direct participation of civilians in hostilities

In such situations, the principles of military necessity and of humanity play an important role in determining the kind and degree of permissible force against legitimate military targets. Direct Participation in Hostilities. Provided the following activities do not constitute direct participation in hostilities, they may be undertaken by PMCs without losing their civilian protection: If persons who are authorized to accompany the armed forces without actually being members thereofsuch as supply contractorsfall into the power of the enemy during an international armed conflict, they are entitled to the status of prisoners of war in accordance with the third Geneva Convention of 1949 Article 4(A)(4). 1. the harm and the act, and a belligerent nexus.261 The first element, the. There were divergent views within the Group of Experts about the status of persons who accompany the armed forces but participate directly in hostilities. The ICRC helps those affected by armed conflict and promotes compliance with international humanitarian law. effort, as many States often require such participation from the general Membership in irregular armed forces, such as militias, volunteer corps, or resistance movements belonging to a party to the conflict, generally is not regulated by domestic law and can only be reliably determined on the basis of functional criteria, such as those applying to organized armed groups in non-international armed conflict. In practice, civilian participation in hostilities occurs in various forms and degrees of intensity and in a wide variety of geographical, cultural, political, and military contexts. d) Causal, temporal, and geographic proximity. The principle of DPH reflects the idea that an individual may only be In practice, civilian direct participation in hostilities is likely to entail significant confusion and uncertainty in the implementation of the principle of distinction. They can only illustrate the principles based on which the relevant distinctions ought to be made, but cannot replace a careful assessment of the concrete circumstances prevailing at the relevant time and place. Indeed, the restriction of loss of protection to the duration of specific hostile acts was designed to respond to spontaneous, sporadic or unorganized hostile acts by civilians and cannot be applied to organized armed groups. Civilians directly participating in hostilities lose their protection from attack for such time as they do so. In practice, confusing the distinct regimes by which IHL governs the loss of protection for civilians and for members of State armed forces or organized armed groups would provoke insurmountable evidentiary problems. Although these treaties do not expressly define armed forces, they require that members of militias and volunteer corps other than the regular armed forces recognized as such in domestic law fulfil four requirements: (a) responsible command; (b) fixed distinctive sign recognizable at a distance; (c) carrying arms openly; and (d) operating in accordance with the laws and customs of war. Editorial: Direct participation in hostilities. International humanitarian law established a framework through which civilians are protected from direct attack 'unless and for such time as they take a direct part in hostilities'. These laws provided restraints on how war fighters may use military force when it might . for membership in the organized armed group.280 DPH, on the other 278. Will take your questions in just a moment, but first, last week's African Union announcement of the signing of a cessation of hostilities between the Government of Ethiopia and the Tigrayan People's Liberation Front, or TPLF, represents, as we've said, a [] The present text seeks to facilitate these distinctions by providing guidance on the interpretation of international humanitarian law relating to the notion of direct participation in hostilities. This is so even if their actions have that effect. While civilian status ordinarily offers legal protection from direct attack, civilians who take direct part in hostilities lose that protection. (Intl Crim. Synopsis. who participate in hostilities do not lose their civilian status, only its for the Former Yugoslavia Jan. 31, 2005), http://www.icty.org/x/cases/. . Acts that neither cause harm of a military nature nor inflict death, injury, or destruction on protected persons or objects cannot be equated with the use of means or methods of warfare or, respectively, of injuring the enemy, as would be required for a qualification as hostilities. Yet it may also be identified on the basis of conclusive behaviour, for example where a person has repeatedly directly participated in hostilities in support of an organized armed group in circumstances indicating that such conduct constitutes a continuous function rather than a spontaneous, sporadic, or temporary role assumed for the duration of a particular operation. Gasser, supra note 232, at 238; Jensen, supra note 154, at 91 (Civilians are The phrase against the adversary does not specify the target, but the belligerent nexus of an attack, so that even acts of violence directed specifically against civilians or civilian objects may amount to direct participation in hostilities. Civilian direct participation in hostilities-Overview - Read online for free. while actually in the process of carrying out a terrorist act.). greater than mere thoughtless violence.266. suspends their civilian protections.247 It can include actions taken against However, the precise duration of the timeframe involved is a matter of some controversy (particularly in revolving door situations). Article 51.3 evidences a second context in which direct participation is rele-vant: Civilians shall enjoy the protection afforded by this section [entitled Protec-tion of the Civilian Population], unless and for such time as they take a direct part in hostilities." Thus, civilians lose their immunity from attack while they are tak-ing a . While this requirement is made textually explicit only for irregular militias and volunteer corps, including organized resistance movements, it is implied wherever the treaties refer to the armed forces of a party to the conflict. Civilians do not belong to a specific category. they can remain civilians most of the time and only endanger their protection as civilians PubMedGoogle Scholar. The presumption of civilian