Joint Series - Direct participation in hostilities: what are the issues and where are the controversies?

Throughout the month of September, Intercross, along with two other blogs - Lawfare and EJIL:Talk! (the blog of the European Journal of International Law) -  is running a series of articles following up on this summer’s 3nd annual Tansatlantic Dialogue on International Law and Armed Conflict, which took place in Oxford in July. Today, Professor Marco Sassòli brings us the first installment of the series, which talks about Direct Participation in Hostilities (DPH).  Sassòli is a Professor of International Law and Director of the Department of International Law and International Organization at the University of Geneva. The views expressed in this article are his own and do not necessarily reflect those of the ICRC or the other blogs taking part in this series. 

Joint Series Part I

Direct participation in hostilities (DPH) is a central concept of International Humanitarian Law (IHL). It makes the difference between conduct that amounts to a war crime – deliberately targeting a civilian – and conduct which is perfectly lawful – deliberately targeting a civilian while s/he directly participates in hostilities. It is perhaps for this reason that states and their militaries do not want to have the concept too clearly defined, while humanitarians would wish for a clear – and restrictive -definition.

In international armed conflicts (IACs), under Art. 50(1) of Additional Protocol I, everyone who is not a combatant, i.e., a member of the armed forces of a state, is a civilian. Members of an armed group that is not responsible to a state may therefore only be attacked if and for such time as they directly participate in hostilities (Art. 51(3) of Protocol I). This is contested by some, who claim that there exists a category of ‘unlawful’ or ‘unprivileged’ combatants who may be targeted in the same way as combatants, but who do not benefit from the same rights. This controversy is, to a certain extent, resolved if we recognize that even in an IAC, hostilities against an armed group not responsible to one of the parties constitute a separate non-international armed conflict (NIAC), to which the separate rules discussed hereafter apply.

In NIACs, one may deduce from the absence of any mention of the term ‘combatants’ in the applicable IHL that everyone is a civilian, who may be attacked only while s/he directly participates in hostilities (Art. 13(3) of Protocol II). This is indeed a position often articulated in human rights circles. However, if everyone is a civilian, the principle of distinction, which is a fundamental to IHL, becomes meaningless and impossible to apply. Article 3 Common to the four Geneva Conventions confers its protection (including against ‘violence to life’) on ‘persons taking no active part in hostilities, including members of armed forces who have laid down their arms or are otherwise hors de combat’. The latter part of the phrase suggests that for such members of armed forces (a term which includes armed groups), it is not sufficient to no longer take direct part in hostilities to be immune from attack. Therefore, the ICRC Commentary to Protocol II considers that ‘[t]hose belonging to armed forces or armed groups may be attacked at any time.’[1] 

To justify this, ‘direct participation in hostilities’ can be understood to encompass the simple fact of remaining a member of the group or of maintaining a fighting function within the group. Alternatively, and this is the approach of both the ICRC DPH Guidance and many militaries, one may consider that fighters are not ‘civilians’. However, how do government forces determine membership in an armed group? How can membership in the armed group be distinguished from simple affiliation with a party to the conflict for which the group is fighting – in other words, membership in the political, educational or humanitarian wing of a rebel movement? Indeed, in practice, one of the differences between the state and a non-state party to a NIAC is that the former does not consist only of its armed forces, while the latter often only consists of the armed group fighting the conflict. In addition, contrary to members of state armed forces, members of armed groups try to hide their membership and are only rarely formally incorporated into or dismissed from the group. This is one of the arguments against any analogy with the law of IACs. However, it is precisely such analogy that is at the heart of the ‘membership approach’ which is - at least in theory - defended by certain states. Under this approach, any member of an armed group is not a civilian and may be attacked like a combatant in an IAC, while the ICRC DPH Guidance suggests that only individuals who have a continuous fighting function within an armed group are really members of the armed group for targeting purposes.

In my view it is this preliminary question whether and in which circumstances someone who is not a combatant may be targeted even while not DPH that is at the heart of the controversies surrounding the ICRC DPH Guidance, rather than the question of what conduct actually constitutes direct participation. On this latter question the Guidance has suggested a definition. Today several experts and officials criticize some aspects of this definition. Experts representing militaries are however mostly obsessed by - and object to – first, the application, by the ICRC, of the principle of military necessity to the targeting of individuals directly participating in hostilities and second, by what they refer to as the ‘revolving door’ phenomenon. That a civilian regains protection once s/he no longer directly participates, regardless of whether s/he may possibly directly participate in the future, is however, an unavoidable result of the clear wording of Article 51(3) of Protocol I and of Art. 13(3) of Protocol II. If the fact of having directly participated in hostilities once or several times had the effect of turning civilians into combatants or members of armed groups, the crucial criteria relevant to determining whether an individual is a member of an armed group - belonging, responsibility and command - would become irrelevant. From a pragmatic point of view, I wonder how a soldier confronted with a civilian not directly participating can be expected to know that the individual did previously engage in direct participation and/or is likely to do so again. To make such speculations the basis for decisions over life or death is dangerous, including for the great majority of harmless civilians.

[1] Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC, Geneva 1987) para. 4789.

Other posts in this series:

  1. Introduction to the 3rd Annual Transatlantic Workshop on International Law and Armed Conflict
  2. Querying the Roles for Human Rights Bodies in the Interplay between International Human Rights Law and International Humanitarian Law - Professor Joanna Harrington, University of Albert Law School, September 10 on Lawfare
  3. Application of IHL by National Courts - Dr Lawrence Hill‐Cawthorne, University of Oxford, September 15 on  EJIL:Talk!
  4. The Development of International Humanitarian Law by International Criminal Courts and Tribunals - Professor Sandesh Sivakumaran, University of Nottingham, September 17 on Intercross
  5. Application of IHL by National Courts - Professor Jeff Kahn, Southern Methodist University, September 22 on Lawfare
  6. Humanitarian Relief Operations: Professor Dapo Akande, University of Oxford & Emanuela Gillard, United Nations,  September 24 on EJIL:Talk!