Challenges to IHL

7/23/2019 Challenges to IHL

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Spotlight On Issues Of Contemporary Concern In

International Humanitarian Law And International Criminal Law

THE CHALLENGES TO INTERNATIONAL HUMANITARIAN LAW

AND THE PRINCIPLES OF DISTINCTION AND PROTECTION

FROM THE INCREASED PARTICIPATION OF CIVILIANS IN

HOSTILITIES

Avril McDonald1

1. INTO!"CTION

#. TH$ %INCI%L$S O& !ISTINCTION AN! %OT$CTION AN!

CONT$'%OA( CHALL$N)$S TO TH$'

2.1 Defining civilians and civilian status

2.2 Threats to the principle of distinction

2.3.1 Contemporary trends in armed conflicts

2.3.2 The civilisation of the military#.*.#.1 The pri+ati,ation of formerly military functions

2.3.3 Terrorism and counter-terrorism

*. TH$ CONC$%T O& !I$CT %ATICI%ATION IN HOSTILITI$S

*.1 -hat is meant y the term /hostilities0

*.# -hat is meant y the term /direct participation in hostilities0

3.2.1 Which types of activities constitute direct participation?

*.#.1.1 To what e2tent is the intention of the participant or the results achie+ed

rele+ant

3.2.2. Which types of activities do not constitute direct participation?

3.2.3 Grey areas

3.2.4 The temporal element3.2.5 n order to directly participate in hostilities! must there "e a ne#us $ith the

armed conflict?

3.2.% n order to directly participate! does the civilian have to "e a mem"er of or

have a lin& $ith a party to the conflict?

3. TH$ CONS$4"$NC$S O& "NLA-&"L %ATICI%ATION

5. CONCL"SIONS

1. INTRODUCTION

Most of the casualties of modern conicts, as is well known, aremainly civilians and not soldiers. When these casualties arereported, the word civilian is often prefaced by the adjectiveinnocent, with the suestion bein that there are other civilianswho are not so innocent, and whose deaths or injuries are not asunfortunate and hapha!ard as miht at "rst appear.

1#his is a backround workin paper for a presentation by the author in $pril %&&'at the (niversity of #eheran at a )ound #able co*hosted by the (niversity of#eheran and the +arvard (niversitys +umanitarian aw )esearch -nitiative on the-nterplay etween -nternational +umanitarian aw and -nternational +uman

)ihts aw. #he author thanks the orani!ers of the event, in particular,/rofessors 0asrin Mousaa and 2jamchid Momta! of the (niversity of #eheran andMr 3laude auderlaine and Ms Mararet 4owalskyof +arvard (niversity.

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$s a eneral principle, civilians are entitled to protected statusunder international humanitarian law and may not be attacked.Moreover, the reatest of care must be e5ercised in conductinmilitary operations in order to minimi!e civilian casualties. +owever,the laws of war reconi!e that some civilians are more innocent anddeservin of protection than others, and that those who take adirect part in hostilities durin an armed conict forfeit theirprotected status and may be attacked. $rticle 61789 of the 1:;; -n order to ensurerespect for and protection of the civilian population and civilian objects, the/arties to the conict shall at all times distinuish between the civilian populationand combatants and between civilian objects and military objectives andaccordinly shall direct their operations only aainst military objectives.*

-t was considered that to reconi!e combatant status for rebels would be torant them leitimacy, a bride too far for most states represented at the2iplomatic 3onference.

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from members of a states armed forces, all persons takin up armsdurin a non*international armed conict are leally civilians andnot combatants. =iven that the vast majority of conicts around theworld today are non*international in character, this means that themajority of persons enaed in "htin them 7or at least those"htin as part of armed opposition roups aainst states9 have noprivileed combatant status under international humanitarian lawand are technically unlawful or unprivileed'combatants, that is,they are civilians who are unlawfully enaed in combat and whomay be punished for that fact alone by the national authorities.6$sthere is no leal distinction between combatants and civilians durina non*international armed conict, ful"lment of the fundamentalrule of protection of enuine civilians durin a non*internationalarmed conict depends on an understandin of what actions triera loss of civilians protected status and e5pose them to leitimate

attack.

Bven in an international armed conict distinuishin betweencombatants and enuine civilians is in reality not always easy orclear*cut. $s states armed forces come to rely on civilians toperform an increasin number of roles formerly the preserve ofmilitary personnel, the odds of a civilian bein involved in conict,both directly and indirectly, have dramatically increased. 2ecisivemay be not the fact of wearin a uniform and carryin arms7althouh in many cases, civilians do9 but the nature and deree ofan individual civilians involvement in hostilities.

-n relation to both non*international and international armedconicts, therefore, as well as other types of conict whichinternational humanitarian law does not yet reconi!e, it is essentialfor the sake of upholdin the principle of protection of the so*calledinnocent civilian population to identify criteria to assist indeterminin when an individual civilian crosses the rubicon and

3#hese are terms of art rather than terms with a precise and conventionallyde"ned leal meanin. Cee ).). a5ter, Co*called (nprivileed ellierency>Cpies, =uerrilla, and Caboteurs, %A BYIL71:619 pp. 8%8 at 8%A where he states

that unprivileed bellierents are> $ cateory of persons who are not entitled totreatment either as peaceful civilians or as prisoners of war by reason of the factthat they have enaed in hostile conduct without meetin the ?uali"cationsestablished by $rticle ' of the =eneva /risoners of War 3onvention of 1:': . . .$ccordin to Watkins> $n unprivileed bellierent is a civilian 7ie. $ person nothavin combatant status9 who takes part in hostilities thereby committin abellierent act and havin neither the protection from attack associated withcivilian status nor ?ualifyin for the privilee of bein a prisoner of war. 3olonel4.W. Watkin, 3ombatants, (nprivileed ellierents and 3onicts in the %1st

3entury, ackround /aper prepared for the -nformal +ih*evel B5pert Meetinon the )eaDrmation and 2evelopment of -nternational +umanitarian aw,3ambride, Eune %;*%:, %&&%, pp. '*6.5 $lthouh $rticle F769 of /rotocol -- ures states at the end of the non*

international armed conict to rant the broadest possible amnesty to personswho have merely participated in the armed conict 7that is, e5cludin those whohave committed crimes related to the conict, namely, war crimes9.

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becomes a de facto 7if not a de jure9 combatant, with all theconse?uences that implies.

#he e5ercise is comple5 and there are many uncertainties. -t isbeyond the scope of this workin paper to attempt anycomprehensive analysis of the problem or to propose consideredsolutionsG that will re?uire a far more in depth analysis of therelevant leal issues and study of the roles that civilians play incontemporary conicts.F#his paper will con"ne itself to attemptinto identify and briey comment on some of the leal problemsarisin out of the phenomenon of increased civilian participation inhostilities.

