International Review of the Red Cross, 2008, No. 872 – Direct participation in hostilities
Civilians are playing an increasingly decisive role in determining the outcome of wars. This has further blurred the fundamental civilian/combatant distinction that is the cornerstone of modern humanitarian law. The lawfulness of an attack on civilians depends on their own conduct in hostilities, and hinges on the principle of “direct participation in hostilities”. The definition and scope of this concept are the subjects of debate, to which the Interpretative Guidance of the ICRC, published in this edition of the Review, aims to bring further clarification.
Issue No. 872 - 2008
Theme: Direct participation in hostilities
Table of contents
Editorial - IRRC December 2008 No 872
Interview with The Hon. Sergio Jaramillo Caro, Vice Minister of Defence in Colombia
The Honourable Sergio Jaramillo Caro is Vice Minister of Defence in Colombia. Prior to this, he held several diplomatic and governmental positions, including adviser to the Ministry of Foreign Affairs (where he was in charge of diplomacy for peace), Political Counsellor of the Embassy of Colombia in France, and Adviser for Political and Strategic Affairs of the Ministry of Defence.
The civilianization of armed conflict: trends and implications
Andreas Wenger and Simon J. A. Mason
Civilians play an increasingly important and complex role in armed conflicts, both as victims and perpetrators. While this overall trend of “civilianization” encompasses all types of present-day conflicts, it takes on a very different nature in high-technology warfare than in the context of low-technology combats that are typical of many civil wars.
The past as prologue: the development of the "direct participation" exception to civilian immunity
The "direct participation" exception to the principle of distinction, found in Article 51(3) of Protocol I and Article 13(2) of Protocol II, embodies a long-recognised concept in the laws governing armed conflict. For centuries, the broad notion that humanity demands the protection only of those citizens who are harmless has found expression in the rules and norms relating to war. This article traces the historical factors and trends which influenced the development of the exception in its current form, revealing a tendency towards ‘humanising’ the law in favour of civilians, notwithstanding their increased military value.
Chained to cannons or wearing targets on their T-shirts: human shields in international humanitarian law
Stéphanie Bouchié de Belle
This article examines the legal problems associated with human shields. The author begins by discussing the absolute nature of the prohibition on their use and goes on to consider the precautions to be observed by the party being attacked.
Mission impossible? Bringing charges for the crime of attacking civilians or civilian objects before international criminal tribunals
Three main arguments may explain why few cases in international (and national) criminal law include charges for attacks against civilians or civilian objects. The law may not be sufficiently clear, there may be a lack of evidence or the selection of military targets may be based on mainly subjective considerations, which make it very hard to establish individual culpability. This article examines some legal and practical reasons for the difficulties the prosecutor faces when trying to charge individuals with such crimes. Although there are few examples, the ICTY has shown that it is generally possible to hold individuals responsible for such crimes.
The equal application of the laws of war: a principle under pressure
The “equal application” principle is that in international armed conflicts, the laws of war apply equally to all who are entitled to participate directly in hostilities, irrespective of the justice of their causes. The principle, which depends on maintaining separation between jus ad bellum and jus in bello, faces serious challenges in contemporary armed conflicts and discourses. The rival proposition – that the rights and obligations of combatants under the laws of war should apply in a fundamentally unequal manner, depending on which side is deemed to be the more justified – is unsound in conception, impossible to implement effectively, and dangerous in its effects.
Can "jus ad bellum" override "jus in bello"? Reaffirming the separation of the two bodies of law
The theoretical separation of "jus ad bellum" and "jus in bello" provides important protection during armed conflict. It guarantees that "jus in bello" will apply regardless of the cause of a conflict. However, this distinction has been challenged by the view that in some cases, a situation of self-defence may be so extreme, and the threat to the survival of the State so great, that violations of "jus in bello" may be warranted.
Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law
Adopted by the Assembly of the International Committee of the Red Cross on 26 February 2009.
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