these
fundamental rules are to be observed by all States whether or not they have
ratified the conventions that contain them, because they constitute
intransgressible principles of international customary law’.17
2.1
Defining civilians and civilian status
While the Fourth Geneva Convention of 1949 is exclusively devoted to the
protection of the civilian population, it contains no definition of civilian.
Under Article 4 of the Fourth Convention, persons protected by it are those
who, at a given moment and in any manner whatsoever, find themselves in
case of a conflict or occupation, in the hands of a Party to the conflict or
8. Any violation of these prohibitions shall not release the Parties to the conflict from their
legal obligations with respect to the civilian population and civilians, including the obligation
to take the precautionary measures provided for in Article 57.’
16 Article 52 provides: ‘1. Civilian objects shall not be the object of attack or of reprisals.
Civilian objects are all objects which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned,
military objectives are limited to those 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.
3. In case of doubt whether an object which is normally dedicated to civilian purposes, such
as a place of worship, a house or other dwelling or a school, is being used to make an
effective contribution to military action, it shall be presumed not to be so used.’
17 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, para. 79.
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Occupying Power of which they are not nationals.18 Article 3 indicates that
during non-international armed conflicts the persons who enjoy protection
against the various forms of violence and infringement mentioned are
‘[p]ersons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention or any other cause, without any adverse
distinction founded on race, colour, religion or faith, sex, birth or wealth, or
any other similar criteria.’
The first attempt in international humanitarian law to identify who are
civilians came in 1977 with Article 50 of Additional Protocol I (read together
with Article 4(A) of the Third Geneva Convention and Article 43 of the First
Additional Protocol). And yet, Article 50(1) avoids giving any definition of
civilians and instead defines civilians in the negative: civilians are all persons
who are not combatants. Paragraph 1 provides that civilians are persons who
are not (1) members of the armed forces of a Party to the conflict, as well as
members of militias or volunteer corps forming part of such armed forces; (2)
members of other militias and members of other volunteer corps, including
those of organized resistance movements, belonging to a party to the conflict
and operating in or outside their own territory, even if this territory is
occupied, provided that such militias or volunteer corps, including such
organized resistance movements, fulfill the four conditions of combatancy.19
The aforementioned combatants qualify for prisoner of war (POW) status
upon capture. Thus, civilian is a residual category: whoever is not a
combatant shall be deemed to be a civilian. But, ‘In case of doubt whether a
person is a civilian, that person shall be considered to be a civilian’. (Article
50(1) ‘The civilian population comprises all persons who are civilians’ (Article
50(2)). Significantly from the perspective of protection of the civilian
population: ‘The presence within the civilian population of individuals who
However, in the Čelebići case, a Trial Chamber of the International Criminal Tribunal for the
Former Yugoslavia (ICTY) found that civilians can be considered as protected persons under
Article 4 despite having the same nationality as the power in whose hand they find
themselves. Applying the Nottebohm test, as applied by the International Court of Justice in
the case of Liechtenstein v. Guatemala, ICJ Reps. (1955) pp. 4 at 23, the ICTY stated that ‘the
International Tribunal may choose to refuse to recognize (or give effect to) a State’s grant of
its nationality to individuals for the purposes of applying international law’. The Chamber
emphasised ‘the necessity of considering the requirements of article 4 of the Fourth Geneva
Convention in a more flexible manner. The provisions of domestic legislation of citizenship in
a situation of violent State succession cannot be determinative of the protected status of
persons caught up in conflicts which ensue from such events.’ Prosecutor v. Zejnil Delalić,
Zdravko Mucić also known as “Pavo”, Hazim Delić, and Esad Landžo also known as “Zenga”, Case
No. IT-96-21-T, Judgement, 16 November 1998, para. 263.
19 Set out in Article 1 of the Hague Regulations: ‘1. To be commanded by a person responsible
for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To
carry arms openly; and 4. To conduct their operations in accordance with the laws and
customs of war.’ Regulations Respecting the Laws and Customs of Land, Annex to 1907
Hague Convention IV Respecting the Laws and Customs of War on Land, Reprinted in
Roberts and Guelff, op. cit. n. 8, pp. 44 at 48.
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do not come within the definition of civilians does not deprive the population
of its civilian character.’ (Article 50(3)
Other sources similarly adopt a negative approach to defining civilians. The
United States Annotated Supplement to The Commander’s Handbook on the
Law of Naval Operations, for example, defines non-combatants as
‘individuals who do not form a part of the armed forces and who otherwise
refrain from the commission or direct support of hostile acts’.20 Watkins notes
that
‘that term also includes a more diverse mix of persons such as medical
officers, corpsmen, chaplains, contractors, civilian war correspondents
and armed forces personnel who are unable to engage in combat because
of wounds, sickness, shipwreck or capture (ie. POWs). Here, “noncombatant” is used in the context of those persons, civilian and military,
who should not be targeted and not in the sense of the
combatant/civilian distinction.’21
The quid pro quo for the special protected status enjoyed by civilians is that
they are strictly prohibited from participating in hostilities—except in the
exceptional case where they are participating in a levee en masse, in which case
they shall be regarded as belligerents provided that they carry their arms
openly and respect the laws and customs of war22—and if they do, they lose
the protections of the Fourth Geneva Convention and the Additional
Protocols safeguarding civilians from attack (although, as shown in Part 4,
they are not devoid of protection). However, legally, civilians who unlawfully
participate in hostilities are not transformed into combatants, even for the
duration of their unlawful participation and even if they de facto fulfil some of
the conditions of combatancy, such as carrying their arms openly and
respecting the laws and customs of war. They are what has become known
colloquially as ‘unlawful combatants’ or ‘unlawful belligerents’, that is, they
remain civilians, albeit ones who are unlawfully participating in hostilities.
International humanitarian law applicable in non-international armed
conflicts does not explicitly distinguish between combatants and civilians (as
it does not recognize combatant status) yet it does recognize that persons who
do not take part in hostilities retain their protected status as civilians (and
A.R. Thomas and J.C. Duncan, eds., Annotated Supplement to The Commander’s Handbook on
the Law of Naval Operations, 73 International Law Studies (1999) pp. 296-297.
21 Watkin, loc. cit. p. 4.
22 Article 2 of the 1907 Hague Regulations Respecting the Law and Customs of War on Land
provides that: ‘The inhabitants of a territory which has not been occupied, who, on the
approach of the enemy, spontaneously take up arms to resist the invading troops without
having had time to organize themselves in accordance with Article 1 [the qualification of
belligerents], shall be regarded as belligerents if they carry arms openly and if they respect
the laws and customs of war.’
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implies that those who do, lose it). Under Article 4(II) of Additional Protocol
II:
‘All persons who do not take a direct part or who have ceased to take
part in hostilities, whether or not their liberty has been restricted, are
entitled to respect for their person, honour and convictions and religious
practices. They shall in all circumstances be treated humanely, without
any adverse distinction. It is prohibited to order that there are no
survivors.’
Equally, Additional Protocol II provides that those civilians who do
unlawfully participate in hostilities shall lose their protected status as
civilians. Article 13(3) provides: ‘Civilians shall enjoy the protection afforded
by this Part, unless and for such time as they take a direct part in hostilities.’
2.2
Threats to the principle of distinction
The principle of distinction is a corollary of the principle of protection:
without the former, the latter is impossible to uphold. However, the paradigm
of lawful combatants on the one side, engaged in fighting, and innocent
civilians on the other side, not involved in and protected from hostilities,
hardly reflects the reality of conflict today, if it ever did. The sanctity of the
principles of distinction and protection is threatened by a number of
contemporary phenomena. Several particularly significant ones deserve
mention.
