DIRECT PARTICIPATION IN ‘HOSTILITIES’ UNDER THE PURVIEW OF INTERNATIONAL

HUMANITARIAN LAW

HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW

DIRECT PARTICIPATION IN ‘HOSTILITIES’ UNDER THE PURVIEW OF

INTERNATIONAL HUMANITARIAN LAW

Submitted by –

Akash Saxena – 17A014

Semester – VI

Faculty Supervisor-

Mr. Vikas Gandhi

Assistant Professor of Law

Gujarat National Law University

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DIRECT PARTICIPATION IN ‘HOSTILITIES’ UNDER THE PURVIEW OF INTERNATIONAL
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TABLE OF CONTENT

Sr. No. TOPIC PAGE NO.

1 INTRODUCTION 2

THE TREATY AND CUSTOMARY INTERNATIONAL LAW NOTION 3

2 OF DIRECT PARTICIPATION IN HOSTILITIES

3 4
THE ICRC'S INTERPRETIVE GUIDE ON THE NOTION OF
DIRECT PARTICIPATION IN HOSTILITIES: AN INTRODUCTION

4 THE SPECIFIC ACTS AND THE LEVEL OF HARM WHICH IS 7

COHERENT TO DIRECT PARTICIPATION IN HOSTILITIES

5 PRESUMPTIONS IN ASSESSING DIRECT PARTICIPATION IN 13

HOSTILITIES

6 THE LEGAL CONSEQUENCES FOR CIVILIANS FOUND 13

PARTICIPATING DIRECTLY IN HOSTILITIES

7 CONCLUSIONS 13

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 DIRECT PARTICIPATION IN ‘HOSTILITIES’ UNDER THE PURVIEW OF INTERNATIONAL
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DIRECT PARTICIPATION IN ‘HOSTILITIES’ UNDER THE PURVIEW OF

INTERNATIONAL HUMANITARIAN LAW

 INTRODUCTION

The term ‘direct participation in hostilities’ has very arduous meaning in the realm of
International Humanitarian Law (IHL), and refers to those activities which are undertaken by
combatants1. As a generic rule, all those with combatant status are authorised to participate
directly in hostilities and are immune from prosecution for their participation. A civilian, on
the other note, enjoys immunity against direct attack because they refrain from any such
direct participation in hostilities.2 As civilians, they are protected from any direct targeting
for so long as they refrain from participating in combatant activities which would otherwise
be compromising their protected status.

Civilian activities which amounts to direct participation in the hostilities temporarily

suspends civilians' immunity which is inherent in nature against direct targeting, and exposes
him/her to direct targeting as a legitimate military target, and to prosecution for their
participation in hostilities 3 . This particular area has been the subject of controversy; also
neither the Geneva Conventions nor their Additional Protocols provides for a definition of as
to what activities amounts to "direct participation in hostilities".4

This void in the law is of genuine concern in the light of the realities of contemporary
International Armed Conflicts, wherein non-state actors (often dressed as civilians) are
playing an increasingly important role, and civilians are getting active as ‘farmers by day,
fighters by night’5. There is a need for a consensual view on understanding what exactly
constitutes as direct participation in hostilities, with emphasis on until what extent such
holistic activities can be regarded as unlawful 6 . This is precisely what the International
Committee for the Red Cross (ICRC) sought to address in the drafting of the Interpretive
Guide.

1
ROGERS, YIHL (19), 2009.
2
SCHMITT, NYU J Int'l L & Pol (714-715), 2010.
3
ICRC 2009 http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature-020609 12; Schmitt
2010 NYU J Int'l L & Pol 703
4
FENRICK, YIHL (292), 2009; ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/directparticipation-ihl-
feature-020609 (12), 2009.
5
JENSEN, "Direct Participation in Hostilities" 2003-2012.
6
GOODMAN AND JINKS, NYU J Int'l L & Pol (637), 2010.

