Modalities of Suspension of Protection Determines the circle of persons who may not be directly attacked "unless and for such time as they take a direct part in hostilities" Determines the individual conduct which entails loss of civilian protection against direct attack While Additional Protocol II has a significantly narrower scope of application and uses terms different from those in Article 3 GC I-IV, the generic categorization of persons is the same in both instruments. Loss of an identity card does not deprive the person concerned of POW status. 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. note 179, at 11 (Throughout history, the civilian population has always contributed to In treaty IHL, individual conduct that constitutes part of the hostilities is described as direct participation in hostilities, regardless of whether the individual is a civilian or a member of the armed forces. Persons who are authorized to accompany the armed forces without actually being members thereof, but participate directly in hostilities, are subject to attack by the enemy. Eng/exe.htm ([O]nce a person qualifies as a combatant, whether regular or irregular, In essence, the concept of hostilities could be described as the sum total of all hostile acts carried out by individuals directly participating in hostilities. 243 But, Article In classic large-scale confrontations between well-equipped and organized armed forces or groups, the principles of military necessity and of humanity are unlikely to restrict the use of force against legitimate military targets beyond what is already required by specific provisions of IHL. . The present text interprets the notion of direct participation in hostilities for the purposes of the conduct of hostilities only. Prosecutor v. Halilovi, Case No. A clear distinction between armed forces and civilians is a key element of IHL. 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 . According to treaty and customary IHL applicable in international and non-international armed conflict, civilians enjoy protection against direct attack unless and for such time as they take a direct part in hostilities. They also include the restriction or prohibition of selected weapons and the prohibition of means and methods of warfare of a nature to cause superfluous injury or unnecessary suffering (maux superflus). However, this general protection extends only to civilian non-combatants. Thus, while temporal or geographic proximity to the resulting harm may indicate that a specific act amounts to direct participation in hostilities, these factors would not be sufficient in the absence of direct causation. It also provides that civilians may not be the object of deliberate attack. For the regular armed forces of States, individual membership is generally regulated by domestic law and expressed through formal integration into permanent units distinguishable by uniforms, insignia, and equipment. For example, beyond the killing and wounding of military personnel and the causation of physical or functional damage to military objects, the military operations or military capacity of a party to the conflict can be adversely affected by sabotage and other armed or unarmed activities restricting or disturbing deployments, logistics and communication. result either from that act, or from a coordinated military operation of Book review: Identifying the Enemy: Civilian Participation in Armed Conflict, Converting treaties into tactics on military operations, Interview with Brigadier General Richard C. Gross, The regulation of non-international armed conflicts, Strengthening international humanitarian law project. 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 helps those affected by armed conflict and promotes compliance with international humanitarian law. It poses some useful questions to determine whether a civilian could be said to be directly participating in hostilities: threshold of harm; direct causation; belligerent nexus. from military activities enjoyed by the civilian population.243 But, Article. However, even acts meeting the requirements of direct causation and reaching the required threshold of harm can only amount to direct participation in hostilities if they additionally satisfy the third requirement, that of belligerent nexus. Organized armed groups operating within the broader context of an international armed conflict without belonging to a party to that conflict could still be regarded as parties to a separate non-international armed conflict provided that the violence reaches the required threshold. As previously noted, where the required harm has not yet materialized, the element of direct causation must be determined by reference to the harm that can reasonably be expected to directly result from a concrete act or operation (likely harm). [sic] a condition that he bear arms (openly or concealed). Those conducting hostilities already face the difficult task of distinguishing between civilians who are and civilians who are not engaged in a specific hostile act (direct participation in hostilities), and distinguishing both of these from members of organized armed groups (continuous combat function) and State armed forces. It should also be noted that the purpose of the distinction between civilians and members of the armed forces may not be identical under domestic and international law. and supply of weapons, equipment, food, and shelter, or through economic, administrative, A third, particularly worrying trend has been the failure of persons directly participating in hostilities, whether civilians or members of armed forces or groups, to adequately distinguish themselves from the civilian population. 