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II. CLEARING THE FOG OF WAR? The ICRC'S INTERPRETIVE GUIDANCE ON DIRECT PARTICIPATION IN HOSTILITIES

  • Dapo Akande (a1)

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1 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva 2009) (‘Interpretive Guidance’), available at http://www.icrc.org/web/eng/siteeng0.nsf/html/p0990?opendocument.

2 First Additional Protocol to the Geneva Conventions of 12 August 1949, and Relative to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 Dec 1979) 1125 UNTS 3 [Additional Protocol I].

3 Second Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 Dec 1979) 1125 UNTS 3 [Additional Protocol II].

4 See Public Committee Against Torture in Israel v Government of Israel, Supreme Court of Israel, HCJ 769/02 (13 Dec 2006) para 30.

5 Art 51(2) Additional Protocol I.

6 See, for example, M Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed Conflict’ in H Fischer et al (eds), Crisis Management and Humanitarian Protection: Festschrift fur Dieter Fleck (BWV, Berlin, 2004); Heaton, JR, ‘Civilians at War: Re-examining the Status of Civilians Accompanying the Armed Forces’ (2005) 57 Air Force Law Review 155; Ben-Naftali, O and KR, Michaeli, ‘We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings’ (2003) 36 Cornell International Law Journal 233; Schondorf, RS, ‘Are “Targeted Killings” Unlawful? The Israeli Supreme Court's Response: A Preliminary Assessment’ (2007) 5 Journal of International Criminal Justice 2, 301; Harvard University Program on Humanitarian Policy and Conflict Research, Policy Brief, ‘IHL and Civilian Participation in the Hostilities in the OPT’ (2007) available at <http://hpcrresearch.org/pdfs/ParticipationBrief.pdf>; Lyall, RVoluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States’ (2008) 9 Melbourne Journal of International Law 2, 313.

7 See M Bothe, ‘Direct Participation in Hostilities in Non-International Armed Conflict’, Expert paper submitted to the Second Expert Meeting on the Notion of Direct Participation in Hostilities (The Hague, 2004).

8 See, for example, Guillory, M, ‘Civilianizing the Force: Is the United States Crossing the Rubicon?’ (2001) 51 Air Force Law Review 111; Faite, A, ‘Involvement of Private Contractors in Armed Conflict: Implications under International Humanitarian Law’ (2004) 4 Defence Studies 2, 166, 174; Schmitt, M, ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees’ (2004–2005) 5 Chicago Journal of International Law 511; E-C Gillard, ‘Business Goes to War: Private Military/Security Companies and International Humanitarian Law’ (2006) 88 (863) International Review of the Red Cross 525; L Doswald-Beck, ‘Private Military Companies under International Humanitarian Law’ in S Chesterman and C Lehnardt (eds), From Mercenaries to Market: The Rise and Regulation of Private Military Companies (OUP, Oxford, 2007); M Sossai, ‘Status of Private Military Companies in the Law of War: The Question of Direct Participation in Hostilities’ (European University Institute Working Paper 2009/6); R de Nevers, ‘Private Security Companies and the Laws of War’ (2009) 40 Security Dialogue 2,169.

9 See ICRC, Summary Report: First Expert Meeting on the Notion of Direct Participation in Hostilities (The Hague 2003); ICRC, Summary Report: Second Expert Meeting on the Notion of Direct Participation in Hostilities (The Hague 2004); ICRC, Summary Report: Third Expert Meeting on the Notion of Direct Participation in Hostilities (Geneva 2005); ICRC, Summary Report: Fourth Expert Meeting on the Notion of Direct Participation in Hostilities (Geneva 2006); ICRC, Summary Report: Fifth Expert Meeting on the Notion of Direct Participation in Hostilities (Geneva 2008), all available at <http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-article-020709>.