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THE TREATY AND CUSTOMARY INTERNATIONAL LAW NOTION OF DIRECT PARTICIPATION IN

HOSTILITIES

 DIRECT PARTICIPATION IN TREATY LAW

The very concept of ‘direct participation in hostilities’ is referred to in many provisions of

various treatise under IHL, including GC’s common article 3(1)10 and AP I article 51(3). The
commentary on AP I article 51 elucidates : ‘direct participation means acts of war which by
their nature or purpose are likely to cause actual harm to the personnel and equipment of the
enemy armed forces’.7

The commentary differentiates "direct participation" from general "war effort", which is
largely expected of the whole population, and adopts a cautious interpretation of the term
direct participation in hostilities.8 The commentary is limited to its understanding of ‘direct
participation in hostilities’ to acts of war which is intended by their very nature and purpose
to hit specifically the personnel and material of the armed forces of the adverse party.9

Whilst, IHL treaty law makes a reference to this concept, the treaty law does not offer any
specific definition of the phrase or specify definitively when an individual's actions can be
curbed under the ambit of direct participation in hostilities.10

 DIRECT PARTICIPATION IN CUSTOMARY IHL

At national level, the principle that a civilian loses his/her immunity against direct attack
when he/she participates in hostilities is propagated by many states' military manuals, and is
also endorsed by reported state practices, official statements and judicial decisions11, even by
states that were not party to AP I. 12 According to the study of ICRC the Customary
International Law (CIL) status of the said provision is that, there is no evidence as to
contrary state practice 13 , and on the whole the principle was seen to be as a "valuable
reaffirmation of an existing rule of Customary International Law"14.

7
SCHMITT, NYU J Int'l L & Pol (711), 2010.
8
HEATON, A F L Rev (177), 2005.
9
Infra at 7.
10
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 (12; 41), 2009.
11
Public Committee against Torture in Israel v Government of Israel 2006 HCJ 769/02.
12
HENCKAERTS; DOSWALD, ‘Beck Customary International Humanitarian Law’ 23.
13
Id.
14
Infra at 12.

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For the most part states work on the assumption that determining whether an activity amounts
to direct participation in hostilities or not have to be done on a "case-to-case basis"- although
the facts reveals that condition is such that very few cases explain what activities actually
amount to direct participation.15

At a zonal level, the IACH (Inter-American Commission on Human Rights) understands the
term "direct participation in hostilities" to mean "acts which, by their nature or purpose, are
intended to cause actual harm to enemy personnel and materiel".

As witnessed by the ICRC's study into customary international law, "a precise definition of
the term direct participation in hostilities doesn’t really exist"16 either in the state practices or
in the International Jurisprudence17. However, civilian’s ‘use of weapons or other means to
commit acts of violence against human or material enemy forces’, 18 amounts to direct
participation in hostilities. Short of this very obvious occurrence, states have to interpret: the
notion of direct participation in hostilities in good faith in accordance with the ordinary
meaning to the terms in their very context and in the light of the object and purpose of IHL.19

 THE ICRC'S INTERPRETIVE GUIDE ON THE NOTION OF DIRECT PARTICIPATION IN

HOSTILITIES: AN INTRODUCTION
 THE DRAFTING PROCESS AND THE LEGAL IMPLICATIONS OF THE GUIDE

Between the time period of 2003-2008, more legal experts (drawn from NGOs, academia and
governmental bodies, including the military) came together on five occasions at the invitation
of the ICRC20. The discussions acknowledged the ICRC's Interpretive Guide on the Notion of
Direct Participation in Hostilities under IHL. Initially, the ICRC sought a unanimous
consensus at these expert group meetings, but soon it became apparent that seeking unanimity
might scamper the whole project21. In the end, the ICRC decided to omit all the names of the
external experts, and instead had an Assembly of the ICRC to adopt the final version of the
‘guide’ on 26 February 2009.22

15
HENCKAERTS; DOSWALD, ‘Beck Customary International Humanitarian Law’ 22.
16
Id.
17
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 (41), 2009.
18
Infra at .12.
19
Infra at 17.
20
FENRICK, YIHL (288)th, 2009; VAN DER TOORN, http://www.works.bepress.com /damien_van_der_toorn/
(22), 2009.
21
ROBERT, YIHL (41), 2009.
22
FENRICK, YIHL ( 288), 2009,

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The idea or intent behind ICRC’s Interpretive Guide was not to change the existing binding
treaty and customary based rules of IHL, but rather to offer an inclusive guide as to how to
interpret the term legally – by balancing both military necessities and humanitarian concerns.