protection applies, a fortiori, in case of doubt as to whether a person has become a member of an organized armed group belonging to a party to the conflict. See SOLIS,supra note 14, at 202; ICRCCOMMENTARY, supra note 81, at 618. The Group of Experts agreed that civilians are subject to attack when they take a direct and continuous part in armed conflict, and they cannot invoke protection from attack during temporary lulls in this participation.Footnote 4 Accordingly, the timeframe for the loss of protection due to DPH would be analogous to that of their military counterparts, as the assigned function of operating RPAs or UMSs would be considered sufficient evidence of a continuous/ongoing pattern of DPH subjecting the civilian to deliberate attack. . Examples of general preparation not entailing loss of protection against direct attack would commonly include purchase, production, smuggling and hiding of weapons; general recruitment and training of personnel; and financial, administrative or political support to armed actors. Formally, therefore, they no longer benefit from the protection provided to civilians unless and for such time as they take a direct part in hostilities. Post was not sent - check your email addresses! 262. from military activities enjoyed by the civilian population.243 But, Article. As far as the leve en masse is concerned, all relevant instruments are based on the same definition, which refers to the inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. In view of the severe consequences of DPH the decision on whether an activity qualifies as DPH should be based on reasonably reliable information. civilians is limited to each single act: the earliest point of direct participation would be DPH broadly, and noted that civilians lose immunity when they prepare 1467 Through participation, the civilians lose, however, their IHL-based protection from . Dinstein, Y., Dahl, A.W. As noted, the concept of direct participation in hostilities is restricted to specific acts that are so closely related to the hostilities conducted between parties to an armed conflict that they constitute an integral part of those hostilities. Furthermore, as the notion of taking a direct part in hostilities is used synonymously in the Additional Protocols I and II, it should be interpreted in the same manner in international and non-international armed conflict. semi-military status, a soldier by night and peaceful citizen by day, also disappears.). In order to avoid the erroneous or arbitrary targeting of civilians entitled to protection against direct attack, it is therefore of particular importance that all feasible . This relationship may be officially declared, but may also be expressed through tacit agreement or conclusive behaviour that makes clear for which party the group is fighting. Accordingly, DPH itself cannot be properly characterized as a breach of LOAC or as a war crime. The aim cannot be to replace the judgment of the military commander by inflexible or unrealistic standards; rather it is to avoid error, arbitrariness, and abuse by providing guiding principles for the choice of means and methods of warfare based on his or her assessment of the situation. The consensus view of the Group of Experts was that LOAC does not prohibit DPH by civilians, but only exposes them to certain consequences as a result of DPH. In practice, such considerations are likely to become particularly relevant where a party to the conflict exercises effective territorial control, most notably in occupied territories and non-international armed conflicts. In the same vein, humanitarian law mandates that civilians must be humanely treated if and when they find themselves in the hands of the enemy. The Concept of Civilian. 248. injury, or destruction on persons or objects protected against direct attack it does not follow that any such person must necessarily be excluded from the category of armed forces and regarded as a civilian for the purposes of the conduct of hostilities. QUESTION: Hello. Lastly, although this Interpretive Guidance concerns the analysis and interpretation of IHL only, its conclusions remain without prejudice to additional restrictions on the use of force, which may arise under other applicable frameworks of international law such as, most notably, international human rights law or the law governing the use of interstate force (jus ad bellum). This illustrates that the notion of direct participation in hostilities does not refer to a persons status, function, or affiliation, but to his or her engagement in specific hostile acts. For example, imposing a regime of economic sanctions on a party to an armed conflict, depriving it of financial assets, or providing its adversary with supplies and services (such as electricity, fuel, construction material, finances and financial services) would have a potentially important, but still indirect, impact on the military capacity or operations of that party. Moreover, for the requirement of direct causation to be met, it is neither necessary nor sufficient that the act be indispensable to the causation of harm. Inter-civilian violence: Similarly, in order to become part of the conduct of hostilities, use of force by civilians against other civilians, even if widespread, must be specifically designed to support a party to an armed conflict in its military confrontation with another. membership in a terrorist organization, without more, is not sufficient to render one the Direct Participation- direct participation in hostilities consist of specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed . Groups engaging in organized armed violence against a party to an international armed conflict without belonging to another party to the same conflict cannot be regarded as members of the armed forces of a party to that conflict, whether under Additional Protocol I, the Hague Regulations, or the Geneva Conventions. Driving an ammunition truck: The delivery by a civilian truck driver of ammunition to an active firing position at the front line would almost certainly have to be regarded as an integral part of ongoing combat operations and, therefore, as direct participation in hostilities. For example, the building of fences or road blocks, the interruption of electricity, water, or food supplies, the appropriation of cars and fuel, the manipulation of computer networks, and the arrest or deportation of persons may have