872 Direct participation in hostilities. The notion of direct participation in hostilities essentially comprises two elements, namely that of hostilities and that of direct participation therein. Nonetheless, DPH may result in a violation of applicable domestic criminal laws, either as a result of the DPH itself (e.g., in U.S. law the crime of providing material support to terrorism), or as a result of its consequences (e.g., an attempted or completed violation of domestic criminal prohibitions against murder, arson, aggravated assault, etc.). participating in hostilities. The concept of belonging to requires at least a de facto relationship between an organized armed group and a party to the conflict. Thus, apart from providing guidance on when and for how long a person is considered to have lost protection from direct attack, it does not address the consequences of direct participation in hostilities once he or she finds him or herself in the adversarys hands. Whether private contractors and employees of a party to the conflict qualify as civilians within the meaning of IHL and whether they directly participate in hostilities depends on the same criteria as are applicable to any other civilian. Theoretically, private military companies could even become independent non-State parties to a non-international armed conflict. 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 . threshold of harm, requires that the act be directed at the destruction of hostilities. 252. The idea of direct participation in hostilities (DPH) and loss of civilian immunity seems relatively straightforward: you take an active part in the armed conflict, you lose your civilian immunity and are liable to be attacked in response to your hostile acts. ICRC guidance can be used as starting point, but you also need to use commentaries on ICRC Guidance, books and Articles written on the notions of direct participation in hostilities. The return from the execution of a specific hostile act ends once the individual in question has physically separated from the operation, for example by laying down, storing or hiding the weapons or other equipment used and resuming activities distinct from that operation. While the concept of hostilities refers to the (collective) resort by the parties to the conflict to means and methods of injuring the enemy, participation in hostilities refers to the (individual) involvement of a person in these hostilities. 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. Israel Case, supra note 19, 33. In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances. This scenario may become particularly relevant in ground operations, such as in urban environments, where civilians may attempt to give physical cover to fighting personnel supported by them or to inhibit the movement of opposing infantry troops. Thus, the refusal of a civilian to collaborate with a party to the conflict as an informant, scout or lookout would not reach the required threshold of harm regardless of the motivations underlying the refusal. Id. the harm and the act, and a belligerent nexus.261 The first element, the. A different conclusion must be reached for contractors and employees who, to all intents and purposes, have been incorporated into the armed forces of a party to the conflict, whether through a formal procedure under national law or de facto by being given a continuous combat function. Mutual exclusiveness of the concepts of civilian, armed forces and leve en masse. Note that the intent requirement here demands a state of mind that is While international humanitarian law relating to the notion of direct participation in hostilities was examined over several years with a group of eminent legal experts, to whom the ICRC owes a huge debt of gratitude, the positions enunciated are the ICRCs alone. actual harm to the personnel and equipment of the enemy armed forces.); Prosecutor v. Musema, Case No. The same applies where armed units of police, border guard, or similar uniformed forces are incorporated into State armed forces. for the Former Yugoslavia Nov. 16, 2005) (The Trial Chamber notes In other words, under all instruments governing international armed conflict, the concept of civilian is negatively delimited by the definitions of armed forces and of leve en masse, both of which shall in the following be more closely examined. which by their nature or purpose are likely to cause actual harm to the personnel and when they are involuntary human shields physically coerced into providing cover in close combat). Conversely, in operations involving more powerful weaponry, such as artillery or air attacks, the presence of voluntary human shields often has no adverse impact on the capacity of the attacker to identify and destroy the shielded military objective. For example, the exchange of fire between police and hostage takers during an ordinary bank robbery, violent crimes committed for reasons unrelated to the conflict, and the stealing of military equipment for private use, may cause the required threshold of harm, but are not specifically designed to support a party to the conflict by harming another. take a direct part in the hostilities means acts of war which by their nature or purpose Civilians in such extreme circumstances cannot be regarded as performing an action (i.e. 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. unlawfully engage in armed conflict have the status of a civilian directly Direct Participation in Hostilities (DPH) Direct participation of civilians in armed conflict: Blurring of distinction between combatants and civilians - urban warfare; Problems with targeting - the continuous combat function - modalities of loss of protection; Potential increase of harm to civilians and civilian objects; Problems with security detention. Another view, also reflected in the U.S DoD Law of War Manual, is that they are entitled to POW status, and generally cannot be held criminally liable for authorized support activities, including such support activities constituting direct participation in hostilities. A second situation has become prevalent and remains of great concern today: armed conflicts not of an international character waged between government forces and organized non-State armed groups, or between such groups, for political, economic, or other reasons. [1] Tadi Trial Judgement, para. QUESTION: Hello. the concrete preparatory measures for that specific act, . 