As an Interpretive Guide the document is not legally binding - but coming from the ICRC the
guide was intended to have persuasive influence23, and some suggested it ‘may even be seen
as a secondary source to International Law analogous to writings of the most highly
Qualified Publicists.’

Until and unless it becomes binding, or is acknowledged as having crystallised into

Customary IHL, Fenrick24 warns that there’s a bleak chance that legal advisors to government
department will be inclined to adopt it as wholesome, unless it can be shown that these
recommendations are ‘well researched, well thought out, relevant and persuasive’.

 THE ICRC'S INTERPRETIVE GUIDE'S LIMITATIONS AND CONTROVERSIES

The Interpretive Guide vehemently limits its analysis of the term direct participation in
hostilities to decisions in and around military targeting. It does not purport to deal with the
issues of like - how direct participation impacts on questions around detention, or how this
impacts on the claim of the combatant against his immunity from the prosecution.25

Once it gets ascertained that an issue of direct participation has an impact over targeting
decisions, the first enquiry that the Interpretive Guide provides for is whether or not the
particular hostile act comes under the purview of restricted acts which amounts to direct
participation in hostilities26. As to determining which specific activities amounts to direct
participation in hostilities is not dependent on one's ‘status, function, or affiliation’,27 nor
does it matter whether or not the act is carried out by civilians or members of the armed
group on a spontaneous, sporadic, or unorganised basis; or as some organised continuous
combat function .

Even before the first meeting of the experts, it was quite apparent that there was difference of
opinions on how one should interpret the phrase direct participation in hostilities. Some
favoured a more restricted form of interpretation, equating direct participation with actual

23
Id.
24
FENRICK, YIHL (300), 2009.
25
WATKIN NYU J Int'l L & Pol (670), 2010; GOODMAN, JINKS, NYU J Int'l L & Pol (638), 2010.
26
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature-020609 (45-46), 2009.
27
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature-020609 (10), 2009.

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combat. Others believed of somewhat a more liberal point of interpretation was appropriate,
and favoured an approach which essentially encompasses all conducts that functionally
correspond or is coherent to government armed forces, including not only the actual conduct
of hostilities, but also the other activities such as planning, organising, recruiting and
assuming logistical functions.

These conflicting approaches were not new to the ICRC. Already in the commentary on AP I,
the ICRC has earlier noted that to restrict this concept to just combat and active military
operations would be narrow view, while extending the same to the entire war effort would be
too broad.

Given this historical and competing background, it was not at all surprising that the guide has
generated some heated academic debates. At the heart of much of the generalised criticism
levelled at the Interpretive Guide is its alleged failure to strike an adequate balance between
humanitarian concerns and military necessities in the manner which was intended by the
Geneva Conventions and Additional Protocols.28

Schmitt and Boothby were both critical of what they claimed is an overly-restrictive
interpretation.29 Boothby30 argued that the interpretation of ICRC with respect to concepts of
preparation, deployment, and return is very restrictive in nature and Schmitt31 had his concern
regarding the fact that definition ignored support activities not directly causing harm to the
enemy’. On the contrary: other experts would criticise the Interpretive Guide's definition as
too generous because, in certain circumstances, it might allow the targeting of civilians who
does not pose an immediate threat to the enemies.32

Some academics concluded that ‘the deficiencies which are identified demonstrate a general
failure to fully appreciate the operational complexity of the modern warfare’. 33

Others have questioned whether or not the Interpretive Guide achieves what it set out to do
i.e., to provide a generally accepted interpretation of the term.34 Some argued that, rather than
re-stating the law in a manner that would prove useful for practitioners and courts, terms like