a serious impact on public security, health, and commerce, and may even be prohibited under IHL. Kretzmer, supra note 53, at 192; see also SOLIS,supra note 14, at 544 (Mere Concept of Direct Participation in Hostilities III. . This overarching norm finds expression in many provisions of humanitarian law, including those prohibiting any form of violence to life, as well as torture or cruel, inhuman or degrading treatment. Article 3 GC I-IV thus implies a concept of civilian comprising those individuals who do not bear arms on behalf of a party to the conflict. However, in the absence of combatant privilege, they are not exempted from prosecution under national criminal law for acts committed during their direct participation or membership. Nevertheless, the importance of the circumstances surrounding each case should not divert attention from the fact that direct participation in hostilities remains a legal concept of limited elasticity that must be interpreted in a theoretically sound and coherent manner reflecting the fundamental principles of IHL. generally exclude conduct that is clearly indirect, including general support for the war Under IHL, the concept of direct participation in hostilities refers to conduct which, if carried out by civilians, suspends their protection against the dangers arising from military operations. Abresch, supra note 22, at 757; AP I, supra note 46, art. 264. Combat Function, DPH appears to have a lower threshold than CCF; an individual can Conversely, transporting bombs from a factory to an airfield storage place and then to an airplane for shipment to another storehouse in the conflict zone for unspecified use in the future would constitute a general preparatory measure qualifying as mere indirect participation. Targeted killings of civilians who do not participate immediately are prohibited by international criminal law. The difficulty for such forces is to distinguish reliably between members of organized armed groups belonging to an opposing party to the conflict, civilians directly participating in hostilities on a spontaneous, sporadic, or unorganized basis, and civilians who may or may not be providing support to the adversary, but who do not, at the time, directly participate in hostilities. Rather, it distinguishes members of the organized fighting forces of a non-State party from civilians who directly participate in hostilities on a merely spontaneous, sporadic, or unorganized basis, or who assume exclusively political, administrative or other non-combat functions. Civilians, including those formally authorized to accompany the armed forces and entitled to prisoner-of-war status upon capture, were never meant to directly participate in hostilities on behalf of a party to the conflict. Therefore, even under the terms of the Hague Regulations and the Geneva Conventions, all armed actors showing a sufficient degree of military organization and belonging to a party to the conflict must be regarded as part of the armed forces of that party. The ICRC initiated reflection on the notion of direct participation in hostilities based both on the need to enhance the protection of civilians in practice for humanitarian reasons and on the international mandate it has been given to work for the better understanding and faithful application of international humanitarian law. 256. In this context, military harm should be interpreted as encompassing not only the infliction of death, injury, or destruction on military personnel and objects, but essentially any consequence adversely affecting the military operations or military capacity of a party to the conflict. Private contractors and employees of a party to an armed conflict who are civilians (see above I and II) are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. US DoD Law of War Manual, Section 5.9.1.2. This principle IT-01-48-T, Trial Judgment, 34, n.78 All other persons who directly participate in hostilities on a merely spontaneous, sporadic or unorganized basis must be regarded as civilians. They . In practice, this determination will have to take into account, inter alia, the intelligence available to the decision maker, the urgency of the situation, and the harm likely to result to the operating forces or to persons and objects protected against direct attack from an erroneous decision. Applied in conjunction, the three requirements of threshold of harm, direct causation and belligerent nexus permit a reliable distinction between activities amounting to direct participation in hostilities and activities which, although occurring in the context of an armed conflict, are not part of the conduct of hostilities and, therefore, do not entail loss of protection against direct attack. Most notably, Article 3 GC I-IV provides that each Party to the conflict must afford protection to persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat. protected from attack for such time as they take a direct part in hostilities.). in hostilities. Where civilians voluntarily and deliberately position themselves to create a physical obstacle to military operations of a party to the conflict, they could directly cause the threshold of harm required for a qualification as direct participation in hostilities. The Interpretive Guidance provides a legal reading of the notion of direct participation in hostilities with a view to strengthening the implementation of the principle of distinction. However, as already discussed, both the terms civilians and direct participation in hostilities are not clear and unless they are clearly defined, this problem cannot be solved especially during NIAC. 2. For the ICRCs position in this respect see, e.g., above N 15. These relate to the state of mind of the person concerned, whereas belligerent nexus relates to the objective purpose of the act. MOSHE SCHWARTZ, CONG. Today, the principle of military necessity is generally recognized to permit only that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources. It would provide members of such groups with a significant operational advantage over members of State armed forces, who can be attacked on a continuous basis. effort.). The geographic and organizational closeness of such personnel to the armed forces and the hostilities require that this determination be made with particular care. 244. Examples of this have been observed in recent years during, It is concluded that because of intention of voluntary