10 See ICRC, Interpretive Guidance, 6.

11 See Y Sandoz, C Swinarski and B Zimmermann (eds), Commentary to the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC, Geneva, 1987) paras 1942–1945.

12 Public Committee Against Torture in Israel v Government of Israel, Supreme Court of Israel, HCJ 769/02 (13 Dec 2006).

13 See ICRC, Interpretive Guidance, 12–13.

14 See art 50(1) Additional Protocol I.

15 Second Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 Dec 1987) 1125 UNTS 609.

16 See arts 13–18, Additional Protocol II.

17 ICRC, Interpretive Guidance, 21–23.

18 Under art 4(A)(2) of GCIII, members of irregular groups which belong to a State will be entitled to prisoner of war status, only if the fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

19 Goodman, R, ‘The Detention of Civilians in Armed Conflict’ (2009) 103 AJIL 48; D Akande, ‘The Obama Administration's Interpretation of the Authority to Detain at Guantanamo: Some Areas of Progress’ EJIL: Talk! (18 March 2009) available at <http://www.ejiltalk.org/the-obama-administrations-interpretation-of-the-authority-to-detain-at-guantanamo-some-areas-of-progress/>.

20 See K Dörmann, ‘Legal Situation of “Unlawful/Unprivileged Combatants” ’ (2003) 849 International Review of the Red Cross 45. However, it should be noted that art 5 of GCIV permits belligerent States to restrict some of the protections accorded by the Convention where this is necessary for reasons of security.

21 See Y Sandoz, C Swinarski and B Zimmermann (eds), Commentary to the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC Geneva 1987) paras 1659–1674; M Bothe, KJ Partsch and WA Solf, New Rules for Victims of Armed Conflict: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (Martinus Nijhoff, The Hague, 1982), 234.

22 See J-M Henckaerts and L Doswald-Beck, Customary International Humanitarian Law: Volume I:Rules (Cambridge University Press, Cambridge, 2005) Rule 4, 16.

23 See Public Committee Against Torture in Israel v Government of Israel, Supreme Court of Israel, HCJ 769/02 (13 Dec 2006), para 21: ‘Our starting point is that the law that applies to the armed conflict between Israel and the terrorist organizations in the area is the international law dealing with armed conflicts.’ See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, paras 89–101; Report of the United Nations Fact Finding Mission on the Gaza Conflict, Human Rights in Palestine and Other Occupied Arab Territories, UN Doc A/HRC/12/48 (15 Sep 2009), paras 270–285.

24 In support of this view is the Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v Uganda) (2005) ICJ Rep paras 217–220, where the Court applies the international humanitarian law relating to international armed conflict to the action of Ugandan forces in the DRC (and not just in relation to occupied territory). Some authors and the US government have taken the view that the type of conflict under consideration is a non-international armed conflict. However, such a view ignores the fact that a use of force by one State on the territory of another State, without the consent of the latter, is a use of force against that latter State under the jus ad bellum, even if the purpose of the use of force is to engage non-State forces. See Armed Activities case (2005) ICJ Rep paras 149 & 153. An international armed conflict arises whenever there is a resort to force between States (Prosecutor v Tadic, Merits Appeal Judgment, para 84, July 15, 1999 (1999) 28 ILM 1518), however, this does not mean that both States must actually use force. It is sufficient if one State uses force against another State. In support of the view expressed here regarding the international status of certain conflicts involving the transnational use of force against non-State groups, see Alston, P, J, Morgan-Foster and W, Abresch, ‘The Competence of the UN Human Rights Council and its Special Procedures in relation to Armed Conflicts: Extrajudicial Executions in the ‘“War on Terror”’ (2008) 19 EJIL 1, 183.

25 See Kretzmer, D, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16 EJIL 2, 171.

26 Medical Personnel and Religious personnel who are members of the armed forces are not subject to attack. See in D Fleck (ed), The Handbook of International Humanitarian Law (2nd edn, OUP, Oxford, 2008) §610, §818.