2.3.1 Contemporary trends in armed conflicts
As noted above, the distinction between combatants and civilians is rooted in
international humanitarian law applicable in international armed conflicts,
conflicts which comprise a very small minority of contemporary armed
conflicts. Further, today’s non-international armed conflicts barely conform to
the model envisaged by international humanitarian law for such conflicts. The
principle of distinction is rarely observed in practice in such conflicts. Such
conflicts may not be confined to the territory of a single state, yet international
humanitarian law does not recognize or regulate non-international armed
conflicts fought between various armed groups on the territory of more than
one state, or the challenge to international peace and security presented by
localized or transnational terrorism. It is unclear whether it recognizes the
possibility of an armed conflict that is fought by an armed opposition group
against a state not of its nationality, or various other possible permutations of
conflict, which are no longer merely theoretical possibilities.
Clausewitz’s trinitarian model of war, as a battle fought between sovereign
states, which are composed of a government, an army and the people, seems
increasingly anachronistic in a world in which many conflicts involve clashes
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between opposing ethnic, racial or religious groups within one or more states,
or where the goal of the fighting does not conform to the Clausewitzian view
of military strategy as the continuation or advancement of (the state’s)
political ends23 but may be driven by rivalry amongst groups for control over
scarce resources, or by religious or ethnic hatred or competition, etc. 24 In such
conflicts, the ambition may not be a resolution of and end to the conflict in
one’s favour but the continuation of instability and lawlessness in order to
promote a climate which allows business interests to thrive and criminality to
flourish. Simmering, low-level conflicts in some states and regions can
provide a cover for lucrative organized crime, including trafficking in drugs,
arms and people.25
In some countries, the government has lost the monopoly on violence. Armed
opposition groups may pose a threat to state security, and where a state does
not exercise full control over its territory, warlords or criminal syndicates
often yield de facto authority. Many states today suggest that their security is
even more threatened by terrorists, in particular the possibility of terrorists
yielding weapons of mass destruction or so-called ‘dirty bombs’, than by
other states, although the exaggeration of the threat for political ends cannot
be discounted.
There is also the effect of shifting allegiances and identities to consider:
civilians within a state may have transferred their primary allegiance from
their state of nationality or residence to a religion or to a non-state actor. This
may in some states be exacerbated by the fact that the relationship between
states and their citizens is in reality often far removed from the Weberian
ideal.
2.3.2 The civilisation of the military
The past decades have seen the increasing civilianization of the military in
many states, but especially in the United States, home to the world’s most
powerful military, and the involvement of civilians in many former military
tasks.26 Civilians are increasingly recruited to design, manufacture, maintain
and operate several weapons systems and are involved in some tasks that
could potentially be considered as direct participation in hostilities when
carried out in the context of an armed conflict. This is confirmed by the US
Department of the Army, which stated that:
The views of the Prussian military strategist, Karl von Clausewitz, are set out in his classical
work, On Warfare (London, Penguin Classics 1982). He is most famous for his view that war
is the continuation of politics by other means.
24 For a discussion of some of the new manifestations of conflict see H. Münkler, ‘The Wars of
the 21st Century’, 85 International Review of the Red Cross (2003) p. 7.
25 For a cogent analysis of the changing nature of war away Clausewitz’s Trinitarian model,
see M. Van Creveld, The Transformation of War (New York, The Free Press 1991).
26 For a good general overview see M.E. Guillory, ‘Civilianizing the Force: Is the United States
Crossing the Rubicon?’ 51 Air Force Law Review (2001) p. 11.
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‘Historically, civilians have played an important role in the conduct of
U.S. military operations. More recently, Army civilians have established
themselves as an integral and vital part of America’s Army team. With
distinction, they perform critical duties in virtually every functional facet
of Combat Support and Combat Service Support, both at home and
abroad. Serving beside their deployed uniformed compatriots they also
provide the critical skills necessary to assure the availability of essential
combat systems and weaponry; thereby maximizing the fighting
capability of the combat soldier and success of the Army wartime and
emergency missions.’27
A significant factor driving civilianization is cost. It is considered that ‘the
transfer of functions performed by military personnel to civil service
personnel is one way to save costs while affecting force effectiveness
minimally’.28 Research carried out by the RAND Corporation found that
‘civilization can produce cost savings under many, but not all,
circumstances’.29 Civilians come without their families and the perceived
need for the same support structures as military personnel. Civilians receive
less investment in training and education. In particular, they can be employed
on flexible terms, as the need arises. Downsizing or upsizing of civilian
employees is much easier than of military employees. Of course, the lack of
investment in civilian personnel, including in their education and training,
could also have negative consequences.
Technology is another factor driving civilianization. Advances in weapons
technology outpace the ability of the military to train its own. Some weapons
systems come as ‘package deals’, which include maintenance, training and
even operation by civilians.30 As some states, in particular the USA, come to
rely increasingly on high-tech and computer-driven warfare, reliance on
civilian experts will only increase.
Due to the technological advantage it enjoys in conducting war, the US
currently has the luxury of being able to strike targets thousands of miles
away, but yet enjoy relative immunity from counter-attack. Thus, the
consequences that its widespread and growing civilisation of the military has
for the concept of direct participation have not yet become fully manifest: the
chickens have not yet come home to roost. The civilians who maintain and
US Department of the Army Pamphlet 690-47, Civilian Personnel, DA Civilian Employee
Deployment Guide, Headquarters of the Army, 1 November 1995.
28
Rand Research Brief 7520 (1998): Can Civilianization Save on Costs?’
http://www.rand.org/publications/RB/RB7520/.
29 S.M. Gates and A.A. Robbert, Comparing the Costs of DoD Military and Civil Service Personnel,
RAND National Defense Research Institute, MR-980-OSD, 1998.
30 See on this point M.N. Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed
Conflict’, Festscrift for Dieter Fleck (forthcoming 2004), pp. 501 at 509. (Thanks to the author
for providing an advance copy.)
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operate its weapons systems that are used in combat in Iraq, for example, and
who may be located a continent away from the targets that they strike
probably do not consider that they are directly participating in hostilities in
Iraq, although probably they are, and they remain for the moment immune
from attack given the limited capabilities of Iraq or the various resistance
groups which the coalition is fighting. But had Iraq been able to launch longrange missiles at such targets in the US, it would be difficult to argue that it
was doing anything other than striking legitimate military targets.
Finally, it is important to note that some civilians deployed in combat
situations are physically almost indistinguishable from military personnel.
They may wear uniforms, body armour, helmets, etc. Even though US
civilians working for the military have to wear a distinguishing patch on their
uniform, this would hardly be sufficient to avoid the enemy confusing them
with combatants.31
2.3.2.1 The privatization of formerly military functions
The trend in recent years has been away from direct employment of civilians
by the armed forces and towards privatisation or corporatiation of the
military. In the US, inter alia, many formerly military functions have been
privatised, in particular, logistics and maintenance functions.32 The Armed
Forces have contracts with hundreds of defense contractors, which provide an
array of services. Many military subcontractors are former military personnel.
