Clarifying the notion of direct participation in hostilities

30-06-2009 Feature

International humanitarian law hinges on the principle of the distinction between combatants, whose function is to conduct hostilities during armed conflict, and civilians, who are presumed not to be directly participating in the hostilities and, therefore, entitled to full protection from attack. They lose this protection only if, and for as long as they "directly participate in hostilities". After six years of expert discussions and research, the ICRC has published the "Interpretive Guidance", which aims to clarify the meaning and consequences of direct participation in hostilities under international humanitarian law (IHL).

From time immemorial the civilian population has contributed to the war effort, be it through the production and supply of weapons, equipment, food, and shelter, or through economic, administrative, and political support. Typically, however, such activities were far-removed from the battlefield and civilians only exceptionally took part in actual combat.
Circumstances have changed markedly in recent decades, blurring the line between the battlefield and areas of civilian habitation. The proximity of civilians to military operations and their increased assumption of traditionally military roles lead to confusion as to the implementation of the principle of distinction. This is compounded by the increasing outsourcing of military functions, giving private contractors, civilian intelligence personnel, and other civil servants a growing role in the conduct of armed conflict.

A further problem arises where armed actors do not distinguish themselves from the civilian population, for example during undercover military operations or when they “act as farmers by day and fighters by night”. Consequently, civilians are more likely to fall victim of erroneous or arbitrary targeting, while military personnel - unable to properly identify their adversary ­– are vulnerable to attacks by individuals who are indistinguishable from civilians. All this underscores the importance of distinguishing not only between civilians and military personnel, but also between civilians who do not directly participate in hostilities and, those who do.

While IHL stipulates that civilians be protected against direct attack, "unless and for such time as they take a direct part in hostilities", neither the Geneva Conventions nor their Additional Protocols spell out what conduct constitutes direct participation in hostilities.
In its efforts to redress this situation and to protect the civilian population from erroneous or arbitrary targeting, the ICRC initiated an informal process of research and consultation with the aim of clarifying three key questions: (1) Who is considered a civilian for the purposes of conducting hostilities? (2) What conduct amounts to direct participation in hostilities? (3) What modalities govern the loss of civilian protection against direct attack?

Five meetings held between 2003 and 2008 in The Hague, in the Netherlands, and Geneva, Switzerland, brought together up to 50 legal experts from military, governmental and academic circles, from international organizations and NGOs, all participating in their private capacity. Based on the discussions held and the research conducted in the course of the process, the ICRC drafted its "Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL". This document does not necessarily reflect a unanimous or majority opinion of the participating experts. However, it provides the ICRC’s official recommendations on how IHL relating to the notion of direct participation in hostilities should be interpreted in contemporary armed conflict.