Direct Participation in Hostilities

by

Shane Darcy

• LAST MODIFIED: 26 May 2016
• DOI: 10.1093/obo/9780199796953-0137

Introduction

Contemporary armed conflicts involve not only fighting and military confrontation between regular armed forces and organized armed groups, but also the participation by civilians in hostilities in various ways. The concept of direct participation in hostilities during a situation of armed conflict has become a prominent and, at times, contentious issue in international humanitarian law. It goes to the heart of the principle of distinction, given that civilians who take a direct part in hostilities lose the protection from being attacked—which civilians are afforded under the laws of armed conflict—when they are taking an active part in hostilities. That civilians would no longer benefit from this immunity from attack once they take part in hostilities is not itself controversial; each of the main treaties of international humanitarian law establishes such a rule. The protections set out in Common Article 3 of the 1949 Geneva Conventions apply only to “persons taking no active part in the hostilities,” while Additional Protocol I provides in Article 51(3) that civilians lose certain protections against the effects of hostilities “for such time as they take a direct part in hostilities.” Similarly, protections afforded to civilians in Part IV of Additional Protocol II apply to persons “who do not take a direct part or who have ceased to take part in hostilities.” Direct participation in hostilities by civilians is not itself unlawful under international law, although in addition to losing their civilian immunity, civilians may face criminal charges under national law for such actions. Despite the frequent treaty references to the synonymous concepts of direct and active participation in hostilities, an internationally agreed definition has not been provided for in international law. The degree of uncertainty surrounding the precise meaning of direct participation in hostilities comprises a serious deficiency in the law given the serious implications that arise for persons who do engage actively in hostilities. International and national judicial bodies have sought to elaborate the concept, and the International Committee of the Red Cross convened a series of Expert Meetings leading to its 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (International Committee of the Red Cross 2009, cited under General Overviews, ICRC Interpretive Guidance, Non-International Armed Conflicts, Relevant Individuals and Groups: Private Military and Security Contractors, and Human Shields). The ICRC has articulated an authoritative definition of direct participation in hostilities, based on three cumulative requirements: a threshold of harm, direct causation, and a belligerent nexus. A number of participating experts have expressed disagreement with the ICRC’s approach, viewing it as having adopted an overly humanitarian approach, which fails to pay sufficient regard to military realities. This article sets out the key resources on the topic of direct participation in hostilities, beginning with general overviews and relevant treaty sources, before turning to its historical evolution and the ICRC’s important contribution on this topic. The article sets out sources on key elements of direct participation and on the concept’s application to particular contexts and practices that have been emphasized in the literature, such as targeted killings, cyber warfare and non-international armed conflicts, and to particular groups of persons, including private military and security contractors, child soldiers, peacekeepers, and human shields.

General Overviews

Despite the considerable scholarly attention that direct participation in hostilities has attracted in the literature on international humanitarian law, no monograph or edited collection focusing solely on the concept has been published as of the mid-2010s. That being said, a number of monographs do include individual chapters that explore direct participation in hostilities in some detail, and shorter expositions are provided in most of the general texts on international humanitarian law. The standout monograph in this regard is Crawford 2015, which examines the broader subject of civilian participation in armed conflict. Chapter 3 provides a detailed consideration of legal developments regarding direct participation, and chapter 8 considers how international law might be utilized to deal more effectively with civilians who participate in hostilities. Boothby 2012 looks at direct participation and the controversy it has attracted, in the context of chapter 8 that examines when persons can be targeted under the laws of armed conflict. With a focus on targeted killings, Melzer 2008 necessarily includes a rigorous discussion of direct participation in hostilities in chapter XI of this monograph concerning the principle of distinction. As a standalone document, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (International Committee of the Red Cross 2009, also cited under ICRC Interpretive Guidance, Non-International Armed Conflicts, Relevant Individuals and Groups: Private Military and Security Contractors, and Human Shields) presents a thorough and rigorous analysis of direct participation, as well as a workable, although contested, definition of the concept. As discussed further in the section ICRC Interpretive Guidance, this document is a key contribution to the debate and an authoritative interpretation of what is meant by direct participation in hostilities. Textbooks or other works by leading scholars that address international humanitarian law more generally, or are focused on specific areas such as the conduct of hostilities, regularly include brief discussions of direct participation that are useful for a summation of the topic and to ascertain a particular scholar’s view. Key among these are Henckaerts and Doswald-Beck 2005, which considers direct participation under customary international law, as well as the varying perspectives of Solis 2010, Dinstein 2010, and Bouchet-Saulnier 2013, each of which includes a short description of relevant legal rules and the key aspects of direct participation.

• Boothby, William H. The Law of Targeting. Oxford: Oxford University Press, 2012.

  DOI: 10.1093/law/9780199696611.001.0001

  A systematic analysis of direct participation in hostilities and its evolution to date. The author provides a number of suggested principles to inform individuals and States as to the meaning and implications of direct participation.

• Bouchet-Saulnier, Françoise. The Practical Guide to Humanitarian Law. 3d ed. Lanham, MD: Rowman & Littlefield, 2013.

  Discusses direct participation of hostilities in the context of the definition of civilians and provides a useful overview of the key issues and principal sources. It draws heavily on the 2009 Interpretive Guidance of the International Committee of the Red Cross, while noting the limitation of the concept of direct participation when compared with legal status for non-State armed groups (pp. 59–66).

• Crawford, Emily. Identifying the Enemy: Civilian Participation in Armed Conflict. Oxford: Oxford University Press, 2015.

  DOI: 10.1093/acprof:oso/9780199678495.001.0001

  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. Provides an analysis of how international law might evolve to deal with civilian participation in hostilities.

• Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict. 2d ed. Cambridge, UK: Cambridge University Press, 2010.

  DOI: 10.1017/CBO9780511845246

  An expert overview of direct participation in the context of the loss of civilian protection, which addresses the temporal factor and concrete actions that may constitute direct participation in hostilities (pp. 146–152).

• Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Humanitarian Law. Vol. 1, Rules. Cambridge, UK: Cambridge University Press, 2005.

  Considers the customary international law basis for rule 6 that “civilians are protected from attack unless and for such time as they take a direct part in hostilities” (p. 19). Offers an analysis of practice related to international and non-international armed conflicts, as well as definitional issues and the situations of doubt regarding a person’s status (pp. 19–24).

• International Committee of the Red Cross. Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. Geneva, Switzerland: ICRC, 2009.

  This outcome document from several years of Expert Meetings on direct participation in hostilities has contributed significantly to clarifying the contours of the concept and to advancing the debate. Provides analysis and recommendations concerning the concept of a civilian, direct participation in hostilities and modalities concerning loss of protection.

• Melzer, Nils. Targeted Killings in International Law. Oxford: Oxford University Press, 2008.

  DOI: 10.1093/acprof:oso/9780199533169.001.0001

  Considers direct participation in light of increasing civilian involvement in activities related to hostilities, and provides an analysis of the “restrictive” and “liberal” approaches to the concept. Includes a useful overview of the various approaches to the temporal scope of the loss of protection for participating civilians (pp. 328–353).

• Solis, Gary. The Law of Armed Conflict: International Humanitarian Law in War. Cambridge, UK: Cambridge University Press, 2010.

  DOI: 10.1017/CBO9780511757839

  An engaging discussion of the criteria for direct participation, which makes the distinction between direct and indirect participation and considers the concept of continuous combat function (pp. 202–206).