/art 8 of the paper will therefore e5plore the followin main leal?uestions> What is meant by the term direct participation in

hostilitiesH Which types of activities constitute direct participation,and which types of activities do notH Which are some of the rayareasH -s there a re?uired mental element for direct participationHWhat is the temporal duration of direct participation in hostilities7i.e., the time durin which unlawfully participatin civilians may beattacked9H What, if any, link must there be between a civilianparticipant and both an armed conict and a party to the conictH

/art ' will then e5amine some of the conse?uences of directparticipation. What if any residual protection do civilians who take adirect part in hostilities enjoy under international humanitarian law

and international human rihts law when they lose their protectedstatusH What is the status of civilians who unlawfully participate inhostilities upon captureH #o what e5tent are civilians who directlyparticipate in hostilities criminally liable, includin for war crimes,under international humanitarian lawH


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has stated> Military commanders are obliated to distinuishbetween civilian objects and military objectives and to direct theiroperations aainst military objectives.;

#he principle of distinction was e5pressed as early as 1AFA in the Ct./etersbur 2eclaration in the followin words> #hat the onlyleitimate object which Ctates should endeavour to accomplishdurin war is to weaken the military forces of the enemy.A-n otherwords, no military necessity justi"es direct attacks on civilians orcivilian objects. )espect for the principle is what makes it possiblefor humanitarian law to ful"l its aim of protectin the civilianpopulation from the conse?uences of armed conict. $ccordin toWatkins> #he ability of combatants to plan and conduct theiroperations and defend the state, as well as the capacity of a state orthe international community to hold them accountable for failure, is

sini"cantly dependant upon the clarity and relevance of thedistinction principle.:

Ceveral key provisions of #he +aue )eulations anne5ed to the1:&;


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$rticle 88 concernin collective punishment and reprisals aainstprotected persons and their property.1%

$dditional /rotocol - auments these provisions of the =eneva3onventions, without replacin them.18 #he additional protectionsare set out in /art -J K 3ivilian /opulation K of the $dditional/rotocol. $rticle 'A of $dditional /rotocol - K asic )ule K has alreadybeen alluded to.1' -t is supplemented by the very detailed $rticle61,16which sets out speci"c rules concernin the protection of thecivilian population aainst military operationsG $rticle 6%,1F whichaddresses eneral protection of civilian objectsG $rticle 68, which

humanitarian duties, acts harmful to the enemy. /rotection may, however, ceaseonly after due warnin has been iven, namin, in all appropriate cases, areasonable time limit, and after such warnin has remained unheeded.1# $rticle 88 of the 0o protected person may be

punished for an oence he or she has not personally committed. 3ollectivepenalties and likewise all measures of intimidation or of terrorism are prohibited./illae is prohibited.)eprisals aainst protected persons and their property are prohibited.1*$rticle ':7'9 of $dditional /rotocol - provides> #he provisions of this Cection Li.e.,Cection -, =eneral /rotection aainst the Bects of +ostilities, of /art -J of the$dditional /rotocol are additional to the rules concernin humanitarian protectioncontained in the 1. #he civilian population and individual civilians shall enjoy

eneral protection aainst daners arisin from military operations. #o ive eectto this protection, the followin rules, which are additional to other applicablerules of international law, shall be observed in all circumstances.%. #he civilian population as such, as well as individual civilians, shall not be theobject of attack. $cts or threats of violence the primary purpose of which is tospread terror amon the civilian population are prohibited.8. 3ivilians shall enjoy the protection aorded by this Cection, unless and for suchtime as they take a direct part in hostilities.'. -ndiscriminate attacks are prohibited. -ndiscriminate attacks are>

7a9 #hose which are not directed at a speci"c military objectiveG7b9 #hose which employ a method or means of combat which cannot be

directed at a speci"c military objectiveG or

7c9 #hose which employ a method or means of combat the eects of whichcannot be limited as re?uired by this /rotocolG and conse?uently, in eachsuch case, are of a nature to strike military objectives and civilians orcivilian objects without distinction.

6. $mon others, the followin types of attacks are to be considered asindiscriminate>

7a9 $n attack by bombardment by any methods or means which treats as asinle military objective a number of clearly separated and distinct militaryobjectives located in a city, town, villae or other area containin a similarconcentration of civilians or civilian objectsG and

7b9 $n attack which may be e5pected to cause incidental loss of civilian life,injury to civilians, damae to civilian objects, or a combination thereof,which would be e5cessive in relation to the concrete and direct military

advantae anticipated.F. $ttacks aainst the civilian population or civilians by way of reprisals areprohibited.

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protects cultural and reliious propertyG $rticle 6', which addressesprotection of objects indispensable to the survival of the civilianpopulationG $rticle 66, which addresses protection of the naturalenvironmentG and $rticle 6F, which concerns protection of works andinstallations concernin danerous forces. Ither articles in /art -Jfocus on other ways to increase the protection of the civilianpopulation, by, for e5ample, the obliation to take precautions inattacks 7$rticle 6;9 and aainst the eects of attacks 7$rticle 6A9.$rticles 6: and F& concern localities and !ones under specialprotection.

Cupport for the principle of distinction has also come from othersources. )esolution NNJ--- adopted by the %&th -nternational3onference of the )ed 3ross and )ed 3rescent, held in 1:F6 inJienna, declared that all overnments and other authorities

responsible for action in armed conict should,inter alia, conform tothe principle that distinction must be made at all times betweenpersons takin part in the hostilities and members of the civilianpopulation to the eect that the latter be spared as much aspossible. #he -nternational 3ourt of Eustice, in its Nuclear WeaponsAdisor! "pinion, stated that the principle of distinction betweencombatants and non*combatants is one of the cardinal principles ofinternational humanitarian law, and that these fundamental rulesare to be observed by all Ctates whether or not they have rati"edthe conventions that contain them, because they constituteintransressible principles of international customary law.1;

;. #he presence or movements of the civilian population or individual civiliansshall not be used to render certain points or areas immune from militaryoperations, in particular in attempts to shield military objectives from attacks or toshield, favour or impede military operations. #he /arties to the conict shall notdirect the movement of the civilian population or individual civilians in order toattempt to shield military objectives from attacks or to shield military operations.A. $ny violation of these prohibitions shall not release the /arties to the conictfrom their leal obliations with respect to the civilian population and civilians,includin the obliation to take the precautionary measures provided for in $rticle6;.16 $rticle 6% provides> 1. 3ivilian objects shall not be the object of attack or

of reprisals. 3ivilian objects are all objects which are not militaryobjectives as de"ned in pararaph %.