28
VAN DER TOORN, http://www.works.bepress.com/damien_van_der_toorn/1 45, 2009.
29
Id.
30
BOOTHBY, NYU J Int'l L & Pol (743), 2010
31
MELZER, NYU J Int'l L & Pol (835), 2010.
32
Id,
33
SCHMITT NYU J Int'l L & Pol (699), 2010
34
WATKIN , NYU J Int'l L & Pol (694), 2010

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- ‘revolving door of protection’, ‘continuous combat function’, and ‘persistent recurring

basis’ injects new, ambiguous, and difficult to justify concepts into the lexicon of IHL.35

In response to all these criticisms, Melzer (the chief author of the guide) says that the
Interpretive Guide adopts a neutral, impartial and quite a balanced approach - resisting
proposals from both the ends, while ensuring ‘a clear and coherent interpretation of IHL
consistent with its underlying purposes and principles’. Aside from the differences in the
degree of interpretation, there is very less controversy around the all-important heart of the
guidance, as to determining how one defines direct participation in hostilities. Altogether,
after careful consideration of the critiques prepared by Watkin, Schmitt, Boothby, and Parks,
nothing indicates that the Interpretive Guide is, substantially inaccurate, unbalanced, or
otherwise inappropriate in a way, or that the recommendations stipulated cannot be
realistically transformed into operational practice.36

 THE SPECIFIC ACTS AND THE LEVEL OF HARM WHICH IS COHERENT TO DIRECT

PARTICIPATION IN HOSTILITIES

The concept of direct participation in hostilities is the means to determine when civilians'
actions can led to compromising of their otherwise protected civilian immunity.37

According to the ICRC's Guide, before an act can be summed up as amounting to direct
participation in hostilities it must meet three cumulative criteria:

(1) Act must strike at the military operations or military capacity of a party to an armed
conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected
against direct attack38 (threshold of harm); and

(2) There must be some direct causal link between the act and the harm which is most likely
to result either from the act, or from the coordinated military operation of which the said act
constitutes an essential part39 ; and

35
Id.
36
WATKIN 2010 NYU J Int'l L & Pol (694), 2010.
37
BOOTHBY 2010 NYU J Int'l L & Pol (755-756); SCHMITT 2010 NYU J Int'l L & Pol (704).
38
ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International
Humanitarian Law, Geneva, (May 2009).
39
MICHAEL MEYER AND CHARLES GARRAWAY, ‘Clearing the Fog of War? The ICRC’s Interpretive Guidance
on Direct Participation in Hostilities’.

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(3) The act must be specifically designed or committed in a way as to directly cause the
required threshold of harm in support of a party to the conflict and to the detriment of
another40 as to establish a. ‘belligerent nexus’

 THE THRESHOLD OF HARM

The first criterion - the "threshold of harm" determination - requires that the harm be41

(a) Of a military quality, or

(b) Harm42 of a protected person or the object,

It must be reasonably expected to arise from a civilian's actions before the civilian can be said
to be participating directly in the hostilities.43 ‘They must either harm the enemy's military
operations or capacity, or they must use means and methods of warfare directly against
protected persons or objects.’44 The only requirement over here is the likelihood that the act
can bring this sort of harm, it is not necessary that the harm materialises.45 Moreover, it is not
the quantum of harm caused to the enemy which determines the criteria for threshold of harm
criterion46, but rather the nature of the intended harm.

MILITARY HARM

As Melzer pointed out, military harm is common in armed conflicts; the term applies only to
acts which "contribute militarily" to the belligerent's success 47 . The term Military Harm
cannot be used in respect of civilian objects, despite the fact that objects may contribute to
the military success of a particular belligerent retaliation.48 This interpretation is in line with
the unanimously accepted definition of what constitutes a military objective, it doesn’t

40
ICRC 2009 http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 46-47.
41
The degree of harm includes "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" (ICRC 2009 http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-
feature-020609 97).
42
ICRC 2009 http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 47.
43
Id.
44
MELZER, 2010 NYU J Int'l L & Pol (862).
45
SCHMITT, 2010 NYU J Int'l L & Pol (724).
46
Id.
47
MELZER, 2010 NYU J Int'l L & Pol (858).
48
SCHMITT, 2010 NYU J Int'l L & Pol (717).