Although now civilians, they are hired because of their military training, often
to engage in tasks requiring military skills and which raise the question of
their direct participation in hostilities. According to Ricks:
‘Faced with the need to cut personnel, and seeking to preserve its warfighting “tooth,” the post-Cold War military has sought to privitize
much of its support “tail.” This privitization, which promises to reduce
the number of soldiers in civilian occupations, is occurring not only on
U.S. soil, where maintenance work is being farmed out to corporations,
but also in other countries where U.S. soldiers operate.’33
According to Markusen:
‘Since the 1970s, the share of American defense effort performed directly
by members of the armed forces and Pentagon-employed civilians has
declined substantially, while that performed by employees of private
See Department of the Army, Pamphlet 690-47, DA Civilian Employee Deployment Guide
(1 November 1995); Department of the Air Force, Instruction 36-801, Personnel, Uniforms for
Civilian Employees (29 April 1994).
32 Supra n. 27.
33 T.E. Ricks, ‘The widening gap between the military and society’, The Atlantic Monthly, July
1997. http://www.theatlantic.com/issues/97jul/milisoc.htm.
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sector firms has risen, for everything from whole weapons system to
operations support and troop training. Since the mid-1990s, politically
well organized constituencies have pressed for more privitization. In the
past two years, the Pentagon has accelerated its efforts to outsource
under the rubric of the Revolution in Military Business Affairs and has
begun experimenting with military training contracts in selected
international spheres of operation.’34
Today, civilian subcontractors are engaged in a wide range of services for the
military in the US and elsewhere, including: operations planning;
maintenance and logistics expertise; computer and communications technical
support; weapons manufacture, maintenance and operations; engineering;
information and electronic warfare operations; space operations; intelligence
gathering and analysis; scientific research and development; security;
administration, managerial and logistical support; humanitarian aid delivery;
fire fighting; catering; and mail delivery. In fact, there is almost no area of the
US Armed Forces where civilian subcontractors do not play a vital role.
2.3.3 Terrorism and counter-terrorism
Terrorism constitutes a fundamental and deliberate attack on the principles of
distinction and protection. Indeed, not only do some terrorists demonstrate a
lack of precision and precaution in their tactics or a cavalier attitude to
civilian safety, often their very purpose and aim is to attack civilians and
inflict as much damage, suffering and fear as possible. Terrorists who attack
civilians within the context of an actual armed conflict are civilians
unlawfully participating in hostilities, if they have a nexus to the armed
conflict, and terrorism constitutes a war crime.35
What is prohibited during warfare in a fortiori prohibited during peacetime.
Terrorist attacks against civilians in peacetime, while not violations of
international humanitarian law (which does not apply, as the conditions
precedent for its application do not exist) are prohibited under international
criminal law and the national criminal law of every state.
While nothing justifies callous terrorist attacks on civilians, unfortunately
sometimes counter-terrorist reactions of states are equally blunt. States
reacting to terrorist violence often overreact and demonstrate a less than
A. Markusen, ‘The Case Against Privatizing National Security’, Paper dated 24 September
1999 prepared for discussion at the Study Group on the Arms Trade and the
Transnationalization of the Defense Industry, Council on Foreign Relations, New York, 1
October 1999. http://www.cfr.org/public/armstrade/MarkusenNatSec.html.
35 Article 51(2) Additional Protocol I provides: ‘… Acts or threats of violence the primary
purpose of which is to spread terror among the civilian population are prohibited.’ Article
4(2)(d) of Additional Protocol II prohibits ‘[a]cts of terrorism’.
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exemplary regard for the principles of distinction and protection of the
innocent civilian population.
The noticeable tendency by some states during the ‘war on terror’,
particularly the USA, to apply conduct of hostilities rules to attacks against
terrorists undertaken outside the context of an armed conflict also challenges
the principle of distinction. Peacetime security operations are becoming
increasingly militaristic, and states are justifying resort to lethal force against
civilians, for example, on the grounds that the latter are ‘directly
participating’ in terrorism. Increasingly, states are asserting that, when faced
with an unconventional and ruthless enemy, such as terrorists, new methods
of policing and combat and an unconventional military response may be
required. In the new security environment, the lines between war and peace
are blurred, and civilians are becoming targeted in operations which are
military in all but name. By the same logic, the persons involved in fighting
the war on terror, who are mainly civilians, could be considered to be directly
participating in these ‘hostilities’. For example, the CIA was responsible for
the operation conducted in Yemen whereby an unmanned military drone
fired a hellfire missile at a car carrying six suspected terrorists.36
3.
THE CONCEPT OF DIRECT PARTICIPATION IN HOSTILITIES
It should be noted at the outset that great uncertainty surrounds several
aspects of the concept of direct participation by civilians in hostilities, and this
area of the law merits close examination. The need for clarity is obvious,
given the serious consequences that result from unlawful participation and
the danger to innocent civilians posed by unlawful combatants. Not only does
the unlawful participant jeopardise his or her own security and safety but he
or she potentially exposes other civilians to danger, directly and through
contributing to a weakening of the principle of distinction.
3.1 What is meant by the term ‘hostilities’?
Hostilities has a narrower meaning than armed conflict. According to the
Dictionary of the International Law of Armed Conflict, hostilities means ‘an act of
violence by a belligerent against an enemy in order to put an end to his
resistance and impose obedience’.37 Needless to say, the hostilities must occur
within the context of an armed conflict, whether international and noninternational. The term ‘armed conflict’ refers to the sum of the hostilities,
from the outbreak of conflict to its resolution. Hostilities are violent incidents
occurring within that timeframe.
See S.M. Hersh, ‘Manhunt: The Bush administration’s new strategy in the war against
terrorism’, The New Yorker, 23 and 30 December 2002.
37 P. Verri, Dictionary of the International Law of Armed Conflict (Geneva, ICRC 1992) p. 57.
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The term hostilities has both a temporal and a material aspect. Regarding the
former, hostilities covers both the time spent in the preparation for, the
execution of and the return from an attack. According to the authoritative
ICRC Commentary on the Additional Protocols: ‘It seems that the word
“hostilities” covers not only the time that the civilian actually makes use of a
weapon, but also, for example, the time that he is carrying it, as well as
situations in which he undertakes hostile acts without using a weapon.’38
Regarding the material aspect, hostilities covers acts of war which are
specifically intended by their nature or their purpose to hit the personnel and
the materiel of the armed forces of the adverse Party.39
3.2
What is meant by the term ‘direct participation in hostilities’?
To take a direct part in hostilities is usually taken to mean to engage in a
specific attack or attacks on an enemy combatant or object during a situation
of armed conflict. Article 49(1) Additional Protocol I explains that: ‘Attacks’
means acts of violence against the adversary, whether in offence or defence.’
The ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY)
in its judgement in Prosecutor v. Krnoljelac said that: ‘An “attack” can be
defined as a course of conduct involving the commission of acts of violence.
The concept of “attack” is distinct and independent from the concept of
“armed conflict”. In practice, the attack could outlast, precede, or run parallel
to the armed conflict, without necessarily being a part of it.’40
Both the terms ‘direct’ and ‘active’ participation in hostilities occur in Geneva
law, although it can be questioned whether there is any substantive difference
between them. Many commentators use these terms interchangeably.41
According to Dinstein: ‘In essence, taking an active part in hostilities (which
negates the status of civilians) implies participation in military operations.’42
The jurisprudence of the ad hoc International Criminal Tribunal for Rwanda
(ICTR) indicates that there is no substantive difference between the terms
‘active’ and ‘direct’. In the Akayesu Trial Judgement, the Trial Chamber found
that these terms should be treated synonymously.43
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August
1949, Y. Sandoz, C. Swinarki and B. Zimmerman, eds. (Geneva, ICRC/Martinus Nijhoff 1987)
(Geneva, ICRC 1987) para. 1943, pp. 618-619.
