Direct participation in hostilities
Civilians enjoy general immunity from direct attacks. However, they lose this protection for such time as they take a "direct" or "active" part in hostilities. A series of Expert Meetings co-organized by the ICRC and the TMC Asser Institute endeavour to clarify the precise meaning of the notion of "direct participation in hostilities", which has never been defined in treaty law and the importance of which has dramatically increased in parallel with the growing involvement of civilians in the conduct of hostilities in both international and non-international armed conflicts.
Derived from Common article 3 to the Geneva Conventions, the notion of " direct " or " active " participation in hostilities is found in multiple provisions of international humanitarian law (IHL). Direct participation in hostilities by civilians entails loss of immunity from attack during the time of such participation and may also subject them, upon capture, to penal prosecution under the domestic law of the detaining state. Despite the serious legal consequences involved, neither the Geneva Conventions nor their Additional Protocols include a definition of what constitutes " direct participation in hostilities " .
The term " direct " participation necessarily implies a distinction from " indirect " participation in hostilities, thereby providing two poles within which differences of judgment can operate. Notwithstanding the divergences regarding the precise confines of direct participation, any interpretation of this notion should be narrow enough to protect civilians and maintain the meaning of the principle of distinction, while broad enough to meet the legitimate need of the armed forces to effectively respond to violence by non-combatants.
In an at tempt to balance these opposing interests, the Commentary on AP I asserts that the behavior of civilians must constitute a direct and immediate military threat to the adversary to be deemed " direct participation in hostilities " . This criterion has, however, been challenged by some scholars and - to a certain extent - by State practice, which has tried to enlarge the notion. It has been suggested, for example, that direct participation not only includes activities involving the delivery of violence, but also acts aimed at protecting personnel, infrastructure or materiel. It has even been suggested that the determination of direct participation rests on the appreciation of the value added brought to the war effort by a civilian post as compared to a purely military activity.
Within these parameters, little doubt exists that a civilian carrying out an attack would be directly participating in hostilities. In the same vein, legal experts seem to agree that civilians preparing or returning from combat operations are still considered to be directly participating in hostilities, although precise indication as to when preparation begins and return ends remains controversial. Legal literature also attests to intense debates on the qualification of a number of ambiguous situations which do not necessary imply the use of a weapon, such as logistical support activities and intelligence or guarding activities.
Contemporary conflicts have given rise to further challenges in terms of defining and implementing the notion of " direct participation in hostilities " . The use of high-tech warfare (including computer network attack and exploitation), privatization of the armed forces and the " fight against terrorism " , among others, illustrate the increased intermingling of civilian and military activities which make it difficult to determine who is taking a " direct part in hostilities " and what measures should be taken to protect those who are not directly participating.
The legal consequences of direct participation in hostilities also raise difficult questions. The fact that " direct participation " by civilians automatically entails a loss of immunity from attack for such time as they take a direct part in hostilities remains uncontroversial. The issue, however, is determining the exact duration of " direct participation " and whether, for example, loss of immunity should be treated in the same manner in international and non-international armed conflict. The legal regime applicable to civilians taking a direct part in hostilities in case of capture or detention has also raised numerous queries.
Even though it is not a violation of IHL for a civilian to fight for his or her country, the lack of combatant or prisoner of war status implies that civilians directly participating in hostilities may be prosecuted under domestic law for their acts regardless of whether or not they violated IHL. It is not clear, however, whether domestic criminal prosecution could ensue for the mere fact of directly participating in hostilities or whether such participation must involve an act prohibited under domestic law or international law.
To address these challenging issues, the International Committee of the Red Cross, in cooperation with the TMC Asser Institute, initiated a process aimed at clarifying the notion of " direct participation in hostilities " . In the framework of this process, three informal Expert Meetings entitled " Direct Participation in Hostilities under International Humanitarian Law " were organized in The Hague (2 June, 2003 and 25 – 26 October, 2004) and Geneva (23 – 25 October 2005), which brought together around forty legal experts representing military, governmental and academic circles, as well as international and non-governmental organizations.
The high level of expertise of the participants enabled a constructive and fruitful discussion of a wide range of complex legal questions related to the material and temporal scope of direct participation in hostilities. The participants felt that further research and discussion aimed at clarifying the content and legal consequences of this notion would be extremely useful. The ICRC was thus encouraged to continue the challenging process it had begun in cooperation with the TMC Asser Institute.