%. $ttacks shall be limited strictly to military objectives. -n so far as objects areconcerned, military objectives are limited to those objects which by their nature,location, purpose or use make an eective contribution to military action andwhose total or partial destruction, capture or neutrali!ation, in the circumstancesrulin at the time, oers a de"nite military advantae.8. -n case of doubt whether an object which is normally dedicated to civilianpurposes, such as a place of worship, a house or other dwellin or a school, isbein used to make an eective contribution to military action, it shall be

presumed not to be so used.17 Le#alit! of the $hreat or %se of Nuclear Weapons, $dvisory Ipinion of A Euly1::F, para. ;:.

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2.1 Defining civilians and civilian status

While the


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of war 7/IW9 status upon capture. #hus, civilian is a residualcateory> whoever is not a combatant shall be deemed to be acivilian. ut, -n case of doubt whether a person is a civilian, thatperson shall be considered to be a civilian. 7$rticle 6&719 #hecivilian population comprises all persons who are civilians 7$rticle6&7%99. Cini"cantly from the perspective of protection of the civilianpopulation> #he presence within the civilian population ofindividuals who do not come within the de"nition of civilians doesnot deprive the population of its civilian character. 7$rticle 6&789

Ither sources similarly adopt a neative approach to de"nincivilians. #he (nited Ctates $nnotated Cupplement to #he3ommanders +andbook on the aw of 0aval Iperations, fore5ample, de"nes non*combatants as individuals who do not form apart of the armed forces and who otherwise refrain from the

commission or direct support of hostile acts.%&

Watkins notes that

that term also includes a more diverse mi5 of persons such asmedical oDcers, corpsmen, chaplains, contractors, civilian warcorrespondents and armed forces personnel who are unable toenae in combat because of wounds, sickness, shipwreck orcapture 7ie. /IWs9. +ere, Pnon*combatantQ is used in theconte5t of those persons, civilian and military, who should notbe tareted and not in the sense of the combatantRciviliandistinction.%1

#he 1uid pro 1uo for the special protected status enjoyed bycivilians is that they are strictly prohibited from participatin inhostilities@e5cept in the e5ceptional case where they areparticipatin in a leee en masse, in which case they shall berearded as bellierents provided that they carry their arms openlyand respect the laws and customs of war%%@and if they do, they losethe protections of the


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even if they de facto ful"l some of the conditions of combatancy,such as carryin their arms openly and respectin the laws andcustoms of war. #hey are what has become known collo?uially asunlawful combatants or unlawful bellierents, that is, they remaincivilians, albeit ones who are unlawfully participatin in hostilities.

-nternational humanitarian law applicable in non*international armedconicts does not e5plicitly distinuish between combatants andcivilians 7as it does not reconi!e combatant status9 yet it doesreconi!e that persons who do not take part in hostilities retain theirprotected status as civilians 7and implies that those who do, lose it9.(nder $rticle '7--9 of $dditional /rotocol -->

$ll persons who do not take a direct part or who have ceasedto take part in hostilities, whether or not their liberty has been

restricted, are entitled to respect for their person, honour andconvictions and reliious practices. #hey shall in allcircumstances be treated humanely, without any adversedistinction. -t is prohibited to order that there are no survivors.

B?ually, $dditional /rotocol -- provides that those civilians who dounlawfully participate in hostilities shall lose their protected statusas civilians. $rticle 18789 provides> 3ivilians shall enjoy theprotection aorded by this /art, unless and for such time as theytake a direct part in hostilities.

2.2 Threats to the principle of distinction

#he principle of distinction is a corollary of the principle ofprotection> without the former, the latter is impossible to uphold.+owever, the paradim of lawful combatants on the one side,enaed in "htin, and innocent civilians on the other side, notinvolved in and protected from hostilities, hardly reects the realityof conict today, if it ever did. #he sanctity of the principles ofdistinction and protection is threatened by a number ofcontemporary phenomena. Ceveral particularly sini"cant ones

deserve mention.

2.3.1 Contemporary trends in armed conflicts

$s noted above, the distinction between combatants and civilians isrooted in international humanitarian law applicable in internationalarmed conicts, conicts which comprise a very small minority ofcontemporary armed conicts.


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international armed conicts fouht between various armed roupson the territory of more than one state, or the challene tointernational peace and security presented by locali!ed ortransnational terrorism. -t is unclear whether it reconi!es thepossibility of an armed conict that is fouht by an armed oppositionroup aainst a state not of its nationality, or various other possiblepermutations of conict, which are no loner merely theoreticalpossibilities.

3lausewit!s trinitarian model of war, as a battle fouht betweensoverein states, which are composed of a overnment, an armyand the people, seems increasinly anachronistic in a world in whichmany conicts involve clashes between opposin ethnic, racial orreliious roups within one or more states, or where the oal of the"htin does not conform to the 3lausewit!ian view of military

stratey as the continuation or advancement of 7the states9political ends%8but may be driven by rivalry amonst roups forcontrol over scarce resources, or by reliious or ethnic hatred orcompetition, etc.%' -n such conicts, the ambition may not be aresolution of and end to the conict in ones favour but thecontinuation of instability and lawlessness in order to promote aclimate which allows business interests to thrive and criminality toourish. Cimmerin, low*level conicts in some states and reionscan provide a cover for lucrative orani!ed crime, includintraDckin in drus, arms and people.%6

-n some countries, the overnment has lost the monopoly onviolence. $rmed opposition roups may pose a threat to statesecurity, and where a state does not e5ercise full control over itsterritory, warlords or criminal syndicates often yield de factoauthority. Many states today suest that their security is evenmore threatened by terrorists, in particular the possibility ofterrorists yieldin weapons of mass destruction or so*called dirtybombs, than by other states, althouh the e5aeration of thethreat for political ends cannot be discounted.

#here is also the eect of shiftin alleiances and identities toconsider> civilians within a state may have transferred their primaryalleiance from their state of nationality or residence to a reliion orto a non*state actor. #his may in some states be e5acerbated by the

#*#he views of the /russian military strateist, 4arl von 3lausewit!, are set out inhis classical work, "n Warfare 7ondon, /enuin 3lassics 1:A%9. +e is mostfamous for his view that war is the continuation of politics by other means.#3


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fact that the relationship between states and their citi!ens is inreality often far removed from the Weberian ideal.