39 Ibid., para. 1942, p. 618.
40 Prosecutor v. Milorad Krnojelac, Case No. IT-97-25, 15 March 2002, para. 54.
41 Y. Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict
(Cambridge, Cambridge University Press 2004) p. 152.
42 Ibid., p . 152.
43 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, 2 September 1998, para. 629.
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3.2.1 Which types of activities constitute direct participation?
According to the ICRC Commentary on Additional Protocol I: ‘Direct
participation in hostilities implies a direct casual relationship between the
activity engaged in and the harm done to the enemy at the time and place
where the activity occurs.’44 The Commentary on Additional Protocol II states
in a similar vein that: ‘The notion of direct participation in hostilities implies
that there is a sufficient casual relationship between the act of participation
and its immediate consequences.’45
But, in fact, this view, like the term ‘direct participation in hostilities’ itself is
somewhat misleading as it suggests that only direct participation in a literal
sense in activities amounting to attacks or which enable the launching of
attacks on an enemy are covered. On the contrary, it is generally and
increasingly considered that there are many activities which involve a more
indirect role for civilians, where the civilian is one or more steps
(geographically or temporally) away from the actual application of violence
(which may be virtual rather than physical) and may not even consider him or
herself to be a direct participant in hostilities, and which do not actually
involve attacks in the literal or kinetic sense, or where the causality
relationship is more indirect, yet which are also considered as direct
participation in hostilities.
One can observe that at both ends of a spectrum of activities lie acts about
which there appears to be consensus or at least little controversy that they
constitute direct participation in hostilities or that they do not. It is those that
lie somewhere in between that give rise to uncertainty.
Before focusing on the difficult cases, it is useful to first identify what are
generally considered as clear-cut cases of direct participation by civilians in
hostilities. According to Kalshoven: ‘’[T]o take a direct part in hostilities’ must
be interpreted to mean that the person in question performs hostile acts,
which, by their nature or purpose, are designed to strike enemy combatants
or materiel; acts in other words, such as firing at enemy soldiers, throwing a
Molotov-cocktail at an enemy tank, blowing up a bridge carrying enemy war
materiel, and so on.’46 The US Navy manual states:
‘Civilians who take a direct part in hostilities by taking up arms or
otherwise trying to kill, injure, or capture enemy personnel or destroy
enemy property lose their immunity and may be attacked. Direct
participation may also include civilians serving as guards, intelligence
agents, or lookouts on behalf of military forces. Direct participation in
hostilities must be judged on a case-by-case basis. Combatants in the
Commentary, op. cit. n. 40, op. cit., para. 1679.
Ibid., para. 4787.
46 See F. Kalshoven and L. Zegveld, Constraints on the Waging of War (Geneva, ICRC March
2001) p. 99.
44
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field must make an honest determination as to whether a particular
civilian is or is not subject to deliberate attack based on the person’s
behavior, location and attire, and other information available at the
time.’47
A person who delivers ammunition within combat zones is generally
considered to be directly participating in hostilities.48 Yet, in this case, these
persons are not themselves directly participating in an actual attack, but
engaging in an activity which makes possible the direct participation in an
attack by another person. Still, they are considered by most authorities to be
legitimate military targets for the duration of their participation.
Civilians do not have to be located in the zone of hostilities or bear arms
themselves in order to be considered as direct participants in hostilities and as
subject to attack themselves. Where civilians are involved in operating
weapons systems during situations of hostilities, even where they are at a
geographical remove from the zone of hostilities, they can be considered as
directly participating. For example, civilians manning computers which
remotely control drones flying over foreign territory, gathering intelligence,
selecting targets, or engaging in attacks, could certainly be considered to be
directly participating in hostilities. Civilians involved in computer network
attacks against an enemy could also be said to be directly participating in
attacks.
The essential contribution that certain civilians make to the war effort may
render them targetable. For example, certain civilians participating in
strategic weapons programs, and at a geographical remove from the
hostilities, could be considered as directly participating in hostilities and
liable to attack. In 1989, a US memorandum of law concerning the prohibition
of assassination stated:
‘The technological revolution in warfare that has occurred over the past
two centuries has resulted in a joining of segments of the civilian
population with each nation’s conduct of military operations and vital
support activities. … one rule of thumb with regard to the likelihood that
an individual may be subject to lawful attack is his (or her) immunity
from military service if continued service in his (or her) civilian position
is of greater value to a nation’s war effort than that person’s service in
the military.’49
U.S. Navy/Marine Corps/Coast Guard, The Commander’s Handbook on the Law of Naval
Operations
(NWP
1-14M,
MCWP
P5800.7,
para.
11.3
(1995).
http://www.cpf.navy.mil/pages/legal/NWP%201-14/NWPCH11.htm.
48 A.P.V. Roger, Law on the Battlefield (Manchester, Manchester University Press 1996) p. 8.
49 US Executive Order 12333 and Assassination, Memorandum prepared by the Chief of the
International Law Branch, Office of the Judge Advocate General, Department of the Army, 2
November 1989.
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The memorandum gives the example of civilian scientists occupying key
positions in a weapons program that is regarded as vital to a state’s national
security or war effort. It noted that the participation of civilians in the
Manhattan Project (more than 90 percent of the staff were civilians) was of
such importance that they could have been considered as liable to attack.
Mike Schmitt has proposed a ‘criticality’ test, specifically ‘the criticality of the
act to the direct application of violence against the enemy’.50 He states that ‘an
individual performing an indispensable function in making possible the
application of force against the enemy is directly participating. In other
words, the appropriate test is whether that individual is an integral facet of
the uninterrupted process of defeating the enemy.’51
3.2.1.1 To what extent is the intention of the participant or the results achieved
relevant?
It was stated above that some persons who might be considered as direct
participants in hostilities might not actually be aware of their participation,
begging the question, to what extent is the civilian’s state of mind relevant.
What type of mens rea must a civilian possess in order to be considered as a
direct participant in hostilities? It seems that one necessary mental element is
that the civilian participant must intend to gain a military advantage or cause
harm to the enemy. Indeed military responses to unlawful civilian
involvement in hostilities acknowledge that there must be a certain intention
on the part of the civilian who participates. This is clear even from the
Commentaries to the First Additional Protocol, which states that direct
participation encompasses ‘act which by their nature and purpose are
intended to cause actual harm to the personnel and equipment of the armed
forces’.52
Suppose that a civilian peace activist in a state under occupation decides to
destroy the enemy’s fighter planes, not in a bid to further the war effort (i.e.,
consciously to attain a military advantage) but for the opposite reason: in
order to make a political protest against war and occupation and prevent the
use of those planes for attacks on civilians. Is such a person taking a direct
part in hostilities or engaging in an act of civil disobedience (albeit one that is
a crime)? Most if not all military persons would argue—and correctly, it is
submitted—that such an action constitutes direct participation in hostilities,
as the destruction of the planes causes harm to the enemy and has a direct
military consequence for the armed forces, as it lessens their ability to wage
war.
See Schmitt, loc. cit. n. 30, pp. 501 at 505.
Ibid., at p. 525.
52 Commentary, op. cit. n. 38, para. 1942.
50
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In this respect, while ‘intention’ is important, it is the intention to
participate (that is, to engage in the activities actually engaged in and to cause
harm or gain a military advantage by doing so) that is important, not the
political or other motivation underlying the participation. In the above
example, the civilian protester clearly intends to engage in actions that
produce the result (the destruction of the planes). Whether his motivations are
‘positive’ (he is really peace-loving) or negative , while not entirely irrelevant
to the decision to target him, would not render him immune from attack, and
in any case, such ‘subjective’ intentions are in many cases impossible to
discern: in this sense, objective intention, as in the intention to participate in
hostilities, must be distinguished and separated from (possible political)
subjective motivation.
