Direct participation in hostilities

IRRC No. 872

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.

Table of contents

  • Editorial: Direct participation in hostilities

    The phenomenon of civilians taking part in hostilities occurs in all war situations. In the recent conflict in Gaza, controversy raged over whether Israel used indiscriminate force, as the majority of victims were said to be unarmed civilians. Israel defended its actions by claiming that most of the fatalities were Hamas fighters or civilians opposing Israeli forces. In the Iraq war, militias and other fighters not in uniform challenged the world's strongest military power. In Afghanistan the distinction between a peaceful Afghan and a Taliban fighter is difficult to make, often leading to civilian casualties. In Sri Lanka a quarter of a million people – fighters of the Liberation Tigers of Tamil Eelam (LTTE) crammed together with the civilian population – were trapped in an area of 250 square kilometres amid intense fighting. In every internal conflict there have been insurgents who were farmers by day and fighters by night. The fighting civilian, seeking protection through a 'revolving door' by again becoming a peaceful peasant, makes it harder for the opposing armed forces to respond effectively and may lead them to conduct erroneous or arbitrary attacks against civilians.
    Toni Pfanner, Former Editor-in-Chief of the International Review

  • 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

    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.
    Andreas Wenger, Professor
    Simon J. A. Mason, Senior Researcher

  • 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.
    Emily Camins , Australian solicitor

  • Chained to cannons or wearing targets on their T-shirts: human shields in international humanitarian law

    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.
    Stéphanie Bouchié de Belle , Diplomatic officer with the ICRC.

  • 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.
    Carolin Wuerzner, Editorial assistant

  • 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.
    Adam Roberts , Senior Research Fellow

  • 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. The situation is compounded by the confusion of the principles of necessity and proportionality under "jus ad bellum" and "jus in bello" in both academic writing as well as the jurisprudence of international courts. The dangers of blurring the distinction will be elucidated by examining how "jus ad bellum" considerations have affected the application of "jus in bello" in armed conflicts between States and non-State actors.
    Jasmine Moussa

  • Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law

    The present document resulted from an expert process initiated and conducted by the ICRC in close cooperation with the TMC Asser Institute in The Hague. Dr. Nils Melzer, Legal Adviser at the ICRC, who has been responsible for the expert process since 2004, is the author of the Interpretive Guidance and most background documents and expert meeting reports produced during the process. The ICRC would like to express its gratitude to the experts, all of whom participated in the expert meetings in their personal capacity.

  • Books and articles (Winter 2008)

    Recent acquisitions of the Library & Research Service.