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include the political, economic and psychological contributions which might play a role in a
military victory but ain isolation are not considered military objects.49

ATTACKS AGAINST PROTECTED PERSONS

In accordance with treaty law, a civilian's actions may amount to direct participation in
hostilities when such actions constitute attacks centred at civilians and civilian objects -
despite the fact that the said actions might cause no specific military harm. However, acts
which fall short of causing military harm are at minimum required to ‘cause at least death,
injury, or destruction of these civilians or civilian objects’.50

ACTIVITIES WHICH HAVE BEEN REFERRED AS SATISFYING THE THRESHOLD OF HARM

REQUIREMENT

These include "acts of violence against human and material enemy forces"; 51 deliberately
52
causing physical or functional damage(s) to military objects, operations or capacity;
causing hindrance in military deployments, logistics and communications; 53 demining the
opposition's mines; guarding captured military personnel to prevent them being forcibly
liberated; interfering with "military computer networks;54 wiretapping the adversary's high
command or transmitting tactical targeting information for an attack; directly targeting
civilians or civilian objects55; building defensive positions at a military base certain to be
attacked.

 ACTIVITIES WHICH HAVE BEEN REFERRED AS FALLING SHORT OF THE THRESHOLD OF

HARM REQUIREMENT

This includes building fences or roadblocks; disturbing necessities like electricity, water, or
food supplies; assuming the control of cars and fuel; hacking computer networks; arresting or
detaining individuals who potentially have a serious impact on public security, health, and
commerce; declining appeals to engage in actions that would positively affect one of the

49
Id.
50
ICRC 2009 http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 49
51
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609, 48, 2009.
52
Id.
53
Infra at 15.
54
SCHMITT, 2010 NYU J Int'l L & Pol (715).
55
SOLIS LAW OF ARMED CONFLICT 203; ICRC http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-
participation-ihl-feature-020609 49, 2009.

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parties; the civilian rescuing of aircrew members 56 ; and producing improvised explosive
devices57.

 THE DIRECT CAUSATION REQUIREMENT

The second requirement, also referred to as the Direct Causation Test, was included as a
result of the controversy traditionally surrounding questions about whether or not a ‘General
War Effort’ and activities undertaken to sustaining war would amount to direct participation
in hostilities. While it is certainly true that war-sustaining activities are indispensable to the
war effort, which in its effect harms the adversary, a line must be drawn between the two
degrees of involvement.58

All the experts present at the ICRC's expert meetings agreed on the centrality of a relatively
close relationship between the act in question and thereby the consequences affecting the on-
going hostilities 59 . Schmitt 60 expresses it well, ‘sometimes causation is so direct that the
shield of humanitarian considerations must yield in the face of military necessity, while in
other situations the causal connection is too weak (or indirect) to overcome humanitarian
factors.’ As a result, to prevent deprivation of the civilian population of their protected status,
there must be a close link between the hostile act and the resulting harm before the action can
be concluded as direct participation in hostilities.61

According to the Interpretive Guide, Direct Causation is understood as one causal step
between the hostile act and the resultant harm. 62 This notion of direct causation doesn’t
include activities that indirectly cause harm. 63 Similarly mere temporal or geographic
proximity 64 is insufficient to justify a cause of direct participation. Moreover, in cases of
collective operations, the Interpretive Guide does not recognise that ‘the resulting harm does
not have to be directly caused by each person involved individually, but only by the collective
operation as a whole.’65 In a nutshell, where a particular activity or activities does not result
in the required degree of harm, those individual actions might nevertheless constitute direct
56
Melzer 2010 NYU J Int'l L & Pol (860).
57
Id.
58
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature-020609 (53), 2009.
59
Schmitt 2010 NYU J Int'l L & Pol 725.
60
Schmitt 2010 NYU J Int'l L & Pol 726.
61
Id.
62
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature-020609 (53, 55), 2009;
Melzer 2010 NYU J Int'l L & Pol (866).
63
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature-020609 (56), 2009
64
Id.
65
MELZER, NYU J Int'l L & Pol ( 866), 2010.