2.3.2 The civilisation of the military

#he past decades have seen the increasin civiliani!ation of themilitary in many states, but especially in the (nited Ctates, home tothe worlds most powerful military, and the involvement of civiliansin many former military tasks.%F3ivilians are increasinly recruitedto desin, manufacture, maintain and operate several weaponssystems and are involved in some tasks that could potentially beconsidered as direct participation in hostilities when carried out inthe conte5t of an armed conict. #his is con"rmed by the (C2epartment of the $rmy, which stated that>

+istorically, civilians have played an important role in theconduct of (.C. military operations. More recently, $rmycivilians have established themselves as an interal and vitalpart of $mericas $rmy team. With distinction, they performcritical duties in virtually every functional facet of 3ombatCupport and 3ombat Cervice Cupport, both at home andabroad. Cervin beside their deployed uniformed compatriotsthey also provide the critical skills necessary to assure theavailability of essential combat systems and weaponryG therebyma5imi!in the "htin capability of the combat soldier andsuccess of the $rmy wartime and emerency missions.%;

$ sini"cant factor drivin civiliani!ation is cost. -t is considered thatthe transfer of functions performed by military personnel to civilservice personnel is one way to save costs while aectin forceeectiveness minimally.%A )esearch carried out by the )$023orporation found that civili!ation can produce cost savins undermany, but not all, circumstances.%: 3ivilians come without theirfamilies and the perceived need for the same support structures asmilitary personnel. 3ivilians receive less investment in trainin andeducation. -n particular, they can be employed on e5ible terms, as

the need arises. 2ownsi!in or upsi!in of civilian employees ismuch easier than of military employees. If course, the lack ofinvestment in civilian personnel, includin in their education andtrainin, could also have neative conse?uences.

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#echnoloy is another factor drivin civiliani!ation. $dvances inweapons technoloy outpace the ability of the military to train itsown. Come weapons systems come as packae deals, whichinclude maintenance, trainin and even operation by civilians.8&$ssome states, in particular the (C$, come to rely increasinly onhih*tech and computer*driven warfare, reliance on civilian e5pertswill only increase.

2ue to the technoloical advantae it enjoys in conductin war, the(C currently has the lu5ury of bein able to strike tarets thousandsof miles away, but yet enjoy relative immunity from counter*attack.#hus, the conse?uences that its widespread and rowin civilisationof the military has for the concept of direct participation have notyet become fully manifest> the chickens have not yet come home toroost. #he civilians who maintain and operate its weapons systems

that are used in combat in -ra?, for e5ample, and who may belocated a continent away from the tarets that they strike probablydo not consider that they are directly participatin in hostilities in-ra?, althouh probably they are, and they remain for the momentimmune from attack iven the limited capabilities of -ra? or thevarious resistance roups which the coalition is "htin. ut had-ra? been able to launch lon*rane missiles at such tarets in the(C, it would be diDcult to arue that it was doin anythin otherthan strikin leitimate military tarets.


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raise the ?uestion of their direct participation in hostilities.$ccordin to )icks>


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terrorists demonstrate a lack of precision and precaution in theirtactics or a cavalier attitude to civilian safety, often their verypurpose and aim is to attack civilians and inict as much damae,suerin and fear as possible. #errorists who attack civilians withinthe conte5t of an actual armed conict are civilians unlawfullyparticipatin in hostilities, if they have a ne5us to the armedconict, and terrorism constitutes a war crime.86

What is prohibited durin warfare in a fortiori prohibited durinpeacetime. #errorist attacks aainst civilians in peacetime, while notviolations of international humanitarian law 7which does not apply,as the conditions precedent for its application do not e5ist9 areprohibited under international criminal law and the national criminallaw of every state.

While nothin justi"es callous terrorist attacks on civilians,unfortunately sometimes counter*terrorist reactions of states aree?ually blunt. Ctates reactin to terrorist violence often overreactand demonstrate a less than e5emplary reard for the principles ofdistinction and protection of the innocent civilian population.

#he noticeable tendency by some states durin the war on terror,particularly the (C$, to apply conduct of hostilities rules to attacksaainst terrorists undertaken outside the conte5t of an armedconict also challenes the principle of distinction. /eacetimesecurity operations are becomin increasinly militaristic, and statesare justifyin resort to lethal force aainst civilians, for e5ample, onthe rounds that the latter are directly participatin in terrorism.-ncreasinly, states are assertin that, when faced with anunconventional and ruthless enemy, such as terrorists, newmethods of policin and combat and an unconventional militaryresponse may be re?uired. -n the new security environment, thelines between war and peace are blurred, and civilians are becomintareted in operations which are military in all but name. y thesame loic, the persons involved in "htin the war on terror, whoare mainly civilians, could be considered to be directly participatin

in these hostilities. T $cts or threats of violence theprimary purpose of which is to spread terror amon the civilian population are

prohibited. $rticle '7%97d9 of $dditional /rotocol -- prohibits Lacts of terrorism.*6Cee C.M. +ersh, Manhunt> #he ush administrations new stratey in the waraainst terrorism, $he New Yorker, %8 and 8& 2ecember %&&%.

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hostilities, and this area of the law merits close e5amination. #heneed for clarity is obvious, iven the serious conse?uences thatresult from unlawful participation and the daner to innocentcivilians posed by unlawful combatants. 0ot only does the unlawfulparticipant jeopardise his or her own security and safety but he orshe potentially e5poses other civilians to daner, directly andthrouh contributin to a weakenin of the principle of distinction.

(.1 )hat is *eant +, the ter* -hostilities/

+ostilities has a narrower meanin than armed conict. $ccordin tothe Dictionar! of the International Law of Armed 2on7ict, hostilitiesmeans an act of violence by a bellierent aainst an enemy in orderto put an end to his resistance and impose obedience.8;0eedless tosay, the hostilities must occur within the conte5t of an armed

conict, whether international and non*international. #he termarmed conict refers to the sum of the hostilities, from theoutbreak of conict to its resolution. +ostilities are violent incidentsoccurrin within that timeframe.

#he term hostilities has both a temporal and a material aspect.)eardin the former, hostilities covers both the time spent in thepreparation for, the e5ecution of and the return from an attack.$ccordin to the authoritative -3)3 3ommentary on the $dditional/rotocols> -t seems that the word PhostilitiesQ covers not only thetime that the civilian actually makes use of a weapon, but also, for

e5ample, the time that he is carryin it, as well as situations inwhich he undertakes hostile acts without usin a weapon.8A

)eardin the material aspect, hostilities covers acts of war whichare speci"cally intended by their nature or their purpose to hit thepersonnel and the materiel of the armed forces of the adverse/arty.8:

(.2 )hat is *eant +, the ter* -direct participation in hostilities/

#o take a direct part in hostilities is usually taken to mean to enaein a speci"c attack or attacks on an enemy combatant or objectdurin a situation of armed conict. $rticle ':719 $dditional /rotocol- e5plains that> $ttacks means acts of violence aainst theadversary, whether in oence or defence. #he ad hoc-nternational3riminal #ribunal for the $n PattackQ can be de"ned as a

*7 /. Jerri, Dictionar! of the International Law of Armed 2on7ict 7=eneva, -3)31::%9 p. 6;.*8 2ommentar! on the Additional )rotocols of 9 :une ; Au#ust ;


