The term “protected persons” in Geneva Conventions,[1]which acquired universal ratification[2]and thus reflect customary international law, is the heart of the balance required by international humanitarian law between military necessity and humanitarian protection. Similarly, the principle of distinction is a norm of Customary International Humanitarian Law that requires parties to an armed conflict to distinguish at all times between lawful targets (combatants) and unlawful targets (civilians) in the conduct of hostilities.[3]As a reflection of this rule, Article 48 and Article 52 of Additional Protocol I to the Geneva Conventions underline that civilians and civilian objects may not be the object of an attack during an international armed conflict.[4]Additional Protocol II[5]does not explicitly refer to this principle in non-international armed conflicts, but it remains nonetheless applicable due to its customary nature.
This article is about the limits of the protection accorded to the civilians deriving from the principle of distinction, i.e. direct participation in hostilities. Both Additional Protocols stipulate the protection of the civilian population and individual civilians against the dangers of military operations.[6]Likewise, both protocols, on the limit of this protection, state that “Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.”[7]Further, Common Article 3 to Geneva Conventions on non-international armed conflicts explicitly refers to the protection granted to “[p]ersons taking no active part in the hostilities.”[8]“Direct participation in hostilities” is a term resulting from these rules. In the presence of direct participation in hostilities by a civilian, the protection granted to it by international humanitarian law is “suspended.”[9]It must be noted that suspension does not mean a change of status, i.e. civilian turning into a combatant.[10]Should the civilian lose protection due to direct participation in hostilities, it will be treated as combatant during and for such time it participates directly in hostilities. In the case that it is impossible to establish direct participation in hostility by the civilian, the civilian will be protected from being the target of attacks and any attack against it will be subject to the principle of proportionality under the scope of civilian casualty.[11]
Neither treaties and protocols nor customary international humanitarian law define in exact terms what direct participation in hostilities means.[12]Thus, the resort is had to the Article 31 of the Vienna Convention on the Law of Treaties, which states that the terms in a treaty must be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and the light of its object and purpose.”[13]The debate on the notion of direct participation in hostilities originates precisely from this point onwards. This debate is fundamental for the reason that modern-day conflicts involve more and more civilians in the conduct of hostilities. The reasons for this are numerous such as the increase of non-international armed conflicts in the absence of clearly defined armed forces, reasons that drive states to employ civilians for the sake of downsizing military for fiscal efficiency, to the advance of technology that makes states rely on private contractors and agents for the military use of these technologies.[14]
For this article, only the more intensely disputed parts of the definition of direct participation in hostilities will be discussed, whereas, for other parts, the statement of the generally accepted definition will suffice. Firstly, the term civilian will be established. Secondly, the constitutive elements and the time frame provided for the notion of direct participation in hostilities will be introduced. Lastly, the unsettled discussions on these issues will be elucidated.
Additional Protocol I defines civilians in international armed conflicts as “all persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are civilians”[15]In non-international armed conflicts, a civilian is suggested under the Common Article 3 of GCI-IV to be a person who is neither a member of armed forces nor a person who bears arms in the name of a non-state party to a conflict.[16]
I. Unless and for such time civilians take direct part in hostilities…
Civilians are protected against the dangers of hostilities “unless and for such time” they take direct part in them.
Direct participation in hostilities is inherently linked to the existence of an armed conflict, either of an international or non-international character.[17]Hostility is an act of injuring the enemy during an armed conflict, and participation in it is carried out by a civilian[18]who does not, in fact have a combatant status. The term “direct” concerns the degree of involvement by the civilian in the hostilities.[19]
Regarding the elements required for an act to be characterized as direct participation in hostility, the act must first surpass a harm threshold.[20]Secondly, there must be direct causation between the act and the military operation.[21]Lastly, this act must have a belligerent nexus in support of a party to the conflict.[22]
As stated above, direct participation in hostilities only suspends the protection of a civilian. Thus, when the time frame in which the civilian ceases its direct participation in the conduct of hostilities, it regains protection.[23]
II. Most disputed parts of the notion
It must be said first and foremost that almost all parts of the notion of direct participation in hostilities are disputed. This is a natural result of the absence of a clear definition in the treaty and customary international humanitarian law.However, although some debates pertain to nuances that have a relevantly more minor impact, some have major consequences in the protection granted to civilians. It is possible to group these major debates into two groups.[24]The first group relates to what amounts to direct participation in hostilities. The second relates to the meaning of “unless and for such time”, in other words, the time limit of the notion.
