ATHA Specialized Training on International Humanitarian Law Direct Participation in Hostilities ATHA Specialized Training on International Humanitarian Law May 31, 2010 Stockholm, Sweden

Direct Participation of Civilians in Hostilities Civilian v. Combatant Civilians defined in contradistinction to combatants Civilians and those hors de combat are protected against direct attack Article 50, AP I 1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian. Article 51(3), AP I Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.

Three Cumulative Elements (ICRC) 1. Threshold of harm Act in question must be likely to: Adversely affect the military operations or military capacity of a party to the conflict; or Inflict death, or destruction of persons or objects protected against direct attack 2. Direct causation Must be direct causal link between the resulting harm and: Specific act; or Military operation of which act constitutes an integral part 3. Belligerent nexus Act in question must be specifically designed to support one party to conflict against another party

Beginning, End, and Consequences Beginning and End A specific act: Concrete preparatory measures Deployment to location and execution of act Return from location following execution of act Consequences of DPIH If (re)gained protections against direct attacks: Can no longer be attacked Remains subject to violations of domestic and international law which they may have committed during earlier direct participation DPIH itself is not a violation of IHL, though it may be a violation of domestic law

Two Different Approaches 1. Functional membership approach Civilians v. combatants Members of armed forces Look to domestic law Members of organized armed groups/organizations Look to whether there is an assumption of a continuous combat function for the group 2. Temporal scope approach Members of organized armed groups lose protection for duration of membership Non-members of organized armed groups lose protection against direct attack only for duration of each specific DPIH act

ICRC Interpretive Guidance (2009) 10 Recommendations The concept of civilian in international armed conflict The concept of civilian in non-international armed conflict Private contractors and civilian employees Direct participation in hostilities as a specific act Constitutive elements of direct participation in hostilities Beginning and end of direct participation of hostilities Temporal scope of the loss of protection Precautions and presumptions in situations of doubt Restraints on the use of force in direct attack Consequences of regaining civilian protection

Three Difficult Cases 1. Inter-civilian violence Should amount to DPIH only where it causes either military harm or death, injury, or destruction of person/objects not “in the hands” of the attacker and has a belligerent nexus 2. Voluntary human shields Should amount to DPIH only where it constitutes a physical obstacle to military operations and thus directly cases military harm Otherwise: part of proportionality assessment 3. Hostage-taking Should amount to DPIH only where it directly causes military harm Otherwise: exclusive law enforcement issue

Not DPIH “Levée en Masse’’ Inhabitants on the approach of the enemy spontaneously take up arms Carry arms openly Respect IHL If captured will be treated as POW “Civilians who accompany armed forces’’ Not members of the armed forces For instance, GC III Art. 4: War correspondents, supply contractors, members of services responsible for the welfare of the armed forces