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course of conduct involvin the commission of acts of violence. #heconcept of PattackQ is distinct and independent from the concept ofParmed conictQ. -n practice, the attack could outlast, precede, orrun parallel to the armed conict, without necessarily bein a part ofit.'&

oth the terms direct and active participation in hostilities occurin =eneva law, althouh it can be ?uestioned whether there is anysubstantive dierence between them. Many commentators usethese terms interchaneably.'1$ccordin to 2instein> -n essence,takin an active part in hostilities 7which neates the status ofcivilians9 implies participation in military operations.'%

#he jurisprudence of the ad hoc -nternational 3riminal #ribunal for)wanda 7-3#)9 indicates that there is no substantive dierence

between the terms active and direct. -n the Aka!esu #rialEudement, the #rial 3hamber found that these terms should betreated synonymously.'8

3.2.1 Which types of activities constitute direct participation?

$ccordin to the -3)3 3ommentary on $dditional /rotocol -> 2irectparticipation in hostilities implies a direct casual relationshipbetween the activity enaed in and the harm done to the enemy atthe time and place where the activity occurs.''#he 3ommentary on$dditional /rotocol -- states in a similar vein that> #he notion of

direct participation in hostilities implies that there is a suDcientcasual relationship between the act of participation and itsimmediate conse?uences.'6

ut, in fact, this view, like the term direct participation in hostilitiesitself is somewhat misleadin as it suests that only directparticipation in a literal sense in activities amountin to attacks orwhich enable the launchin of attacks on an enemy are covered. Inthe contrary, it is enerally and increasinly considered that thereare many activities which involve a more indirect role for civilians,where the civilian is one or more steps 7eoraphically or

temporally9 away from the actual application of violence 7which maybe virtual rather than physical9 and may not even consider him orherself to be a direct participant in hostilities, and which do notactually involve attacks in the literal or kinetic sense, or where the

3:)rosecutor v. +ilorad 8rnojelac, 3ase 0o. -#*:;*%6, 16 March %&&%, para. 6'.31 O. 2instein, $he 2onduct of Hostilities %nder the Law of International Armed2on7ict73ambride, 3ambride (niversity /ress %&&'9 p. 16%.3#-bid., p . 16%.3*)rosecutor v.:ean@)aul Aka!esu, 3ase 0o. -3#)*:F*'*#, % Ceptember 1::A, para.

F%:.332ommentar!, op. cit. n. '&, op. cit., para. 1F;:.35-bid., para. ';A;.

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causality relationship is more indirect, yet which are also consideredas direct participation in hostilities.

Ine can observe that at both ends of a spectrum of activities lieacts about which there appears to be consensus or at least littlecontroversy that they constitute direct participation in hostilities orthat they do not. -t is those that lie somewhere in between that iverise to uncertainty.

efore focusin on the diDcult cases, it is useful to "rst identifywhat are enerally considered as clear*cut cases of directparticipation by civilians in hostilities. $ccordin to 4alshoven> L#otake a direct part in hostilities must be interpreted to mean that theperson in ?uestion performs hostile acts, which, by their nature orpurpose, are desined to strike enemy combatants or materielG acts

in other words, such as "rin at enemy soldiers, throwin a Molotov*cocktail at an enemy tank, blowin up a bride carryin enemy warmateriel, and so on.'F#he (C 0avy manual states>

3ivilians who take a direct part in hostilities by takin up armsor otherwise tryin to kill, injure, or capture enemy personnel ordestroy enemy property lose their immunity and may beattacked. 2irect participation may also include civilians servinas uards, intellience aents, or lookouts on behalf of militaryforces. 2irect participation in hostilities must be juded on acase*by*case basis. 3ombatants in the "eld must make an

honest determination as to whether a particular civilian is or isnot subject to deliberate attack based on the persons behavior,location and attire, and other information available at thetime.';

$ person who delivers ammunition within combat !ones is enerallyconsidered to be directly participatin in hostilities.'A Oet, in thiscase, these persons are not themselves directly participatin in anactual attack, but enain in an activity which makes possible thedirect participation in an attack by another person. Ctill, they are

considered by most authorities to be leitimate military tarets forthe duration of their participation.

3ivilians do not have to be located in the !one of hostilities or beararms themselves in order to be considered as direct participants inhostilities and as subject to attack themselves. Where civilians areinvolved in operatin weapons systems durin situations of

36 Cee


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hostilities, even where they are at a eoraphical remove from the!one of hostilities, they can be considered as directly participatin.


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*.#.1.1 To what e2tent is the intention of the participant or the results achie+ed

rele+ant

-t was stated above that some persons who miht be considered asdirect participants in hostilities miht not actually be aware of theirparticipation, bein the ?uestion, to what e5tent is the civiliansstate of mind relevant. What type of mens rea must a civilianpossess in order to be considered as a direct participant inhostilitiesH -t seems that one necessary mental element is that thecivilian participant must intend to ain a military advantae orcause harm to the enemy. -ndeed military responses to unlawfulcivilian involvement in hostilities acknowlede that there must be acertain intention on the part of the civilian who participates. #his isclear even from the 3ommentaries to the


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weapon used.68$ruably, the results of the participation should notbe determinative of a civilians participation. When the ?uestion ofwhether or not an individual civilian is considered to be directlyparticipatin in hostilities is made continent on the actual eectsachieved, it leaves too much to chance. -f a civilian lobs a handrenade at a soldier durin an armed conict, few would arue withthe proposition that he intends to inict serious injury or harm and isa direct participant in hostilities. +is objective intention isdiscernable from the choice of weapon used. -f the hand renademisses its taret and ends up in a river, is the civilians act any lessilleal, or is he any less of a 7future9 military threatH

What if a child throws a stone at a soldier on patrol durin asituation of occupationH -n this case, the choice of weapon couldindicate a certain intention 7or lack of9 on the part of the assailant. -f

he had wanted to participate in hostilities and thereby inict actualharm, he miht better have chosen a Molotov cocktail. #he fact thathe has chosen as his weapon a stone could mean that he merelyintends to e5press his dissatisfaction with the occupation. Ctill,accidents can happen and it is possible that the stone could strikethe soldier in the head, inictin a mortal blow. Chould his bad luckin killin the soldier 7a results*oriented approach9 maicallytransform him from a protester into a war criminalH $ child who "resa Molotov cocktail at a soldier miht reasonably e5pect to inictserious harm on the recipient. Oet, fate miht intervene, and theMolotov cocktail could miss its taret.

#hese e5amples hopefully illustrate that there are diDculties with aresults*oriented approach. a civilian may intend to directly participate, with the oal ofachievin a military advantae, but he may fail in his attempt, oreven be less successful than he had hoped. ut for all that, he is noless of a direct military threat, includin an onoin threat. -ndeed,his initial failure may simply spur him on to try aain.