III. What amounts to direct participation?
The above-mentioned constitutive requirement that there must be direct causation between the act and the military operation makes the largest part of the debates on the question of what amounts to direct participation. Another debate that has an equally important impact is the criteria for the determination in cases of doubt on direct participation in hostilities by the civilian.
The requirement that there must be direct causation between the act and the military operation refers to the fact that there must be a “sufficiently close causal relationship between the act and the resulting harm.”[25]According to the International Committee of the Red Cross (ICRC), what makes participation direct rather than indirect is the fact that the harm is brought about in “one causal step” after the act of direct participation.[26]This means that the act in question must directly and specifically contribute to the realization of the harm, to the exclusion of acts indirectly causing harm. Although ICRC underlines that this does not mean that the act must be “indispensable” for the realization of the harm,[27]it is taken as such by certain scholars in the sense that in the absence of the act in question, it would not be possible for the act to be concluded.[28]The criticism is that the “one causal step” approach excluding indirect causes of harm is excessively narrow because certain acts that indirectly contribute to attacks should be considered direct participation.[29]The views in this regard admit that certain acts that contribute to the “capacity of a party to the conflict”[30]or “war effort”[31]do not amount to direct participation such as general political propaganda or logistics and financing. However, according to these views, it may suffice for an indirect contribution to be direct participation despite requiring more than “one causal step”. For instance, a munition worker is not directly participating in hostilities. Still, the one loading fuel or fundamental technical data into the weapon system is, although it is not one causal step away from bringing about the harm.[32]The approach of ICRC is perceived to lack response to the needs of modern-day armed conflicts that are made up of a series of causal steps[33]and it creates problems for both civilians and security forces as it does not sufficiently meet the needs of the threats faced them.[34]It is also suggested that states would never accept this narrowness to qualify as a norm of customary international law.[35]Some state practices may be viewed to support this view by requiring only “a significant probability of the existence” of a risk of harm.[36]
A view that seems more precise and creates a plausible balance in the “one causal step” approach of the ICRC suggests that instead of limiting the scope to acts of one causal step away from the harm, the “criticality” of the act to the “direct” application of violence should determine direct participation of hostilities.[37]
The second important debate concerning what amounts to direct participation in hostilities is on the choice of presumption in case of doubt. That is to say, according to ICRC, in the case of a civilian act that cannot be clearly characterized as direct participation in hostilities, the act should be presumed to not amount to direct participation in hostilities.[38]The purpose is to avoid arbitrary attacks against civilians which will render the protection granted to them meaningless.[39]A contrary approach is that in the case of “grey areas”, a “liberal approach” should be adopted to presume that there is direct participation in hostilities.[40]This approach is also based on providing better protection for civilians but the reasoning is different in two ways. Firstly, the uncertainties will make combatants feel too much doubt that eventually, they will lose respect to international humanitarian law norms.[41]Secondly, the more insecure the civilians feel about the threat of attack, the less likely they are to participate in hostilities, which would eventually make them stay away from the threats of being targeted by combatants.[42]
Although the ICRC approach seems more in line with the wording of Article 50(1) of the Additional Protocol I which states “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian”, this is not a sufficient basis to conclude in favor of it. Firstly, the wording concerns the “civilian status” and not the “suspension” of protection granted to civilians. Secondly, the exact wording cannot be found in the Additional Protocol II on non-international armed conflicts where civilians are more inclined to directly participate in hostilities whereas in international armed conflicts that Additional Protocol I regulates, it is usually the state armed forces that are obliged to distinguish themselves as combatants[43]who conduct hostilities. Furthermore, hostilities are generally conducted in a quick fashion that does not allow for meticulous decision-making in uncertain cases. This is why it seems more reasonable to deem that the presumption of the absence of direct participation in hostilities will make combatants lose respect in international humanitarian law and thus prefer the second approach over the first one.
