The Development of the Law of Armed Conflict

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Chapter 3 Contemporary Perspectives on Civilian Direct Participation in Hostilities

Introduction

Armed conflict, by its very nature, entails sacrifice, loss and misery.1 This results from the fact that the fundamental aim in armed conflict is to achieve a desired outcome by forceful means.2 This outcome is normally to overcome the adversary’s military potential or its will to continue with the hostilities. The Law of Armed Conflict (“LOAC”) thus generally dictates that all means and methods of warfare in armed conflict are permitted unless specifically prohibited by the law.3 LOAC,however, ultimately attempts to create a balance between military necessity and humanity, taking into account that the nature of armed conflict dictates that humanitarian considerations can never totally displace the prescriptions of military necessity.4 LOAC is, as a result, an ideal which is developed outside of armed conflict for application within armed conflict. Decisions in armed conflict are often instinctive, and time sensitive without the benefit of perfect intelligence.5 LOAC thus has to consider the realities of armed conflict and incorporate realistic alternatives to achieving military objectives, failing which the law will be ignored in practice. LOAC must, accordingly also be flexible to react to new realities in armed conflict, but any development thereof must be adequately reasoned and in keeping with the basic principles of LOAC. This argument excludes the claim that armed conflict is, by its very nature, a failure of the law, and thus that there is no law in armed conflict. I do not agree with this sentiment but LOAC must be very sensitive to the realities of war. This is to ensure that a best case scenario is achieved and that suffering of participants and non-participants is minimised. My evaluation of general direct participation in hostilities (“DPH”) and civilian direct participation in hostilities (“C-DPH”) will generally be based on the above reasoning.
States, in developing LOAC, essentially created a system of reciprocal entitlements between them during armed conflict.6 LOAC therefore functions as intended where it is grounded in an expression and an assumption of equality of the parties involved. This system, inter alia, addresses the protection of civilians, in various international instruments and by way of customary LOAC.7 This protection is now articulated in the Geneva Conventions of 19498 (“GC’s”) and clearly expressed in the two Additional Protocols of 1977 (“AP’s”).9 Civilians will, however, forfeit their immunity against intentional attack for as long as they directly participate in hostilities. The C-DPH exemption has been included in international instruments, the military manuals of several States,10 and has been referenced in “official statement[s] and reported practice”.11 C-DPH and general DPH is not often evaluated together. This creates the impression that the two concepts are similar. DPH, in my view, refers to the actions of combatants in international armed conflict (“IAC”) and possibly that of members of the regular armed forces and members of armed groups in non-international armed conflict (“NIAC”), what the International Committee of the Red Cross (“ICRC”) refers to as a continuous combat function (“CCF”).12 I will examine this distinction in more detail later in this chapter.
C-DPH is more contentious than DPH, since neither the GV’s nor the AP’s13 define what activities trigger the civilian exemption against intentional attack.14 An agreed upon definition of C-DPH has not developed, and the current practice is to assess the existenceb thereof on a case-by-case basis.15 The ICRC study into customary LOAC, also concluded that a precise definition of C-DPH does not exist in either State practice or international jurisprudence.16 This is possibly based on the fact that, arguably, the study attempts to inject too many considerations of humanity into LOAC but this is understandable given the ICRC’s mandate. It stands to reason that a universal definition of C-DPH would be advantageous. A definition of C-DPH could be developed by finding compromise language between the narrow and liberal interpretations of C-DPH. However, compromise generally leads to vague definitions and this is undesirable. This challenge has allowed some States to exploit the impasse by drastically changing the staffing of their armed forces and their targeting policies and methods. States should, however, interpret C-DPH “in good faith in accordance with the ordinary meaning to be given to its constituent terms in their context and in light of the object and purpose of LOAC”.17 Domestic and international courts have, as a result, been called upon to consider the meaning of C-DPH.