$propos the e5ample of the child throwin a stone, one can arue

that a child is not in a position to form the necessary intention todirectly participate in hostilities, and the presumption is@@iseveryminor should be that they are not direct participants unless there isa preponderance of evidence to the contrary 7which the use ofweapon could sinify9. -t should also be mentioned that any militaryresponse, even to a direct attack, must be proportionate. Bven if thechild is concerned to be a direct participant in hostilities, a

5*-t should be noted that the fact of a civilian bein armed in a !one of hostilitiesshould not of itself be suDcient to transform a peaceful civilian into a directparticipant in hostilities. #he weapon could be carried for various leitimatereasons, includin personal self*defense. -t would at least be necessary for the

weapon to be used, with hostile intent, aainst an enemy combatant or militaryobjective in order for the civilian to be considered as a direct participant.

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proportionate response 7one that is informed by the rules ofinternational humanitarian law9 would not involve the use of live "reor even plastic bullets.

While it can validly be arued that in the cut and thrust of asituation of armed conict, there is simply no time to look at theintention motivatin an act, the idea is not to try and read the mindsof civilians enaed in hostilities but to discern their intention fromthe available evidence, on a case*by*case basis. #his seems indeedto be consonant with the above*?uoted (C 0avy Manual, whichenjoins combatants in the "eld to jude each action on its ownmerits, and consider all the available information at the time beforereactin. 3learly, wars can only be waed and responses calibratedbased on visible and discernable action, not on the unknown 7andpossibly unknowable9 intention of an assailant. earin in mind that

where reactive force is used, it must be proportionate and militarilynecessary, one could arue that where a civilians clear 7on its face9intention is not the ainin of a military advantae or the inictionof harm on the enemy, he is probably not directly participatin inhostilities.

3.2.2. Which types of activities do not constitute direct participation?

While, as noted above, makin an essential contribution to the wareort could involve a civilian in direct participation, a non*essentialcontribution to the eneral war eorts 7e.., by supplyin foodstus

to combatants9 is not tantamount to active participation inhostilities.6'#hus, workin in a munitions factory, supplyin food tocombatants, transport of food or humanitarian supplies, etc. are notconsidered to constitute direct participation. $ccordin to $./.J.)oers>

#akin a direct part in hostilities must be more narrowly construedthan makin a contribution to the war eort and it would not includetakin part in arms production or military enineerin works ofmilitary transport.66

3ombatants clearly rely on the munitions made in the factorieswhere civilians work and are e?ually dependent on the food they aresupplied with. ut in this case, the causality is too remote, and thereis also no objective intention on the part of these civilians toparticipate. #he civilian does not intend to harm the enemy by hisactions or to ain any military advantae.

0otwithstandin the importance of certain key scientists to amilitary eort, most civilian scientists workin for the military couldnot be considered as directly participatin in hostilities where they

532instein, op. cit. n. '1, pp. %;*%A.55)oer, op. cit. n. 'A, p. ;.

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are merely participatin in the war eort. +owever, where by theirwork civilians put their own lives in daner, they cannot claim theprotection aainst attack. $s 4alshoven points out> civilians cannotenjoy protection from attack when they enter military objectives7e.., by workin in a military base or in a munitions factory9 oraccompanyin military units. #his protection is diminished evenwhen civilians merely live near K or pass by K a military objective, bydint of the very tanible daner of a leitimate collateral damae incase of attack.6F

3.2.3 Grey areas

#here are numerous rey areas as concerns the ?uestion of civilianparticipation in hostilities and this workin paper can only point outa few.

$mon those activities ivin rise to particular concern includeintellience atherin, rescue operations and the defensive use offorce.

)eardin intellience atherin, 2instein distinuishes between aperson who athers military intellience in enemy*controlledterritory and a civilian who retrieves intellience date from satellitesor listenin posts, workin in terminals located in his homecountry.6;#he former, in his view, would be a direct participant,while the latter would not. Oet, what is really the essential dierencebetween themH #hese days, vital intellience, includin taret

identi"cation, may be athered by drones remotely controlled bycivilians located thousands of miles away. Cuch a person may not bedirectly participatin in as much as he may not actually beenaed in carryin out a direct attack, but the information heathers makes that attack possible, and without it, it would not bepossible to attack that taret. #here is a clear link and causality canbe shown. +e is as much of a direct participant@and hiscontribution to the war eort is just as vital@as the person whodrives the truck that delivers ammunition in a war !one. $s warfarebecomes increasinly technoloically sophisticated, it seems almost

?uaint to adjude the ?uestion of ones direct participation in itbased on ones pro5imity to a possibly non*e5istent physicalbattle"eld.

$s the wain of war comes to increasinly rely on civilians 7andactually, in many cases, simply could not be conducted without thecivilian contribution9, the distinction between supportin the wareort and makin an essential contribution to the war eort isbecomin increasinly strained. Ine determinant could be> does thecivilian make such an essential contribution to the war eort thatwithout him or her, the attack could not be carried outH $ daner

564alshoven and Ueveld, op. cit. n. 'F, p. 1%:.572instein, op. cit. n. '1, pp. %;*%A.

#*


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with such an approach is that it miht implicate in directparticipation the civilians employed by the armed forces whothemselves may not realise that they are directly participatin@atleast in particular attacks. #his is why the mental element K theobjective intention to participate K is so important to establish.

$s reards rescue operations, the (C $ir


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may posses neither the trainin nor e5perience to activelyparticipate in force protection measures, and the rules overninwarfare preclude them from doin so e5cept in self*defense.6:

Cchmitt has arued K correctly, it is submitted K that Lray areasshould be interpreted liberally, i.e., in favour of "ndin directparticipation,F&iven that an underlyin purpose of the law is toenable distinction to be made between combatants and civilians.

3.2.4 The temporal element

$rticle 61789 of $dditional /rotocol - indicates that the protection lostby civilians when they take a direct part in hostilities is temporary,althouh the phraseoloy is somewhat circular and does not reallyhelp to elucidate just how lon that period is. -t provides, as

mentioned earlier, that civilians lose their protected status for suchtime as they take a direct part in hostilities, while not enlihteninon what is encompassed by takin a direct part in hostilities. #he3ommentaries to the

$lthouh certainly lackin on this point, military loic sueststhat the period indicated by these words encompasses both thetime durin which the civilian is obviously approachin thechosen taret with a view to carryin out his hostile act7althouh one should be aware here of the rule on cases ofdoubt in $rticle 6&7199 and the time he needs to withdraw fromthe scene after the act.F%

#he 3ommentary on $dditional /rotocol -- notes, in relation to the

temporal aspect, that the civilian who is directly participatin inhostilities may be attacked for as lon as his participation last.#hereafter, as he no presents any daner for the adversary, he maynot be attacked.F8

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#he assumption here@as e5plicitly made in the 3ommentary@isthat once the attack has been carried out and the assailant hasreturned home, he no loner poses a military threat which must beneutrali!ed usin military force. =iven the principle that the leastforce necessary to achieve ones military or law enforcementobjectives ouht to be employed, a person who has already carriedout an attack and who loner poses a military threat 7at thatmoment9, should be neutrali!ed usin the least force possible. #hatmeans that an individual who has earlier posed a military threat byvirtue of his or her direct participation should be arrested ratherthan attacked usin military force, where this is possible. -ncontrast, a combatant is at all times considered to be a leitimatemilitary objective, even while o duty or asleep in bed.