IV. Unless and for such time: Farmer by day, fighter by night
Suspension of protection of the civilians is resumed once the civilian ceases to directly participate in hostilities.[44]The question of when this happens is an intense debate point.
ICRC defines direct participation in hostilities as “specific acts” whereby a civilian takes part in the conduct of hostilities.[45]Consequently, it suggests that the civilian regains protection once the specific act is completed.[46]According to ICRC, this is called the “revolving door” phenomenon, which is an integral part of international humanitarian law.[47]For instance, a farmer can turn into a fighter at night but having completed its operation at night and having returned from the operation, it can regain protection.[48]ICRC strongly underscores the importance of restraining direct participation to specific acts given that direct participation in hostilities does not change the status of the civilian into a combatant.[49]Hence, it should not be assumed that in the existence of multiple specific acts of direct participation in hostilities, there will be “unspecified future” acts of hostility.[50]This approach is supported by case law[51]and certain scholars on the basis that the clear wording of Article 51(3) Additional Protocol I and Article 13 (3) of Additional Protocol II which state that civilians enjoy protection “unless and for such time” they directly participate in hostilities.[52]Further, it is suggested that assuming direct participation in hostilities despite the absence of a specific act is impractical as it cannot be expected from a soldier to know whether or not this civilian has participated in the conduct of hostilities before.[53]
This approach is criticized for not being in line with the purpose of international humanitarian law.[54]The rule must be that there is either an “extended non-participation” or an “affirmative act of withdrawal” in the conduct of hostilities.[55]Claiming otherwise would cause combatants to lose respect in international humanitarian law for its unpredictable consequences led by civilians constantly opting in and out of hostilities.[56]
Although, indeed, individuals constantly opting in and out of hostilities are difficult to determine the lawful targets for combatants, the probability of this approach leading to arbitrary deprivation of civilian life is more likely and riskier than the potential loss of respect by combatants for international humanitarian law. Unlike in the case of presumption of direct participation in hostilities in the case of doubt in section III, the civilians who ceased to take direct participation in hostilities do not have the option to alienate themselves from conflicts for the mere reason that they already ceased to do so. Further, a treaty should be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”[57]The clear wording in the Additional Protocols also does not allow for the adoption of the second approach in this section.
V. Conclusion
Civilians are protected from the dangers of armed conflict unless and for such time they take direct part in hostilities. Direct causation of the participatory act to the harm brought into the hostilities should be determined by the critical nature of the act to the emergence of the damage. In cases of doubt, the direct nature of the participation should be presumed to provide for effective implementation of international humanitarian law norms and better protection of civilians encouraged to alienate themselves from hostilities. Civilians regain protection once they cease to take direct part in the conduct of hostilities. This must be understood as ceasing the specific act of direct participation in hostilities. A conclusion otherwise would lead to arbitrary deprivation of life of civilians and contrary to the precise wording of the Additional Protocols.
Image: Syriahr
Sources:
[1]The First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field(adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (GCI) art.13 ;The Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea(adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (GCII) art.13;The Third Geneva Convention relative to the Treatment of Prisoners of War(adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (GCIII) art.4;The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War(adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (GCIV) art.4.
[2]International Committee of the Red Cross, International Committee of the Red Cross Annual Report 2017, (2018)9FCJ!
[3]Henckaerts, Jean-Marie and Louise Doswald-BeckCustomary International Humanitarian Law, Volume 1, Rules(Cambridge University Press 2009) p.3 [hereinafter CIHL Rules]
[4]Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts(adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (API) art. 48, art.52.
[5]Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non- International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (APII)
[6]AP I art.51; AP II art.13.
[7]AP I art.51(3); AP II art.13(3)“Civilians shall enjoy the protection afforded by this Part, unless and for
such time as they take a direct part in hostilities.”
[8]GCI-IV, art.3.
[9]International Committee of the Red CrossInterpretive Guidance on The Notion Of Direct Participation In Hostilities Under International Humanitarian Law(Nils Melzer ed.2009) 12. [hereinafter ICRC Guidance]
[10]ICRC Guidance, 44.
[11]CIHL Rules, 48.