Any attempt to give meaning to C-DPH must be realistic taking into account the international instruments wherein it was created but all the other relevant perspectives and reasoning thereon must also be considered. It is thus submitted that it is beneficial to evaluate the ethical perspectives when attempting to establish the contemporary view of civilian protection and the circumstances when a civilian will forfeit that protection against intentional attack. In this regard the ethical and moral justification of civilian protection and loss thereof will be discussed. The legal perspectives on C-DPH will thereafter be evaluated to clarify the complex issues concerning the immunity of civilians. Relevant judicial reasoning and the Guidance on the Notion of Direct Participation in Hostilities by the ICRC18 (“the Guidance”), the expert comment thereon and State practice will also be considered. The United States (“US”) and Israel have not ratified the AP’s19 and the policies of these States will, without doubt, influence the debate over the meaning of C-DPH.
C-DPH is not defined in LOAC treaty law but the concept forms a part of the principle of distinction. The principle of distinction stipulates that civilians, as opposed to combatants, are, inter alia, protected from the effects of military operations “unless and for such time as they take a direct part in hostilities”.20 The rule that civilians, including children, are protected unless they participate directly in hostilities is also part of customary international law. Common Article 3 to the GC’s, in the English test, introduces the term ‘active participation’ in relation to NIAC. It states that “[p]ersons taking no active part in the hostilities…shall in all circumstances be treated humanely…”. The term ‘direct participation’ is later used with regards to the use of child soldiers in API, Article 77(2) and Article 38 of the UN Convention on the Rights of the Child.21 These provisions stipulate that States or other parties to IAC shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. APII, Article 13(3) uses the word ‘direct’. The ICRC Guidance finds that the GC’s and the AP’s use different words but that the phrase ‘participent directement’ is used consistently throughout the French texts of each treaty, which suggests a uniform meaning of the two terms in LOAC. The ICTR in the Akayesu Judgment held that ‘direct’ and ‘active’ “are so similar that, for the Chamber’s purposes, they may be treated as synonymous.”22 I do not agree with this interpretation as, in my view, ‘direct’ is a more restricted term than ‘active’. The International Institute of Humanitarian Law in San Remo’s Manual on the Law of Non-International Armed Conflict of 200623 does not interpret the terms as having a substantive distinction between them and only requires a “a sufficient causal relationship between the active participation and its immediate consequences”. The Manual, however, distinguishes between active or direct participation in hostilities and participation in the war effort. I believe that this is the preferred interpretation and in line with the dictates of interpretation of international instruments to give effect to the text.

Philosophical Arguments for the Justification of the Protection of Civilians

The intentional targeting of those persons not directly involved in an armed conflict is inherently wrong and it is morally intuitive that civilians should be protected in armed conflict. The ultimate aim of armed conflict is to overcome the enemy and this violence should, in a perfect world, be directed at those that pose a collective threat. Unfortunately and on closer scrutiny, this justification for the initial impression becomes more controversial. Throughout history, mention has been made of ‘innocence’ and ‘harmlessness’ as considerations for civilian immunity to attack.24 It is, however, submitted that civilian usefulness was also a major reason in determining civilian protection and this represented the self-interest of those who were responsible for policy decisions in armed conflict. The final consideration that influences civilian immunity from attack is the requirements of military necessity, which, at times outweighed moral and legal considerations, and civilian immunity was regularly and intentionally disregarded to achieve military objectives. There are several perspectives which are derived from the literature on war ethics and just war theory relevant to the protection of civilians. These include moral innocence, innocence as harmlessness, responsibility, rights and personal project.