#he above reasonin, while sound in principle, does not necessarilys?uare with the nature of modern conict. -ndeed, this temporallimitation is@@is civilian who take a direct part in hostilities seemsincreasinly arti"cial and impractical, and could even at times be atodds with what miht be presumed to be the underlyin military andlaw enforcement oals of reducin the security threat presented byunlawful civilian participation in hostilities and upholdin theprinciples of distinction and protection.

#he diDculty lies not so much with the civilians who carry out onceo attacks on military objectives but with civilians, includin

terrorists operatin in situations of armed conict, who arecommitted to onoin attacks aainst military or civilian tarets. -tis diDcult to arue that such a person no loner poses a militarythreat just because he has walked throuh his front door after anattack, where his intention to directly participate in future attackshas been stated or can be inferred from all the surroundincircumstances 7aain, the objective intention9. $ sleepincommitted terrorist or rebel who is committed to armed struleaainst an opponent poses just as potentially lethal a military threatas the sleepin combatant. #he -sraeli overnment has arued, at

times not without some justi"cation, that the principle of distinctionmiht be better observed by a tareted military attack on a sleepinterrorist than by attackin him while he is walkin home throuh abusy street in the middle of the day. While this should not beinterpreted as an endorsement of the -sraeli policy of taretedassassinationF'K and it is reconised that in reality drawin a linebetween leitimate attacks on unlawful combatants and unlawfulassassinations may be very diDcult K it does seem that theenerally accepted view of the temporal limitation at least deservesre*e5amination. $ strict adherence to the temporal limitation 7with

63

#he -sraeli 2efence


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the participation endin once the civilian returns home9 may notalways be the most eDcacious, or the one best desined toma5imi!e respect for the principles of distinction and protection oftruly innocent civilians. $ll circumstances should be looked at,includin the ability of the respondent to employ other means toneutrali!e the threat, its control over the territory where the civilianassailant is to be found, necessity 7in the conte5t of self*defense9and the proportionality of the military response. -t may not, fore5ample, be possible to arrest a terrorist or an unlawful combatantin cases where the state that is attacked does not control theterritory where the civilian is operatin.

#he enerally accepted temporal limitation also re?uires states toreact ?uickly, which could lead to unfortunate results. -t may not bepossible to ather the intellience necessary to identify the

assailant in time to attack him while he is still on the job or returninhome from it. $ tareted attack after the fact based on "rmintellience could lessen the possibility of mistaken identity.

(ndoubtedly, the subject is comple5, politically incendiary andfrauht with diDculties which cannot be fully e5plored here. ut ifthe purpose of identifyin the temporal duration of loss of immunityis the minimi!ation or neutrali!ation of the military threat posed byan individual civilian while he is directly participatin in hostilities7by allowin him to be attacked durin these windows ofopportunity9, then what seems important in fact are the 7onoin9

objective intentions and military capabilities of the civilian, ratherthan the fact of particular incidents of unlawful participation.$ruably, an individual civilian whose commitment to the unlawfuluse of armed force is demonstrable and onoin should betaretable until such time as he or she has clearly renounced such acommitment, and is no loner considered to pose a military threat.#he burden of proof could be put on the individual civilian withrespect to whom the objective intention to participate has beendemonstrated to show that he renounced that intention and isloner committed to direct participation in attacks. #his approach is

also supported by Cchmitt, who writes> Ince an individual hasopted into the hostilities, he or she remains a valid military objectiveuntil unambiuously optin out. #his may occur throuh e5tendednon*participation or an aDrmative act of withdrawal.F6

On the other hand; where there is no o


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3.2.5 n order to directly participate in hostilities! must there "e a ne#us $ith the

armed conflict?

-n order to participate directly in hostilities, there should be somelink between the individual civilian participant and the armedconict, i.e., the act should not be undertaken for purely privatereasons. 2urin a situation of armed conict, a man who shoots hisneihbour because of an arument about money is committin acriminal act, but as the killin is unrelated to the conict he couldnot be said to be directly participatin in hostilities or, beyond that,committin a war crime.

#his conclusion seems to be con"rmed@if only by deduction@by therecent jurisprudence of the -3#O and -3#). -n the $adi' case, an -3#O#rial 3hamber stated that>

-t would be suDcient to prove that the crime was committed inthe course of or as part of the hostilities in, or occupation of, anarea controlled by one of the parties. -t is not, however,necessary to show that armed conict was occurrin at thee5act time and place of the proscribed acts alleed to haveoccurred, as the $ppeals 3hamber has indicated, nor is it

necessary that the crime alleed takes place durin combat,that it be part of a policy or of a practice oDcially endorsed ortolerated by one of the parties to the conict, or that the act bein furtherance of a policy associated with the conduct of war orin the actual interest of a party to the conictG the obliations ofindividuals under international humanitarian law areindependent and apply without prejudice to any ?uestions ofthe responsibility of Ctates under international law. #he only?uestion, to be determined in the circumstances of eachindividual case, is whether the oences were closely related tothe armed conict as a whole.F;

-n Aleksoski, the #rial 3hamber found that> 0ot all unlawful actsoccurrin durin an armed conict are subject to internationalhumanitarian law. Inly those acts suDciently connected with thewain of hostilities are subject to the application of this law. T -t isnecessary to conclude that the act, which could well be committedin the absence of a conict, was perpetrated aainst the victim7s9concerned because of the conict at issue.FA -n the +usema case,the -3#) was even more e5plicit on the need for a ne5us between

66

)rosecutor v. Dusko $adic aCkCa ,Dule-, 3ase 0o. -#*:'*1*#, Ipinion andEudment, ; May 1::;, para. %&;.67-bid., para. 6;8.