249. Such conduct may constitute a domestic or international crime and permit the lawful use of armed force against the perpetrators as a matter of law enforcement or defence of self or others. Conversely, the preparation of a general campaign of unspecified operations would not qualify as direct participation in hostilities. However, because civilians including those entitled to prisoner of war status under Article 4 [4] and [5] GC III are not entitled to the combatant privilege, they do not enjoy immunity from domestic prosecution for lawful acts of war, that is, for having directly participated in hostilities while respecting IHL. As the wording and logic of Article 3 GC I-IV and Additional Protocol II (AP II) reveals, civilians, armed forces, and organized armed groups of the parties to the conflict are mutually exclusive categories also in non-international armed conflict. 5.8.1.1 "Active" V. ersus "Direct". hostilities without using weapons at all.). Where such personnel directly participate in hostilities without the express or tacit authorization of the State party to the conflict, they remain civilians and lose their protection against direct attack for such time as their direct participation lasts. Only State agreements (treaties) or State practice followed out of a sense of legal obligation on a certain issue (custom) can produce binding law. Second, while reflecting the ICRCs views, the Interpretive Guidance is not and cannot be a text of a legally binding nature. 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. Id. 1467 Through participation, the civilians lose, however, their IHL-based protection from . Under IHL, the notion of "direct participation in hostilities" describes individual conduct that, if carried out by civilians, suspends their protection against the dangers arising from military operations. As Russia started its invasion of Ukraine final week, a lot of the main focus was, rightly, on Putin's actions below worldwide legislation, and the response political propaganda, financial transactions, production of agricultural or non-military industrial goods). The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. 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. At the same time, the absence of an unfettered right to kill does not necessarily imply a legal obligation to capture rather than kill regardless of the circumstances. It is the purpose of the present chapter to identify the criteria that determine whether and, if so, for how long a particular conduct amounts to direct participation in hostilities. The primary aim of IHL is to protect the victims of armed conflict and to regulate the conduct of hostilities based on a balance between military necessity and humanity. Civilians in Non-International Armed Conflicts For purposes of principle of distinction in NIAC, all persons who are not members of State armed forcesor organized armed groups of a party to the conflict are civilians and entitled to protection against attack unless and for such time as they take a direct part in hostilities. Click to share on Twitter (Opens in new window), Click to share on Facebook (Opens in new window), Click to share on LinkedIn (Opens in new window), Click to share on Reddit (Opens in new window), Click to share on Telegram (Opens in new window), Click to share on WhatsApp (Opens in new window), Click to email this to a friend (Opens in new window). semi-military status, a soldier by night and peaceful citizen by day, also disappears.). d) Practical determination of belligerent nexus. In practice, civilian direct participation in hostilities is likely to entail significant confusion and uncertainty in the implementation of the principle of distinction. The notion of direct participation in hostilities has evolved from the phrase taking no active part in the hostilities used in Article 3 GC I-IV. It may also include measures preparatory to the execution of such an act, as well as the deployment to and return from the location of its execution, where they constitute an integral part of such a specific act or operation. pass through the revolving door, while CCF dictates that at some point, At its essence, the direct participation standard is a refinement of the principle of distinction and more immediately of civilian status under the law of war. 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 . otherwise protected from direct attack.262 The direct causation element Therefore, the article analyses the notion of direct participation with a view to 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. However, again the term civilians has not been properly defined especially with regard to non-international armed conflict. Loss of protection against direct attack within the meaning of IHL, however, is not a sanction for criminal behaviour but a consequence of military necessity in the conduct of hostilities. The IHL and human rights law relationship in this situation is unclear, largely due to lack of clarity within IHL itself. They are of a specifically military nature and so closely linked to the subsequent execution of a specific hostile act that they already constitute an integral part of that act. In essence, preparatory measures amounting to direct participation in hostilities correspond to what treaty IHL describes as military operation[s] preparatory to an attack. protected from attack for such time as they take a direct part in hostilities.). confirms the customary rule that innocent civilians must be kept outside hostilities as far, 51(3)244 introduces an exception to civilian immunity: direct participation in Prior studies have identified at least four developments that contribute to civilians' growing participation in hostilities: (1) the privatization of warfare, [3] (2) a long-term shift toward non-international versus international armed conflicts, (3) the greater use of civilian proxies by States, and (4) the expanding role civilians play in . Direct Participation in Hostilities versus Continuous effect of the act.); MELZER, supra note 179, at 46. 