27 See K Ipsen, ‘Combatants and Non-Combatants’ in D Fleck (ed), The Handbook of International Humanitarian Law (2nd edn, OUP, Oxford, 2008), §314, 99.

28 See Y Dinstein, C Garraway & M Schmitt, The Manual on the Law of Non-International Armed Conflict: With Commentary (International Institute of Humanitarian Law, San Remo, 2006), reprinted in 36 Israel Yearbook on Human Rights (2006) §1.1.2 which adopts a membership approach but does not define membership.

29 Y Sandoz, C Swinarski and B Zimmermann (eds), Commentary to the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC, Geneva, 1987) para 1944.

30 Public Committee Against Torture in Israel v Government of Israel, Supreme Court of Israel, HCJ 769/02 (13 Dec 2006) para 33.

31 ICRC, Interpretive Guidance, 52–53.

32 On this analysis, the recent practice by the US and NATO of targeting Afghan drug traffickers with links to the Taleban fails to respect the direct participation in hostilities principle: see D Akande, ‘US/NATO Targeting of Afghan Drug Traffickers: An Illegal and Dangerous Precedent?’ EJIL: Talk! (13 Sept. 2009), available at <http://www.ejiltalk.org/index.php>.

33 Public Committee Against Torture in Israel v Government of Israel, Supreme Court of Israel, HCJ 769/02 (13 Dec 2006) [Targeted Killings case], paras 34–37.

34 The ICRC takes the view that only those voluntary human shields who create a physical obstacle to military operations directly cause the threshold of harm required for direct participation in hostilities [ICRC, Interpretive Guidance, 56–57] while the Israeli Supreme Court seems to assume that all voluntary human shields take a direct part in hostilities. Israeli SC [Targeted Killings case, para 36].

35 See J Bellinger, ‘Unlawful Enemy Combatants’ Opinio Juris blog (17 Jan 2007) available at <http://opiniojuris.org/2007/01/17/unlawful-enemy-combatants>.

36 See Public Committee Against Torture in Israel v Government of Israel, Supreme Court of Israel, HCJ 769/02 (13 Dec 2006) paras 12, 30.

37 See M Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed Conflict’ in H Fischer et al (eds), Crisis Management and Humanitarian Protection: Festschrift fur Dieter Fleck (BWV, Berlin 2004), 509–510.

38 ICRC, Interpretive Guidance, 65–68.

39 Public Committee Against Torture in Israel v Government of Israel, Supreme Court of Israel, HCJ 769/02 (13 Dec 2006) para 39.

40 See Section II.A above.

41 ibid.

42 ICRC, Interpretive Guidance, 78–82.

43 Public Committee Against Torture in Israel v Government of Israel, Supreme Court of Israel, HCJ 769/02 (13 Dec 2006) para 40.

44 (1995) 21 EHRR 97.

45 Harvard University Program on Humanitarian Policy and Conflict Research, Policy Brief ‘IHL and Civilian Participation in the Hostilities in the OPT’ (2007, available at http://hpcrresearch.org/pdfs/ParticipationBrief.pdf, 12.

46 N Melzer, Targeted Killing in International Law (Oxford University Press, Oxford, 2008) 278 ff.

47 See, for example, C Greenwood, ‘Historical Development and Legal Basis’ in D Fleck, The Handbook of Humanitarian Law in Armed Conflicts (2nd edn, OUP, Oxford, 2008) §131 & 38; United Kingdom Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press, Oxford, 2004) 21–22; United States Department of the Navy, Commander's Handbook on the Law of Naval Operations (Office of the Chief of Naval Operations, Washington DC, 1989) §5.3.1; Instructions for the Government of Armies of the United States in the Field (Lieber Code) 24 April 1863, art 14.

48 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 8 July 1996, ICJ Rep 1996, 226, para 78.

I am grateful to Hannah Tonkin for assistance with this piece.

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