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participation in hostilities where the actors are "part of a collective operation” that directly
causes harm of the required threshold.

 THE BELLIGERENT NEXUS REQUIREMENT

According to the ICRC's Guide, the final requirement is that of the specific harm having a
link to the hostilities.66 The belligerent nexus requirement is there to make it complicit that
those criminal activities which are simply facilitated by the hostilities and are not intended to
specifically support one party while causing the requisite threshold of harm to the opposing
party are excluded from the ambit of direct participation in hostilities. As Rogers67 points out,
‘in case of the children throwing Molotov or stones at enemy military patrol’, patrolling
members have to assess carefully whether the actions of the children are just some petty
common criminal activities or whether the children have forfeited their right of inherent
civilian immunity from direct targeting through these actions. In short, the requirement of the
test, that an act must be specifically designed to directly cause the required threshold of harm,
in furtherance of a support of a party to the conflict and to the detriment of another party.68

In other words hostile actions which are not intended to cause harm to a specific party to the
conflict while supporting the opposing party doesn’t amount to direct participation in
hostilities69.

Moreover when civilians are not aware of the role that they are playing in the conduct of
hostilities or when they are completely deprived of their physical freedom of action, they
cannot be regarded as performing an action in any meaningful sense and, therefore, they
remain protected against direct attack despite the belligerent nexus of the military operation
being struck in which they are being instrumentalised.

 GENERAL COMMENTS REGARDING SPECIFIC HOSTILE ACTS WHICH AMOUNT TO

DIRECT PARTICIPATION IN HOSTILITIES

Schmitt70, says that all three essentials or parts of the test for direct participation in hostilities
represents legitimate factors which have a valid role to play in assessing when civilians'
actions compromise their immunity against direct targeting. However, the core of his

66
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 (62), 2009.
67
ROGERS, YIHL 19, (2004).
68
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 (64), 2009.
69
SCHMITT, NYU J Int'l L & Pol (735), 2010; MELZER, NYU J Int'l L & Pol (873), 2010.
70
SCHMITT, NYU J Int'l L & Pol (739), 2010

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criticism is that there are insufficiencies to be found in each of the elements, which give rise
to what he considers to be an ‘under-inclusive’71 notion of direct participation in hostilities.
Schmitt's concern is that the pro-humanitarian treatment of the concept of direct participation
reveals an ignorance of the realities of the modern warfare.

Rogers72 is of the opposite view and supports the narrow approach of interpretation in direct
participation, which will not risk jeopardising the IHL principle of distinction and civilian
immunity from direct targeting.

To this end Melzer notes that there were several safeguards built into the three constitutive
elements to ensure that the test would not permit the arbitrariness or erroneous targeting of
civilians. Despite all these criticism, many like Schmitt concede that the Guide is, superior to
the various ad hoc lists because it provides those tasked with applying the norm on the
battlefield with guidelines against which to gauge an action.73

 PRESUMPTIONS IN ASSESSING DIRECT PARTICIPATION IN HOSTILITIES

IHL operates on the presumption that in case of doubt, it will always go in the favour of the
individual in question, an individual will always be accorded the presumption of civilian
status and he is to enjoy immunity against the direct targeting74. It is a recognised principle of
customary IHL that in instances of doubt, any targeting assessment must be able to show
"sufficient indications to warrant an attack".75

The rationale behind this principle of distinction and the legal presumption thereby is that to
prevent civilians being targeted in an erroneous manner76. The same rationale would make
the presumption applicable in events when an assessment needs to be made as to whether or
not an individual has directly participated in hostilities. In the words of the ICRC's
Interpretive Guide in case of doubt as to whether a specific civilian conduct qualifies as direct
participation in hostilities, it must be presumed that the general rule of civilian protection
applies and that this conduct does not77.

71
Id.
72
Infra at 33.
73
MELZER, NYU J Int'l L & Pol (877), 2010.
74
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature-020609 (74), 2009.
75
Id.
76
ICRC, http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 (75), 2009.
77
Id.