Another question to consider is to what extent the impact of participation of a
civilian in hostilities should be considered. That is, should a results-oriented
approach be adopted or an objective intention-oriented approach (in the
narrow sense used above) or both? This is particularly relevant with regard to
the choice of weapon used.53 Arguably, the results of the participation should
not be determinative of a civilian’s participation. When the question of
whether or not an individual civilian is considered to be directly participating
in hostilities is made contingent on the actual effects achieved, it leaves too
much to chance. If a civilian lobs a hand grenade at a soldier during an armed
conflict, few would argue with the proposition that he intends to inflict
serious injury or harm and is a direct participant in hostilities. His objective
intention is discernable from the choice of weapon used. If the hand grenade
misses its target and ends up in a river, is the civilian’s act any less illegal, or
is he any less of a (future) military threat?
What if a child throws a stone at a soldier on patrol during a situation of
occupation? In this case, the choice of weapon could indicate a certain
intention (or lack of) on the part of the assailant. If he had wanted to
participate in hostilities and thereby inflict actual harm, he might better have
chosen a Molotov cocktail. The fact that he has chosen as his weapon a stone
could mean that he merely intends to express his dissatisfaction with the
occupation. Still, accidents can happen and it is possible that the stone could
strike the soldier in the head, inflicting a mortal blow. Should his bad luck in
killing the soldier (a results-oriented approach) magically transform him from
a protester into a war criminal? A child who fires a Molotov cocktail at a
It should be noted that the fact of a civilian being armed in a zone of hostilities should not
of itself be sufficient to transform a peaceful civilian into a direct participant in hostilities. The
weapon could be carried for various legitimate reasons, including personal self-defense. It
would at least be necessary for the weapon to be used, with hostile intent, against an enemy
combatant or military objective in order for the civilian to be considered as a direct
participant.
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soldier might reasonably expect to inflict serious harm on the recipient. Yet,
fate might intervene, and the Molotov cocktail could miss its target.
These examples hopefully illustrate that there are difficulties with a resultsoriented approach. For one thing, it leaves too much to chance: a civilian may
intend to directly participate, with the goal of achieving a military advantage,
but he may fail in his attempt, or even be less successful than he had hoped.
But for all that, he is no less of a direct military threat, including an ongoing
threat. Indeed, his initial failure may simply spur him on to try again.
Apropos the example of the child throwing a stone, one can argue that a child
is not in a position to form the necessary intention to directly participate in
hostilities, and the presumption vis-à-vis every minor should be that they are
not direct participants unless there is a preponderance of evidence to the
contrary (which the use of weapon could signify). It should also be mentioned
that any military response, even to a direct attack, must be proportionate.
Even if the child is concerned to be a direct participant in hostilities, a
proportionate response (one that is informed by the rules of international
humanitarian law) would not involve the use of live fire or even plastic
bullets.
While it can validly be argued that in the cut and thrust of a situation of
armed conflict, there is simply no time to look at the intention motivating an
act, the idea is not to try and read the minds of civilians engaged in hostilities
but to discern their intention from the available evidence, on a case-by-case
basis. This seems indeed to be consonant with the above-quoted US Navy
Manual, which enjoins combatants in the field to judge each action on its own
merits, and consider all the available information at the time before reacting.
Clearly, wars can only be waged and responses calibrated based on visible
and discernable action, not on the unknown (and possibly unknowable)
intention of an assailant. Bearing in mind that where reactive force is used, it
must be proportionate and militarily necessary, one could argue that where a
civilian’s clear (on its face) intention is not the gaining of a military advantage
or the infliction of harm on the enemy, he is probably not directly
participating in hostilities.
3.2.2. Which types of activities do not constitute direct participation?
While, as noted above, making an essential contribution to the war effort
could involve a civilian in direct participation, a non-essential contribution to
the general war efforts (e.g., by supplying foodstuffs to combatants) is not
tantamount to active participation in hostilities.54 Thus, working in a
munitions factory, supplying food to combatants, transport of food or
54
Dinstein, op. cit. n. 41, pp. 27-28.
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humanitarian supplies, etc. are not considered to constitute direct
participation. According to A.P.V. Rogers:
‘Taking a direct part in hostilities must be more narrowly construed than
making a contribution to the war effort and it would not include taking part
in arms production or military engineering works of military transport.’55
Combatants clearly rely on the munitions made in the factories where
civilians work and are equally dependent on the food they are supplied with.
But in this case, the causality is too remote, and there is also no objective
intention on the part of these civilians to participate. The civilian does not
intend to harm the enemy by his actions or to gain any military advantage.
Notwithstanding the importance of certain key scientists to a military effort,
most civilian scientists working for the military could not be considered as
directly participating in hostilities where they are merely participating in the
war effort. However, where by their work civilians put their own lives in
danger, they cannot claim the protection against attack. As Kalshoven points
out: ‘civilians cannot enjoy protection from attack when they enter military
objectives (e.g., by working in a military base or in a munitions factory) or
accompanying military units. This protection is diminished even when
civilians merely live near – or pass by – a military objective, by dint of the
very tangible danger of a legitimate collateral damage in case of attack.’56
3.2.3 Grey areas
There are numerous grey areas as concerns the question of civilian
participation in hostilities and this working paper can only point out a few.
Among those activities giving rise to particular concern include intelligence
gathering, rescue operations and the defensive use of force.
Regarding intelligence gathering, Dinstein distinguishes between a person
who gathers military intelligence in enemy-controlled territory and a civilian
who retrieves intelligence date from satellites or listening posts, working in
terminals located in his home country.57 The former, in his view, would be a
direct participant, while the latter would not. Yet, what is really the essential
difference between them? These days, vital intelligence, including target
identification, may be gathered by drones remotely controlled by civilians
located thousands of miles away. Such a person may not be ‘directly’
participating in as much as he may not actually be engaged in carrying out a
direct attack, but the information he gathers makes that attack possible, and
without it, it would not be possible to attack that target. There is a clear link
and causality can be shown. He is as much of a direct participant—and his
Roger, op. cit. n. 48, p. 7.
Kalshoven and Zegveld, op. cit. n. 46, p. 129.
57 Dinstein, op. cit. n. 41, pp. 27-28.
55
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contribution to the war effort is just as vital—as the person who drives the
truck that delivers ammunition in a war zone. As warfare becomes
increasingly technologically sophisticated, it seems almost quaint to adjudge
the question of one’s direct participation in it based on one’s proximity to a
possibly non-existent physical battlefield.
As the waging of war comes to increasingly rely on civilians (and actually, in
many cases, simply could not be conducted without the civilian contribution),
the distinction between supporting the war effort and making an essential
contribution to the war effort is becoming increasingly strained. One
determinant could be: does the civilian make such an essential contribution to
the war effort that without him or her, the attack could not be carried out? A
danger with such an approach is that it might implicate in direct participation
the civilians employed by the armed forces who themselves may not realise
that they are directly participating—at least in particular attacks. This is why
the mental element – the objective intention to participate – is so important to
establish.
As regards rescue operations, the US Air Force Commander’s Handbook
states that
‘rescue of military airmen downed on land is a combatant activity that is
not protected under international law. Civilians engaged in the rescue
and return of enemy aircrew members are therefore subject to attack.
