Fight, Forge, and Fund: Three Select Issues on Targeting of Persons

By Shamir-Borer, Eran | Vanderbilt Journal of Transnational Law, May 2018 | Go to article overview

Fight, Forge, and Fund: Three Select Issues on Targeting of Persons


Shamir-Borer, Eran, Vanderbilt Journal of Transnational Law


TABLE OF CONTENTS    I.    INTRODUCTION                                        959  II.    "FUNCTIONAL MEMBERSHIP" IN THE ARMED FORCES         961         OF A PARTY III.    CIVILIAN SCIENTISTS AND WEAPON SPECIALISTS          967         AND DIRECT PARTICIPATION IN HOSTILITIES  IV.    CERTAIN FINANCIAL FUNCTIONS AND DIRECT              971         PARTICIPATION IN HOSTILITIES   V.    CONCLUDING REMARKS                                  977 

I. INTRODUCTION

Armed confrontations between states and non-state actors have received greater profile in recent years, regenerating debates over who may be targeted during hostilities. Questions relating to membership in the armed forces of non-state actors and the participation of civilians in hostilities have been given new life as the interpretation and application of the law of armed conflict (LOAC) are reassessed in light of the realities of conflicts such as those in Syria, Iraq, Lebanon, Yemen, and Gaza.

The twenty-first century has already produced a significant volume of perspectives on these questions. National and international courts have considered them in several cases, with the 2006 Israeli Supreme Court case Public Committee Against Torture in Israel v. Government of Israel (Targeted Killings) capturing a particularly prominent place in this discussion. (1) Academic publications have likewise dealt with this issue, many of them following the discussion encouraged by the International Committee of the Red Cross (ICRC) Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (ICRC Interpretive Guidance). (2) Of most importance, however, are the views expressed by states in various publications, usually in their military manuals: Canada (2001), (3) the United Kingdom (2004), (4) Australia (2006), (5) Mexico (2009), (6) Colombia (2009), (7) France (2012), (8) Germany (2013), (9) Norway (2013), (10) Israel (2015), (11) and the United States (2015). (12)

In this brief Article, I shall focus on a few specific issues that, in my mind, have particular relevance for contemporary and future armed conflicts, and with respect to which the debate is still ongoing: (a) the notion of "functional membership" in the armed forces of a non-state actor; (b) whether civilians employed in research and development projects qualify as direct participants in hostilities; and (c) whether civilians engaged in certain financial activities qualify as direct participants in hostilities.

II. "FUNCTIONAL MEMBERSHIP" IN THE ARMED FORCES OF A PARTY

Hostilities are normally waged between the armed forces of the parties to an armed conflict, whether they are states or non-state actors (in the latter case, the armed forces are often called "organized armed groups"). (13)

Under the traditional rules of LOAC, members of armed forces are lawful targets of attack. (14) When an armed conflict occurs between states, determining membership is regularly based on the premise that individuals in a state's armed forces wear uniforms and display fixed emblems. Accordingly, when a determination establishes that an individual is wearing a military's uniform, or that the individual signed up for the military, that individual may be targeted without further investigation. (15) In such a scenario, it does not even matter what the individual's exact role in the armed forces is, since there is no requirement for the individual to actually engage in combat to be a lawful object of attack. (16)

Now, the ICRC Interpretive Guidance rejects the possibility of assessing targetability on the basis of formal membership in non-state armed forces on the assumption that such membership "is rarely formalized through an act of integration other than taking up a certain function for the group; and it is not consistently expressed through uniforms, fixed distinctive signs, or identification cards." (17) The ICRC goes even further by arguing:

In view of the wide variety of cultural, political, and military contexts in which organized armed groups operate, there may be various degrees of affiliation with such groups that do not necessarily amount to "membership" within the meaning of IHL. … 

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