3. 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. Recall It prevents attacks on civilians who do not, at the time, represent a military threat. 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. in hostilities. The actual expression 'direct part in hostilities' was first used in the 1977 Additional Protocols to the 1949 Geneva Conventions, Footnote 6 and the ICRC Commentaries took the approach that hostile acts forming part of DPH should be understood to be acts intended to cause "actual harm to the personnel and equipment of the armed forces", Footnote 7 which requires a nexus or sufficient . The Concept of Civilian. For instance, denying the adversary the military use of certain objects, equipment and territory, guarding captured military personnel of the adversary to prevent them being forcibly liberated (as opposed to exercising authority over them), and clearing mines placed by the adversary would reach the required threshold of harm. 278. 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. 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. Participants in a leve en masse are the only armed actors who are excluded from the civilian population although, by definition, they operate spontaneously and lack sufficient organization and command to qualify as members of the armed forces. Civilian direct participation in hostilities is an IHL notion, and . In the recent conflict in Gaza, controversy raged over whether Israel used indiscriminate force, as the majority of victims were said to be unarmed civilians. 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. The same applies to individuals whose function is limited to the purchasing, smuggling, manufacturing and maintaining of weapons and other equipment outside specific military operations or to the collection of intelligence other than of a tactical nature. Derived from Article 3 common to the Geneva Conventions, the notion of taking a direct or active part in hostilities is found in many provisions of IHL. 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. Accordingly, DPH itself cannot be properly characterized as a breach of LOAC or as a war crime. 256. The IG in this manner affirms the equivalence of the terms "attacks" [7] and "hostilities". 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. In most cases, however, it would be reasonably possible for the armed forces to remove the physical obstacle posed by these civilians through means less harmful than a direct military attack on them. 270. Where IHL provides persons other than civilians with immunity from direct attack, the loss and restoration of protection is governed by criteria similar to, but not necessarily identical with, direct participation in hostilities. 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. Standards such as indirect causation of harm or materially facilitating harm are clearly too wide, as they would bring the entire war effort within the concept of direct participation in hostilities and, thus, would deprive large parts of the civilian population of their protection against direct attack. Likewise, the problem may also be attributed to lack of legal framework defining the status of members of armed groups and the notion of direct participation in hostilities. lawfully targeted, but only for the duration of his or her participation,253, as possible.); see Prosecutor v. Strugar, Case No. Id. In assess-ing direct participation in hostilities, the Interpretive Gui-dance's focus on the tactical level of war does not match the ICRCCOMMENTARY, supra note 81, at 619, 1944. ), but also had to grapple with more recent trends that further underlined the need for clarity. Trib. 241. This will be used to analyse traffic to the website, allowing us to understand visitor preferences and improving our services. the hostilities regardless of whether he or she is in combat or even armed.269 US DoD Law of War Manual, see chapter Section II: Cyber Operations, fn. 280. 281. was not a party to AP I, this principle has achieved customary status.). Thus, recruiters, trainers, financiers and propagandists may continuously contribute to the general war effort of a non-State party, but they are not members of an organized armed group belonging to that party unless their function additionally includes activities amounting to direct participation in hostilities. Five informal expert meetings were conducted from 2003 to 2008 in The Hague and Geneva, each bringing together 40 to 50 legal experts from academic, military, governmental, and nongovernmental circles, all of whom participated in their private capacity. In both cases, acts reaching the required threshold of harm can only amount to direct participation in hostilities if they additionally satisfy the requirements of direct causation and belligerent nexus. The International Committ Private military contractors may be individually hired or, alternatively, may be employees of private military corporations. In situations of armed conflict, even the use of force against persons not entitled to protection against direct attack remains subject to legal constraints. According to the travaux prparatoires for Additional Protocol II, the concept of armed forces of a High Contracting Party in Article 1 [1] AP II was intended to be broad enough to include armed actors who do not necessarily qualify as armed forces under domestic law, such as members of the national guard, customs, or police forces, provided that they do, in fact, assume the function of armed forces. Until the civilian in question again engages in a specific act of direct participation in hostilities, the use of force against him or her must comply with the standards of law enforcement or individual self-defence. 13. 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