[12]ICRC Guidance, 12.
[13]Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 33 (VCLT) art.31
[14]Schmitt, Michael N, “Direct Participation in Hostilities and 21st Century Armed Conflict” (2004)Horst Fischer et al. (eds.), Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck505, 513.
[15]AP I, Art.50(1).
[16]Id.,28.
[17]Id.,41.
[18]Id.,41.
[19]Ibid.
[20]ICRC Guidance, 46.
[21]Ibid.
[22]Ibid.
[23]Id.,70.
[24]Schmitt, Michael N, “Direct Participation in Hostilities and 21st Century Armed Conflict” (2004)Horst Fischer et al. (eds.), Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck505, 508-509; Marco Sassòli,Joint Series – Direct Participation In Hostilities: What Are The Issues And Where Are The Controversies?8 September 2015 (https://intercrossblog.icrc.org/blog/direct-participation-in-hostilities-what-are-the-issues-and-where-are-the-controversies)
[25]ICRC Guidance, 52.
[26]Id.,53.
[27]Id.,54.
[28]Schmitt, Michael N, “Direct Participation in Hostilities and 21st Century Armed Conflict” (2004)Horst Fischer et al. (eds.), Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck505, 508.
[29]Boothby, William H., “Direct Participation in Hostilities – A Discussion of the ICRC Interpretive Guidance” (2010) 1(1)Journal of International Humanitarian Legal Studies143, 158.
[30]Ibid.
[31]W. Hays Parks, “Air Law and the Law of War,” (1994) Air Force Law Review 1, 133.
[32]Boothby, William H., “Direct Participation in Hostilities – A Discussion of the ICRC Interpretive Guidance” (2010) 1(1)Journal of International Humanitarian Legal Studies143, 159.
[33]Boothby, William H., “Direct Participation in Hostilities – A Discussion of the ICRC Interpretive Guidance” (2010) 1(1)Journal of International Humanitarian Legal Studies143, 159.
[34]Watkin, Kenneth, “Opportunity Lost: Organized Armed Groups and The ICRC ‘Direct Participation in Hostilities’ Interpretative Guidance” (2010)42 International Law and Politics641, 680.
[35]Çetinkaya, Lokman Burak, “The ICRC’s Formulation of the Notion of Direct
Participation in Hostilities: A Critical Legal Analysis” (2016)Law & Justice Review,361, 369
[36]Public Committee Against Torture v. Government(2006) Concurring opinion of Judge Beinisch HCJ 769/02 459, 529
[37]Schmitt, Michael N, “Direct Participation in Hostilities and 21st Century Armed Conflict” (2004)Horst Fischer et al. (eds.), Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck505, 509.
[38]ICRC Guidance, 75.
[39]Id.,76.
[40]Schmitt, Michael N, “Direct Participation in Hostilities and 21st Century Armed Conflict” (2004)Horst Fischer et al. (eds.), Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck505, 509.
[41]Ibid.
[42]Ibid.
[43]GCIII, Art. 4/A(1) and (2); API, Art. 44(3).
[44]ICRC Guidance, 70.
[45]Id.,43.
[46]Id.,70.
[47]Ibid.
[48]Çetinkaya, Lokman Burak, “The ICRC’s Formulation of the Notion of Direct Participation in Hostilities: A Critical Legal Analysis” (2016)Law & Justice Review,361, 368
[49]Id.,48.
[50]Ibid.
[51]Prosecutor v. Pavle Strugar(2008) ICTY IT-01-42-A, 68: “…As the temporal scope of an individual’s participation in hostilities can be intermittent and discontinuous…”
[52]Marco Sassòli,Joint Series – Direct Participation In Hostilities: What Are The Issues And Where Are The Controversies?8 September 2015 (https://intercrossblog.icrc.org/blog/direct-participation-in-hostilities-what-are-the-issues-and-where-are-the-controversies)
[53]Ibid.
[54]Schmitt, Michael N, “Direct Participation in Hostilities and 21st Century Armed Conflict” (2004)Horst Fischer et al. (eds.), Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck505, 510.
[55]Ibid.
[56]Ibid.
[57]VCLT art.31