The first notion regards civilians as innocent and therefore those who are not guilty should not be punished. Moral innocence does not, however, confer immunity for combatants from attack in armed conflict, just as much as being morally guilty does not deprive civilians of their protected status.25 The concept is thus not always useful to distinguish combatants from civilians as there may realistically be innocent combatants who were conscripted into military service. The distinction between being morally innocent and morally guilty does, as a result, not necessarily coincide with the distinction between civilians and combatants.26 Innocence can, however, also be interpreted as “currently harmless”27 and civilians are thus entitled to protection because they are harmless or helpless.28 Harmlessness is, however, not a valid concept to characterise all civilians and to justify their protection. Civilians are not necessarily harmless in armed conflict, the distinction between the harmless and harmful does not, again, as a result, coincide with the distinction between civilians and combatants.
A further perspective on civilian protection is whether a person is responsible for military action.29 Hartigan argues that civilian status is attained or lost by establishing whether a person is accountable for military actions.30 A civilian must thus not be responsible for the conduct of armed conflict, which creates an assumption of non-responsibility. This resonates well with the idea that combatants who participate directly in hostilities are, for their part, responsible for the conduct of armed conflict and they accordingly forfeit their protection from attack. Boothby claims, convincingly, that civilians have a responsibility to comply with their protected status, failing which they forfeit their protection “for such time as they take a direct part in hostilities”.31 Walzer, on the other hand, argues that combatants forfeit their rights to life as they acquire certain rights as combatants and as prisoners upon capture.32 Civilians, on the contrary, do not have these rights and should thus not be targeted during armed conflict.
Another argument for civilian protection in armed conflict could be made based on the idea that military activities confer meaning to the combatant’s life.33 Combatants may be said to have consented to participate in armed conflict and this creates a mutual right to take military action. It is accepted that opposing parties in armed conflict will target combatants and that their deaths in combat will incur no criminal sanctions for those responsible. This is termed as ‘the legitimate purpose’ of attacks in armed conflict.34 There is thus an internal connection between combatancy and the prospect of being killed in armed conflict, and this could be regarded as a meaningful and foreseeable death. This meaningfulness does not have equal value for a civilian in armed conflict.35 Civilians, not taking a direct part in hostilities, do not see the prospect of death in armed conflict as part of their personal project. Some civilians may, however, directly partake in hostilities, and may even foresee death in armed conflict as a real possibility. This reasoning is also flawed and does not account for the formal distinction between civilians and combatants exactly because some civilians will commit hostile acts in armed conflict.
It is submitted that the real motive for a general rule of civilian immunity results from the concern of Parties to armed conflict for their own civilians and the harm that will result from direct attacks upon them. Civilians are, in theory, vulnerable and it thus becomes rational to agree that both sides grant immunity to the unarmed citizens of the other.36 This agreement is thus based on the mutuality of the vulnerability of the civilians on both sides in a conflict. Civilian status and their protection from attack is a complex ethical issue. The challenge is that ethical arguments do not account for the so-called marginal cases where civilians do directly participate in armed conflict or where civilians indirectly make a real contribution to the war effort without actually being involved in combat activities.