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 THE LEGAL CONSEQUENCES FOR CIVILIANS FOUND PARTICIPATING DIRECTLY IN

HOSTILITIES

It is also worth noting that at all times - even while participating directly in the hostilities –
civilians have their primary civilian status. Their actions alone do not classify them as
combatants. They are, however, exposed to direct attack for so long as they persist on with
their direct participation in hostilities, despite their primary civilian status. While they lose
their civilian immunity against direct attack, they never lose their inherent civilian status.
Once they desist from their direct participation or disengage from the group's continuous
combat function, they regain their full civilian immunity against direct attack.

Civilians, by definition, do not get conferred with combatant status, with its attendant
authorisation to participate directly in hostilities, associated POW status, and immunity from
the prosecution. Consequently, when civilians are found to be participating directly in
hostilities without the requisite combatant characteristics, they are exposed to the potential of
criminal prosecution, even if during their participation they observed the laws of war
regarding the means and methods of warfare78.The problem for civilians taking a direct part
in hostilities or acting with a continuous combat function is that they very often ambush an
adversary while failing to adequately distinguish themselves from the civilian population and
feigning the right to civilian immunity against direct targeting.79

CONCLUSION

At present the ICRC's Interpretive Guide appears to provide a neutral, impartial and a very
balanced interpretation of the IHL principle against direct participation in hostilities by the
civilians. In setting of the minimum threshold of harm, the Interpretive Guide respects the
customary IHL distinction between mere general war effort and the true direct participation
in hostilities.80 In applying the direct causation requirement, the Interpretive Guide attempts
to limit targeting decisions which may be overly broad, arbitrary and simply incorrect81. The
belligerent nexus distinguishes occasions of legitimate military targeting from common
criminal activities.

78
ICRC. http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 (83, 84), 2009;
ROBERTS, YIHL (41); MELZER, Targeted Killings (329).
79
ICRC. http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature020609 (85), 2009
80
MELZER, NYU J Int'l L & Pol (877), 2010.
81
MELZER, NYU J Int'l L & Pol (867), 2010.

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 DIRECT PARTICIPATION IN ‘HOSTILITIES’ UNDER THE PURVIEW OF INTERNATIONAL
HUMANITARIAN LAW

As for the temporal scope of the loss of civilian immunity from attack, the revolving door
phenomenon ensures maximum protection for the civilian population against arbitrary
targeting decisions 82 - in line with the fundamental principles of IHL. The concept of a
‘Continuous Combat Function’ distinguishes those ‘Farmers by Day and Fighters by Night’
who participates directly in hostilities from those who merely provide indirect support for a
belligerent party.

At all times it is evident that the Interpretive Guide adheres to the longstanding IHL principle
of presumptive civilian status and immunity against direct attack in cases of doubt. The
Interpretive Guide is also clear that, even while participating directly in hostilities, these
civilian participants retain their primary civilian status - albeit without immunity against
direct attack during their active and direct participation in hostilities. Their participation in
hostilities does not render them authorised combatants, which is why they face criminal
prosecution for their unauthorised participation in hostilities, in some instances on serious
charges of perfidy. Nevertheless, the cessation of their participation in the hostilities restores
their full civilian immunity against direct targeting.

While there has been criticism directed at aspects of the Interpretive Guide, most of them
have been on the grounds that it is under-inclusive, even those critics concede that "the three
constitutive elements reflect factors that undoubtedly must play into such an analysis83", and
that the Interpretive Guide is superior to the various ad hoc lists because it provides those
tasked with applying the norm on the battlefield with guidelines against which to gauge an
action.

All in all after careful consideration of the critiques prepared by Watkin, Schmitt, Boothby
and Parks, nothing indicates that the ICRC's interpretive guidance is substantively inaccurate,
unbalanced, or otherwise inappropriate in any manner, or that its recommendations cannot be
realistically be implemented into operational practice.84 And last but not the least the Guide's
cautious interpretation of direct participation in hostilities ensures that the fundamental
principles of distinction and civilian immunity upon which all of IHL is built are observed.

82
BOOTHBY, NYU J Int'l L & Pol (757), 2010.
83
Infra at 51.
84
MELZER, NYU J Int'l L & Pol (915), 2010.

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