human shield, they can be considered as direct participation and involuntary human shields are not direct participants in, A civilian government employee or private contractor defending military personnel or military objectives from enemy attack direcdy participates in hostilities.. His or, It should already be obvious that proposals to completely ban such use are not, in the opinion of this author, the answer. as directly attacking or engaging in acts of war against the enemy, which Under customary and treaty IHL, civilians lose protection against direct attack either by directly participating in hostilities or by ceasing to be civilians altogether, namely by becoming members of State armed forces or organized armed groups belonging to a party to an armed conflict. The qualification of an act as direct participation does not require the materialization of harm reaching the threshold but merely the objective likelihood that the act will result in such harm. otherwise protected from direct attack.262 The direct causation element On the contrary, it would contradict the logic of the principle of distinction to place irregular armed forces under the more protective legal regime afforded to the civilian population merely because they fail to distinguish themselves from that population, to carry their arms openly, or to conduct their operations in accordance with the laws and customs of war. The standard of direct causation must therefore be interpreted to include conduct that causes harm only in conjunction with other acts. For instance the ICRC Guidance states, you have direct participation in hostility when you have 3 requirements, 1. Indeed, although the presence of voluntary human shields may eventually lead to the cancellation or suspension of an operation by the attacker, the causal relation between their conduct and the resulting harm remains indirect. Such reservists are civilians until and for such time as they are called back to active duty. In the long run, the confidence of the disadvantaged party in the capability of IHL to regulate the conduct of hostilities satisfactorily would be undermined, with serious consequences ranging from excessively liberal interpretations of IHL to outright disrespect for the protections it affords. Offers a thorough examination of direct participation in hostilities by civilians and how it has been defined in treaties and state practice, case law, and soft law. Springer, Cham. First, a word of warning. Similarly, if carried out with a view to the execution of a specific hostile act, all of the following would almost certainly constitute preparatory measures amounting to direct participation in hostilities: equipment, instruction, and transport of personnel; gathering of intelligence; and preparation, transport, and positioning of weapons and equipment. a) Adversely affecting the military operations or military capacity of a party to the conflict. Prohibitions and restrictions laid down in specific provisions of IHL. 282. 267. COMMN ON HUMAN RIGHTS, OEA/Ser.L/V/II.116, REPORT ON, TERRORISM AND HUMAN RIGHTS 6263 (2002), available at http://cidh.oas.org/Terrorism/. I just wanted to add a few thoughts after Dapo's excellent post on the Gaza conflict, of which there seems to be no end in sight. As far as the temporal scope of the loss of protection is concerned, a clear distinction must be made between civilians and organized armed actors. Where the concepts of civilian and armed forces are defined for the purpose of the conduct of hostilities, the relevant standards must be derived from IHL. This scenario could occur, most notably, when civilians are totally unaware of the role they are playing in the conduct of hostilities (e.g. The Interpretive Guidance is widely informed by the discussions held during these expert meetings but does not necessarily reflect a unanimous view or majority opinion of the experts. ICRCCOMMENTARY, supra note 81, 1677, at 515. participation in an international or non-international armed conflict. 2022 Springer Nature Switzerland AG. For the purposes of the principle of distinction, the definition of civilian refers to those persons who enjoy immunity from direct attack unless and for such time as they take a direct part in hostilities. Organized armed groups belonging to a non-State party to an armed conflict include both dissident armed forces and other organized armed groups. Thus, for such time as private contractors assume a continuous combat function for an organized armed group belonging to a non-State party, they become members of that group. If and for as long as civilians carry out such acts, they are . It should be reiterated that these examples can only illustrate the principles based on which the necessary distinctions ought to be made and cannot replace a careful assessment of the totality of the circumstances prevailing in the concrete context and at the time and place of action. In other words, the revolving door of protection starts to operate based on membership. INTER-AM. Individuals who continuously accompany or support an organized armed group, but whose function does not involve direct participation in hostilities, are not members of that group within the meaning of IHL. requires a direct link between the act and the harm likely to be caused.263 More precisely, where a specific act does not on its own directly cause the required threshold of harm, the requirement of direct causation would still be fulfilled where the act constitutes an integral part of a concrete and coordinated tactical operation that directly causes such harm. Once an attack has commenced, those responsible must cancel or suspend the attack if it becomes apparent that the target is not a legitimate military target. Neither are they combatants. This principle is expressed in AP I, Article 51, which sets out the customary protections from military activities enjoyed by the civilian population. Generally speaking, beyond the actual conduct of hostilities, the general war effort could be said to include all activities objectively contributing to the military defeat of the adversary (e.g. ICRCCOMMENTARY, supra note 81, at 619, 1944. The 2009 study is not settled law and has been criticised. Requirements, 1 hors de combat be extremely difficult to determine the civilian and, civilians who do not participate immediately are prohibited by international criminal. 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