This would include, for example, members of a civilian air auxiliary,
such as the U.S. Civil Air Patrol, who engage in military search and
rescue activity in wartime.’58
However, the Handbook notes that the care of the wounded on land and the
rescue of persons downed at sea or shipwrecked are protected activities
under international law.
It should be pointed out, however – and particularly so given the increased
resort to civilians to do formerly military work – that in reality, civilian crews
are used to rescue military personnel downed on land; indeed, Iraq provides
more than one example of this. Legally, these civilian subcontractors are
unlawfully directly participating in hostilities—and particularly so if they
have to conduct the rescue operation under fire—yet, the safety of army
personnel (and the accomplishment of the mission) may depend on such
direct participation. Clearly, the putting of civilian subcontractors in harm’s
way for the sake of force protection without clarifying their legal status and
the extent to which they can use force for the rescue and protection of their
military comrades is unacceptable.
58
U.S. Air Force Commander’s Handbook (1980) paras. 2-8.
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Another related gray area – in fact more than in law – concerns the defensive
use of force. While international humanitarian law permits some civilians to
carry arms, and in exceptional circumstances to use arms during situations of
armed conflicts, the situation regarding military subcontractors is oblique.
They are allowed to carry arms and use force in personal self-defence, and it
is clear that the latter should be interpreted narrowly. Use of force in defense
of combatants (i.e., force protection) arguably constitute direct participation.
According to the US Army Field Manual, contractor employees
‘cannot take an active part in hostilities but retain the inherent right to selfdefense. Because of their civilian background, they may posses neither the
training nor experience to actively participate in force protection
measures, and the rules governing warfare preclude them from doing so
except in self-defense’.59
Schmitt has argued – correctly, it is submitted – that ‘[g]ray areas should be
interpreted liberally, i.e., in favour of finding direct participation’,60 given that
an underlying purpose of the law is to enable distinction to be made between
combatants and civilians.
3.2.4 The temporal element
Article 51(3) of Additional Protocol I indicates that the protection lost by
civilians when they take a direct part in hostilities is temporary, although the
phraseology is somewhat circular and does not really help to elucidate just
how long that period is. It provides, as mentioned earlier, that civilians lose
their protected status ‘for such time as they take a direct part in hostilities’,
while not enlightening on what is encompassed by taking ‘a direct part in
hostilities’. The Commentaries to the First and Second Additional Protocols
suggest that direct participation by civilians in hostilities should be
interpreted narrowly.61 Many scholars consider it to have a temporal
limitation which ends once the unlawful attack has been carried out and the
assailant has returned home. It is widely considered that during the period of
either preparing for and executing the attack and returning home – and only
during this period – the civilian may be lawfully attacked using military force.
According to Kalshoven:
‘Although certainly lacking on this point, military logic suggests that the
period indicated by these words encompasses both the time during
F.M3-100.21, 3 January 2003.
Schmitt, loc. cit., n. 30, p. 505.
61 ‘During the course of the discussions on Additional Protocol I, several delegations
indicated that the expression “hostilities” used in this article included preparations for
combat and the return from combat. Similar problems arose in Article 44 (Combatants and
prisoners of war) with regard to the expression “military deployment preceding the launching
of an attack.’ Commentary, op. cit. n. 38.
59
60
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which the civilian is obviously approaching the chosen target with a
view to carrying out his hostile act (although one should be aware here
of the rule on cases of doubt in Article 50(1)) and the time he needs to
withdraw from the scene after the act.’62
The Commentary on Additional Protocol II notes, in relation to the temporal
aspect, that the civilian who is directly participating in hostilities may be
attacked ‘for as long as his participation last. Thereafter, as he no presents any
danger for the adversary, he may not be attacked.’63
The assumption here—as explicitly made in the Commentary—is that once
the attack has been carried out and the assailant has returned home, he no
longer poses a military threat which must be neutralized using military force.
Given the principle that the least force necessary to achieve one’s military or
law enforcement objectives ought to be employed, a person who has already
carried out an attack and who longer poses a military threat (at that moment),
should be neutralized using the least force possible. That means that an
individual who has earlier posed a military threat by virtue of his or her
direct participation should be arrested rather than attacked using military
force, where this is possible. In contrast, a combatant is at all times considered
to be a legitimate military objective, even while off duty or asleep in bed.
The above reasoning, while sound in principle, does not necessarily square
with the nature of modern conflict. Indeed, this temporal limitation vis-à-vis
civilian who take a direct part in hostilities seems increasingly artificial and
impractical, and could even at times be at odds with what might be presumed
to be the underlying military and law enforcement goals of reducing the
security threat presented by unlawful civilian participation in hostilities and
upholding the principles of distinction and protection.
The difficulty lies not so much with the civilians who carry out once off
attacks on military objectives but with civilians, including terrorists operating
in situations of armed conflict, who are committed to ongoing attacks against
military or civilian targets. It is difficult to argue that such a person no longer
poses a military threat just because he has walked through his front door after
an attack, where his intention to directly participate in future attacks has been
stated or can be inferred from all the surrounding circumstances (again, the
objective intention). A sleeping committed terrorist or rebel who is committed
to armed struggle against an opponent poses just as potentially lethal a
military threat as the sleeping combatant. The Israeli government has argued,
at times not without some justification, that the principle of distinction might
be better observed by a targeted military attack on a sleeping terrorist than by
attacking him while he is walking home through a busy street in the middle
62
63
See Kalshoven and Zegveld, op. cit. n. 46, p. 99.
Commentary, op. cit. n. 38, para. 4789.
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of the day. While this should not be interpreted as an endorsement of the
Israeli policy of targeted assassination64 – and it is recognised that in reality
drawing a line between legitimate attacks on unlawful combatants and
unlawful assassinations may be very difficult – it does seem that the generally
accepted view of the temporal limitation at least deserves re-examination. A
strict adherence to the temporal limitation (with the participation ending once
the civilian returns home) may not always be the most efficacious, or the one
best designed to maximize respect for the principles of distinction and
protection of truly innocent civilians. All circumstances should be looked at,
including the ability of the respondent to employ other means to neutralize
the threat, its control over the territory where the civilian assailant is to be
found, necessity (in the context of self-defense) and the proportionality of the
military response. It may not, for example, be possible to arrest a terrorist or
an unlawful combatant in cases where the state that is attacked does not
control the territory where the civilian is operating.
The generally accepted temporal limitation also requires states to react
quickly, which could lead to unfortunate results. It may not be possible to
gather the intelligence necessary to identify the assailant in time to attack him
while he is still on the job or returning home from it. A targeted attack after
the fact based on firm intelligence could lessen the possibility of mistaken
identity.
Undoubtedly, the subject is complex, politically incendiary and fraught with
difficulties which cannot be fully explored here. But if the purpose of
identifying the temporal duration of loss of immunity is the minimization or
neutralization of the military threat posed by an individual civilian while he
is directly participating in hostilities (by allowing him to be attacked during
these ‘windows of opportunity’), then what seems important in fact are the
(ongoing) objective intentions and military capabilities of the civilian, rather
than the fact of particular incidents of unlawful participation. Arguably, an
individual civilian whose commitment to the unlawful use of armed force is
demonstrable and ongoing should be targetable until such time as he or she
has clearly renounced such a commitment, and is no longer considered to
pose a military threat. The burden of proof could be put on the individual
civilian with respect to whom the objective intention to participate has been
demonstrated to show that he renounced that intention and is longer
committed to direct participation in attacks. This approach is also supported
by Schmitt, who writes: ‘Once an individual has opted into the hostilities, he
or she remains a valid military objective until unambiguously opting out. This
may occur through extended non-participation or an affirmative act of
withdrawal.’65
The Israeli Defence Forces, relying on a self-defense argument, would argue that they are
acting as a matter of necessity, given that there is, in their view, no other—or more effective—
way to neutralize the terrorist threat.
