'Direct Participation in Hostilities': A Legal and Practical Road Test of the International Committee of the Red Cross's Guidance through Afghanistan

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ABSTRACT

The increasing difficulty in distinguishing between peaceful civilians and irregular forces in modern conflicts has necessitated closer legal analysis of the phrase 'direct participation in hostilities' as used in the Geneva Conventions and Additional Protocols. The International Committee of the Red Cross's ('ICRC') 'Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law', published in June 2009, undertakes such an analysis. The Guidance may well have a significant influence on international and national tribunals considering the meaning of direct participation in hostilities, as well as the framing and implementation of rules of engagement by states for current and future operations. This article offers a critique of the Guidance both in terms of its process and nature, as well as its substantive legal analysis of the phrase. It also evaluates whether the ICRC's interpretation strikes a reasonable balance between the ability to achieve legitimate military objectives and the protection of civilians. Finally, it considers whether the interpretation results in a 'level legal playing field' for all parties to a conflict.

Introduction

Recent history has witnessed the 'civilianisation' of conflict. This is due to the movement of battlefields into civilian centres, as well as the introduction of large numbers of armed actors from the civilian population into armed conflict. These trends have emphasised the importance of having clear guidance to distinguish peaceful civilians from members of organised armed groups and civilians taking a direct part in hostilities. Without such clear distinctions, there is a greater risk that peaceful civilians may be erroneously targeted in situations of conflict.

Such clear distinctions are not possible without exploring the meaning of the phrase 'direct participation in hostilities'. This phrase is derived from similar language in Common Article 3 of the Geneva Conventions, but is used in many different international humanitarian law (IHL) instruments. In particular, Additional Protocols I and II suspend targeting immunity from civilians who directly participate in hostilities. (1) However, despite its great importance, the phrase is not defined in any of these instruments. There has also been a polarised academic debate over the meaning of the term, with commentators oscillating between narrow and liberal interpretations. (2)

The International Committee of the Red Cross's (ICRC) Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (3) (the Guidance) seeks to clarify some of these issues by offering a legal interpretation of the phrase. This article first summarises the background to, and essential elements of, this interpretation. It then critically evaluates the Guidance both in terms of its process and nature, as well as its substantive legal analysis of the phrase. This evaluation considers whether the ICRC's interpretation strikes a reasonable balance between the ability to achieve legitimate military objectives and the protection of civilians. It also considers whether the interpretation results in a 'level legal playing field' for all parties to a conflict.

I. The Guidance

A. Process, Scope and Status

The ICRC and the TMC Asser Institute initiated a process of clarification of the notion of 'direct participation in hostilities' in 2003. Five informal meetings were held up until 2008, each involving 40-50 legal experts from military, governmental, academic and nongovernmental circles, in their private capacities. (4) This led to a process of refinement, with the final Guidance being published by the ICRC in June 2009.

The Guidance examines the meaning of direct participation in hostilities in the context of both international and non-international armed conflicts. However, the Guidance does not intend to explore the application of the phrase to situations of detention in armed conflict, nor the use of the phrase outside IHL, such as in human rights law or jus ad bellum (the right towage war'). …