Summary 
Declaration of Originality 
Plagiarism Policy Agreement 
Acknowledgements 
Table of Contents 
Abbreviations 
Use of Terms 
Chapter 1 – Introduction and General Background of the Study
1. General Introduction
2. The Status of the Law of Armed Conflict
3. Direct Participation in Hostilities
4. Purpose of the Research
5. Problem Statement
6. Research Objectives
7. Primary Research Question
8. Significance of the Study
9. Scope of the Study
10. Interpretation of LOAC Rules
11. The Status of the Knowledge on Direct Participation in Hostilities
12. Research Design and Methodology
13. Research Inquiry Strategy
14. Organisation of the Study and Chapter Overview
15. The Reality of Urban Asymmetric Armed Conflict
Chapter 2 – The History and Development of Direct Participation in Hostilities
1. Introduction
2. International Law and Statehood
3. The Development of the Law of Armed Conflict
3.1 The Law of Armed Conflict Prior to the Lieber Code of 1863
3.2 The Lieber Code – The St Petersburg Declaration – The Brussels Declaration
3.3 The Brussels Declaration of 1874 – The Oxford Manual of 1880
3.4 The Oxford Manual of 1880 – The Hague Peace Conference of 1899
3.5 The Hague Peace Conference of 1899 – The Hague Peace Conference of 1907
3.6 The Hague Peace Conference of 1907 – The Geneva Conventions of 1949
3.7 The Geneva Conventions of 1949 – The Additional Protocols I and II of 1977
3.8 Relevant Events after 1977
4. Summary
Chapter 3 – Contemporary Perspectives on Civilian Direct Participation in Hostilities
1. Introduction
2. Philosophical Arguments for the Justification of the Protection of Civilians
3. Juridical Reasoning and State Practice on the Concept of DPH
4. Overview of the ICRC’s Expert Process
5. Summary
Chapter 4 – The Nature of Armed Conflict and Its Participants
1. Introduction
2. The Nature of Armed Conflict
3. The Function of Status in the Law of Armed Conflict
4. The Status of Armed Conflicts as International or Non-International in Character
5. The Character of Organised Armed Groups
6. Intentional Targeting of Persons in Armed Conflict Based on their Connection to a Group
7. The Law of Targeting, Distinction, Military Necessity, Humanity and Military Objectives
8. The Status of Participants in Armed Conflicts based on their Connection to Groups
9 Dissident Armed Forces
10 ‘Combatant’ in Non-International Armed Conflict
11. Summary
Chapter 5 – Direct Participation in Hostilities in International Armed Conflict and Non-International Armed Conflict
1. Introduction
2. Background to Direct Participation in Hostilities
3. Just War Theory
4. The Legal Basis of Direct Participation in Hostilities
5. Example of the Practical Difficulties of Direct Participation in Hostilities
6. Civilian and Civilian Population
7. Narrow and Broad Interpretation of DPH
8. The ICRC Interpretation of Direct Participation in Hostilities
9. Direct Participation in Hostilities in International Armed Conflict
10. Direct Participation in Hostilities in Non-International Armed Conflict
11. ‘Hostile Act’ in International and Non-International Armed Conflict
12. ‘For Such Time’ in International and Non-International Armed Conflict
13. Status and Rights of Civilians Directly Participating in International Armed Conflict
14. Status and Rights of Civilians Directly Participating in Non-International Armed Conflict
15. The Direct Participation Exception to Civilian Immunity and the Nature of Armed Conflict
16. Obligations and Risk in Armed Conflict
17. State Practice
18. Specific Issues: Cyber Warfare
19. Summary
Chapter 6 – Direct Participation in Hostilities and the Application of International Human Rights Law during Armed Conflict
1. Introduction
2. The Origins of the Law of Armed Conflict and International Human Rights Law
3. The Progressive Development of IHRL by the United Nations
4. The Nature of Classical and New Armed Conflicts
5. International Human Rights Law and the Law of Armed Conflict
6. The Motivation for Expanding Human Rights Law into Armed Conflict
7. The Motivation against Expanding Human Right Law into Armed Conflict
8. Lex Specialis in Armed Conflict
9. The Right to Life in Armed Conflict
10. Intentional Targeting of the Adversary in Armed Conflict
11. State Practice
12. Civilian Direct Participation in Hostilities and International Human Rights Law
13. Armed Groups and the Law of Armed Conflict
14. Specific Provisions in Treaty Law
15. The Determination of the Geographical and Temporal Scope of Armed Conflict
16. Summary
Chapter 7 – The Innocent Civilian, the Moral Soldier and the Unlawful Fighter – An Evaluation of the Direct Participation in Hostilities Dilemma
1. Introduction
2. Treaty Interpretation
3 Narrow and Broad Interpretation of Civilian Direct Participation in Hostilities
4 The Interpretation of Direct Participation in Hostilities by Legal Experts
5. Evaluation of Civilian Direct Participation in Hostilities
6. Conclusion
Bibliography
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