65 Schmitt, loc. cit. n. 30, p. 506.
64
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On the other hand, where there is no objective evidence that a civilian has directly
participated in hostilities or intends to participate in future attacks, the burden
of proving that such an individual can be attacked should lie with the power wishing
to do so. In any event, before any policy of reaction to unlawful civilian participation
is implemented, all the possible implications of removing or altering the temporal
limitation would need to be explored, to ensure that this would not be a case of the
medicine being worse than the disease.
3.2.5 In order to directly participate in hostilities, must there be a nexus with the
armed conflict?
In order to participate directly in hostilities, there should be some link
between the individual civilian participant and the armed conflict, i.e., the act
should not be undertaken for purely private reasons. During a situation of
armed conflict, a man who shoots his neighbour because of an argument
about money is committing a criminal act, but as the killing is unrelated to the
conflict he could not be said to be directly participating in hostilities or,
beyond that, committing a war crime.
This conclusion seems to be confirmed—if only by deduction—by the recent
jurisprudence of the ICTY and ICTR. In the Tadić case, an ICTY Trial Chamber
stated that: ‘For a crime to fall within the jurisdiction of the International
Tribunal, a sufficient nexus must be established between the alleged offence
and the armed conflict which gives rise to the applicability of international
humanitarian law.’66 The Chamber elaborated on the necessary link:
‘It would be sufficient to prove that the crime was committed in the
course of or as part of the hostilities in, or occupation of, an area
controlled by one of the parties. It is not, however, necessary to show
that armed conflict was occurring at the exact time and place of the
proscribed acts alleged to have occurred, as the Appeals Chamber has
indicated, nor is it necessary that the crime alleged takes place during
combat, that it be part of a policy or of a practice officially endorsed or
tolerated by one of the parties to the conflict, or that the act be in
furtherance of a policy associated with the conduct of war or in the
actual interest of a party to the conflict; the obligations of individuals
under international humanitarian law are independent and apply
without prejudice to any questions of the responsibility of States under
international law. The only question, to be determined in the
circumstances of each individual case, is whether the offences were
closely related to the armed conflict as a whole.’67
Prosecutor v. Dusko Tadic a/k/a “Dule”, Case No. IT-94-1-T, Opinion and Judgment, 7 May
1997, para. 207.
67 Ibid., para. 573.
66
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In Aleksovski, the Trial Chamber found that: ‘Not all unlawful acts occurring
during an armed conflict are subject to international humanitarian law. Only
those acts sufficiently connected with the waging of hostilities are subject to
the application of this law. … It is necessary to conclude that the act, which
could well be committed in the absence of a conflict, was perpetrated against
the victim(s) concerned because of the conflict at issue.’68 In the Musema case,
the ICTR was even more explicit on the need for a nexus between the
accused’s acts and the hostilities, for the purposes of finding a civilian
criminally responsible for a war crime: ‘…offences must be closely related to
the hostilities or committed in conjunction with the armed conflict to
constitute serious violations of Common Article 3 and Additional Protocol II.
In other words, there must be a nexus between the offences and the armed
conflict.’69 In Rutaganda, the ICTR Trial Chamber followed Musema.70 ‘[T]he
evidence adduced in support of the charges against the accused must satisfy
the Chamber that such a nexus exists. Thus, the burden rests on the
Prosecutor to prove beyond a reasonable doubt that, on the basis of the facts,
such a nexus exists between the crime committed and the armed conflict.’ 71
Obviously, being criminal courts, the ad hoc International Criminal Tribunals
have addressed the question of the relationship between an individual
civilian and the armed conflict for the purposes of determining criminal
liability of a civilian, and there has been no substantive discussion of the
question of direct participation in abstracto. It is not altogether clear whether
the same requirements apply merely for the purposes of determining whether
a civilian has unlawfully participated in hostilities, short of criminal liability,
although it is not unreasonable to surmise that a similar conclusion would be
reached in determining whether certain acts constitute direct participation
(short of criminal behaviour).
3.2.6 In order to directly participate, does the civilian have to be a member of or
have a link with a party to the conflict?
The question has arisen whether, in addition to the nexus requirement to the
conflict, there is a further requirement that the civilian is a member of a party
to the conflict or has some other type of link with a party to the conflict. This
issue has also received considerable attention in Tribunal case law, although
again for the purposes of finding criminal liability. A review of the relevant
jurisprudence leads to the conclusion that it is not necessary for there to be a
link between the acts committed and a party to the conflict, at least for the
purposes of finding criminal liability for acts committed.
The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June 1999, para. 45.
The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement and Sentence, 27
January 2000, para. 973. See also paras. 259-262.
70 The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-T,
Judgement and Sentence, 6 December 1999, para. 104.
71 Ibid., para. 105.
68
69
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Until the recent decision of the Appeals Chamber in Akayesu—which
appeared to settle the matter—there was some divergence in the
jurisprudence of ICTY and ICTR Trial Chambers on this question.
In the Kunarac case, the ICTY Trial Chamber touched briefly on the question
of the need for a link between an accused’s acts and a party to the conflict.
Setting out the list of requirements identified in Čelebići,72 it stated: ‘It would
appear to the Trial Chamber that common Article 3 may also require some
relationship to exist between a perpetrator and a party to the conflict.’ 73
However, a determination on this question was not necessary in this case, as
all of the accused fought on behalf of parties to the conflict.
In the decision of the Trial Chamber in Akayesu, the ICTR iterated that both
the Tokyo trials and other post-World War II trials ‘unequivocally support the
imposition of individual criminal liability for war crimes on civilians where
they have a link or connection with a Party to the conflict’.74 As to what type and
degree of connection or link is required, the Chamber stated that:
‘For Akayesu [technically, a civilian] to be held criminally responsible under
Article 4 of the Statute, it is incumbent on the Prosecutor to prove beyond a
reasonable doubt that Akayesu acted for either the Government or the RPF in
the execution of their respective conflict objectives. … This implies that
Akayesu would incur individual criminal responsibility for his acts if it were
proven that by virtue of his authority, he is either responsible for the outbreak
of, or is otherwise directly engaged in the conduct of hostilities. Hence, the
Prosecutor will have to demonstrate to the Chamber and prove that Akayesu
was either a member of the armed forces under the military command of
either of the belligerent parties, or that he was legitimately mandated and
expected, as a public official or agent or person otherwise holding public
authority or de facto representing the Government, to fulfil or support the war
efforts.’75
In Kayishema and Ruzindana, the Chamber also required a link between the
accused and the armed forces. It stated: ‘If individuals do not belong to the
armed forces, they could bear the criminal responsibility only when there is a
link between them and the armed forces.’76
Supra n. 18.
Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Case No. IT-96-23-T&IT96-23/1-T, Judgement, 22 February 2001, para. 407.