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the accuseds acts and the hostilities, for the purposes of "ndin acivilian criminally responsible for a war crime> Toences must beclosely related to the hostilities or committed in conjunction with thearmed conict to constitute serious violations of 3ommon $rticle 8and $dditional /rotocol --. -n other words, there must be a ne5usbetween the oences and the armed conict.F: -n 4uta#anda, the-3#) #rial 3hamber followed +usema.;&L#he evidence adduced insupport of the chares aainst the accused must satisfy the3hamber that such a ne5us e5ists. #hus, the burden rests on the/rosecutor to prove beyond a reasonable doubt that, on the basis ofthe facts, such a ne5us e5ists between the crime committed and thearmed conict.;1

Ibviously, bein criminal courts, the ad hoc -nternational 3riminal#ribunals have addressed the ?uestion of the relationship between

an individual civilian and the armed conict for the purposes ofdeterminin criminal liability of a civilian, and there has been nosubstantive discussion of the ?uestion of direct participation inabstracto. -t is not altoether clear whether the same re?uirementsapply merely for the purposes of determinin whether a civilian hasunlawfully participated in hostilities, short of criminal liability,althouh it is not unreasonable to surmise that a similar conclusionwould be reached in determinin whether certain acts constitutedirect participation 7short of criminal behaviour9.

3.2.% n order to directly participate! does the civilian have to "e a mem"er of orhave a lin& $ith a party to the conflict?

#he ?uestion has arisen whether, in addition to the ne5usre?uirement to the conict, there is a further re?uirement that thecivilian is a member of a party to the conict or has some other typeof link with a party to the conict. #his issue has also receivedconsiderable attention in #ribunal case law, althouh aain for thepurposes of "ndin criminal liability. $ review of the relevantjurisprudence leads to the conclusion that it is not necessary forthere to be a link between the acts committed and a party to theconict, at least for the purposes of "ndin criminal liability for actscommitted.

(ntil the recent decision of the $ppeals 3hamber inAka!esu@whichappeared to settle the matter@there was some diverence in thejurisprudence of -3#O and -3#) #rial 3hambers on this ?uestion.

68$he )rosecutor v. *latko Aleksoski, 3ase 0o. -#*:6*1'R1*#, Eudement, %6 Eune1:::, para. '6.69 $he )rosecutor v. Alfred +usema, 3ase 0o. -3#)*:F*18*#, Eudement andCentence, %; Eanuary %&&&, para. :;8. Cee also paras. %6:*%F%.7:

$he )rosecutor v. (eor#es Anderson Nderubumwe 4uta#anda, 3ase 0o. -3#)*:F*8*#, Eudement and Centence, F 2ecember 1:::, para. 1&'.71-bid., para. 1&6.

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-n the 8unaraccase, the -3#O #rial 3hamber touched briey on the?uestion of the need for a link between an accuseds acts and aparty to the conict. Cettin out the list of re?uirements identi"ed in&elebi'i,;% it stated> -t would appear to the #rial 3hamber thatcommon $rticle 8 may also re?uire some relationship to e5istbetween a perpetrator and a party to the conict.;8 +owever, adetermination on this ?uestion was not necessary in this case, as allof the accused fouht on behalf of parties to the conict.

-n the decision of the #rial 3hamber in Aka!esu, the -3#) iteratedthat both the #okyo trials and other post*World War -- trialsune?uivocally support the imposition of individual criminal liabilityfor war crimes on civilians where the! hae a link or connection witha )art! to the con7ict.;'$s to what type and deree of connectionor link is re?uired, the 3hamber stated that>


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responsibility is restricted to a particular class of people.;; T itdoes not follow that the perpetrators of a violation of $rticle 8 mustof necessity have a speci"c link with one of the above*mentioned/arties.;A-t found that the decision of the -3#O in 8unarachad nosupport in either statute or case law. In the other hand, the $ppeals3hamber upheld the need for a link between the violations and anarmed conict.;:

-t is submitted that this reasonin is e?ually valid for a "ndin ofdirect participation short of the commission of any additionalcriminal act, that is, a link to a party to the conict or membershipof an armed roup is not a necessary element of direct participation,once a link to an armed conict is proven.

0. THE CON"EUENCE" O# UN!$)#U! $RTICI$TION#he most serious conse?uence of takin a direct part in hostilitieshas already been alluded to> the civilian loses his or her protectedstatus and may be attacked, for the duration of his or herparticipation, however lon that is determined to be.

$nyone who takes part in hostilities, be they a combatant or acivilian, if captured, may be detained until the end of hostilities.Inly the applicable leal reime will dier, with combatants /IWstatus under the #hird =eneva 3onvention of 1:': and $dditional/rotocol -, and civilians fallin under the


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3onvention, if he claims the status of prisoner of war, or if heappears to be entitled to such status, or if the /arty on whichhe depends claims such status on his behalf by noti"cation tothe detainin /ower or to the /rotectin /ower. Chould anydoubt arise as to whether any such person is entitled to thestatus of prisoner of war, he shall continue to have such statusand, therefore, to be protected by the #hird 3onvention andthis /rotocol until such time as his status has been determinedby a competent tribunal.

Ince his status has actually been determined by a competenttribunal, pursuant to $rticle 6 of the #hird 3onvention, and he hasbeen found not to be a /IW, he can be held as a reular detaineeand, importantly, is not devoid of rihts. 0or does he cease to be aprotected person under $rticle ' of the


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territory, any such person, unless he is held as a spy, shall also beentitled, notwithstandin $rticle 6 of the


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order to "nd a civilian criminally liable for a war crime but even if alink to a party is not an absolute re?uirement for a "ndin of directparticipation in hostilities, it could be one element indicatin theobjective intention to participate unlawfully.

While eorts must be made to pinpoint the modalities of civilianparticipation in hostilities, so that the law can keep pace with therealities on the round, the ultimate aim must surely be not toproduce an e5haustive list of the varyin modes of civilianparticipation in hostilities 7an impossible and futile e5ercise9 but totry and identify criteria or common elements of participation whichcan be applied across the board, and in both international and non*international armed conicts. #hese elements will have bothphysical 7actus reus9 and mental 7mens rea9 aspects. Whateverresult is ultimately achieved, be it an elements*based or a

de"nitional approach@must be able to take account not only ofthose forms of civilian participation currently manifest but thosewhich are likely to present themselves in the future, includin in thetypes of conicts that are not yet reconi!ed by internationalhumanitarian law but which may eventually come to fall under itsumbrella.

(nderpinnin and propellin forward all these eorts must be aconcern with supportin and strenthenin the fundamental oals ofinternational humanitarian law, in particular, its core customaryprinciples of distinction and protection. While it is undoubtedly true

that unlawful civilian participation in hostilities weakens theprinciples of distinction and protection@and often deliberately so@the response of states to these challenes must not be to weakenthese bulwarks aainst anarchy further still. -f states do not showleadership in takin the leal and moral hih round in approachinthe challene of unlawful civilian participation in hostilities, the lawwill be rendered an empty shell, and increased suerin ofinnocents will be the inevitable result.

Documents

Challenges to IHL