74 Akayesu Trial Judgement, supra n. 43, para. 633. Emphasis added.
75 Ibid., para. 640.
76 The Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement,
21 May 1999, para. 175.
72
73
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This requirement of a link between the accused’s acts and the armed forces
was reversed in the decision of the Appeals Chamber decision in Akayesu,
where the Chamber found that ‘there is no explicit provision in the [ICTR]
Statute that individual criminal responsibility is restricted to a particular class
of people’.77 ‘… it does not follow that the perpetrators of a violation of
Article 3 must of necessity have a specific link with one of the abovementioned Parties.’78 It found that the decision of the ICTY in Kunarac had no
support in either statute or case law. On the other hand, the Appeals Chamber
upheld the need for a link between the violations and an armed conflict.79
It is submitted that this reasoning is equally valid for a finding of direct
participation short of the commission of any additional criminal act, that is, a
link to a party to the conflict or membership of an armed group is not a
necessary element of direct participation, once a link to an armed conflict is
proven.
4.
THE CONSEQUENCES OF UNLAWFUL PARTICIPATION
The most serious consequence of taking a direct part in hostilities has already
been alluded to: the civilian loses his or her protected status and may be
attacked, for the duration of his or her participation, however long that is
determined to be.
Anyone who takes part in hostilities, be they a combatant or a civilian, if
captured, may be detained until the end of hostilities. Only the applicable
legal regime will differ, with combatants POW status under the Third Geneva
Convention of 1949 and Additional Protocol I, and civilians falling under the
Fourth Convention.
Since for combatants, participation in hostilities is not per se illegal, while they
may be detained upon capture they should not be punished merely for the
fact of their (lawful) participation. Conversely, civilians, not being permitted
to directly participate in combat, may be tried and punished for the fact of
their unlawful participation alone, as such activity constitutes a war crime
under the national law of most states.80 Of course, they may also be tried and
published for any additional war crimes they may have committed during the
time of their unlawful participation.
Anyone who has participated in hostilities enjoys the benefit of the doubt as
regards their status. Article 45(1) of Additional Protocol I provides:
The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para.
436.
78 Ibid., para. 437.
79 Ibid., para. 444.
80 See Kalshoven and Zegveld, op. cit. n. 46, p. 99.
77
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‘1. A person who takes part in hostilities and falls into the power of an
adverse Party shall be presumed to be a prisoner of war, and therefore
shall be protected by the Third Convention, if he claims the status of
prisoner of war, or if he appears to be entitled to such status, or if the
Party on which he depends claims such status on his behalf by
notification to the detaining Power or to the Protecting Power. Should
any doubt arise as to whether any such person is entitled to the status
of prisoner of war, he shall continue to have such status and, therefore,
to be protected by the Third Convention and this Protocol until such
time as his status has been determined by a competent tribunal.’
Once his status has actually been determined by a competent tribunal,
pursuant to Article 5 of the Third Convention, and he has been found not to
be a POW, he can be held as a regular detainee and, importantly, is not
devoid of rights. Nor does he cease to be a protected person under Article 4 of
the Fourth Convention. Still, parties have a certain discretion regarding the
treatment of detained civilians who have unlawfully participated in
hostilities. According to Article 5 of the Fourth Convention:
‘Where, in the territory of a Party to the conflict, the latter is satisfied that
an individual protected person is definitely suspected of or engaged in
activities hostile to the security of the State, such individual person shall
not be entitled to claim such rights and privileges under the present
Convention as would, if exercised in the favour of such individual
person, be prejudicial to the security of such State. . . . In each case, such
persons shall nevertheless be treated with humanity, and in case of trial,
shall not be deprived of the rights of fair and regular trial prescribed by
the present Convention. They shall also be granted the full rights and
privileges of a protected person under the present Convention at the
earliest date consistent with the security of the State or Occupying
Power, as the case may be.’
Where civilians who have directly participated in hostilities are not
considered to pose a security risk, the states could grant them all the rights
and privileges of protected persons who are detained. These rights and
protected are set out in detail in Section IV – Regulations for the treatment of
internees – of the Fourth Convention.
Article 45(3) of the Third Convention provides: ‘Any person who has taken
part in hostilities, who is not entitled to prisoner-of-war status and who does
not benefit from more favourable treatment in accordance with the Fourth
Convention shall have the right at all times to the protection of Article 75 of
this Protocol.’81 In occupied territory, any such person, unless he is held as a
Article 75 of Additional Protocol I sets out a series of fundamental guarantees or minimum
standards that must be observed in relation to all persons who have fallen into the hands of
the enemy and who do not benefit from more favourable treatment, including protection
81
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spy, shall also be entitled, notwithstanding Article 5 of the Fourth
Convention, to his rights of communication under that Convention.
As the law applicable during non-international armed conflicts does not
recognize the concept of combatancy, it does not explicitly recognize any
minimum standards of treatment for detainees who have directed
participated in hostilities.
The minimum standards recognized in common Article 3 of the Fourth
Geneva Convention apply specifically to ‘[p]ersons taking no active part in
the hostilities’. Similarly, the minimum standards of protection recognized for
civilians in Additional Protocol II (in Articles 4 and 13) are specifically
applicable only to persons ‘who do not take a direct part or who have ceased
to take part in hostilities’ (Article 4). Under the law of most states, unlawful
combatants will be treated as common criminals, or worse, as treasonous – a
capital offense in some countries.
This does not mean, of course, that these persons benefit from no minimum
standards of treatment in detention. Like any detainees, they would benefit
from the non-derogable universal and regional human rights norms that
continue to exist even during armed conflicts.
5.
CONCLUSIONS
The foregoing discussion has sought to identify some of the legal issues
arising from the troubling increase in civilian participation in hostilities. The
most obvious first conclusion is that more research into this fairly opaque area
of the law is urgently needed. Such efforts are now being undertaken by
various bodies and individuals, but more is surely needed. Clearly, the
investigation and the discussions cannot be purely academic, given that the
phenomenon of unlawful civilian participation in hostilities has serious
operational consequences. The close involvement of the military in these
efforts is to be welcomed and further encouraged.
From the cursory examination conducted here, it seems that amongst the
most crucial questions to resolve are the mental element (what is required?),
the temporal aspect, the burden of proof, and the military and law
enforcement purposes sought to be achieved or advanced through
clarification of the notion of direct participation.
Regarding the nexus to an armed group, the ICTY and ICTR have indicated
that membership of an armed group is not necessary in order to find a civilian
criminally liable for a war crime but even if a link to a party is not an absolute
against violations to their physical integrity and minimum standards of due process in case of
trial.
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requirement for a finding of direct participation in hostilities, it could be one
element indicating the objective intention to participate unlawfully.
While efforts must be made to pinpoint the modalities of civilian participation
in hostilities, so that the law can keep pace with the realities on the ground,
the ultimate aim must surely be not to produce an exhaustive list of the
varying modes of civilian participation in hostilities (an impossible and futile
exercise) but to try and identify criteria or common elements of participation
which can be applied across the board, and in both international and noninternational armed conflicts. These elements will have both physical (actus
reus) and mental (mens rea) aspects. Whatever result is ultimately achieved, be
it an elements-based or a definitional approach—must be able to take account
not only of those forms of civilian participation currently manifest but those
which are likely to present themselves in the future, including in the types of
conflicts that are not yet recognized by international humanitarian law but
which may eventually come to fall under its umbrella.
Underpinning and propelling forward all these efforts must be a concern with
supporting and strengthening the fundamental goals of international
humanitarian law, in particular, its core customary principles of distinction
and protection. While it is undoubtedly true that unlawful civilian
participation in hostilities weakens the principles of distinction and
protection—and often deliberately so—the response of states to these
challenges must not be to weaken these bulwarks against anarchy further still.
If states do not show leadership in taking the legal and moral high ground in
approaching the challenge of unlawful civilian participation in hostilities, the
law will be rendered an empty shell, and increased suffering of innocents will
be the inevitable result.
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