Non-state actors and Direct Participation in Hostilities. Giulio Bartolini University of Roma Tre

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1 Non-state actors and Direct Participation in Hostilities Giulio Bartolini University of Roma Tre

2 The involvement of non-state actors in armed conflicts. Different kinds of non-state actors : A) Organised armed groups involved in non-international armed conflicts; B) International organizations (eg. UN operations in Congo) C) Private military and security companies

3 Organised armed groups and IHL Non-international armed conflicts are the predominant form of warfare in this century. They can include other cases apart from classic noninternational armed conflicts (i.e. governmental armed forces vs. rebel groups) The existence of a non-international armed conflict permits the application of IHL with less restrictive normative requirements than human rights obligations Several individuals are linked to organised armed groups. Who could be a lawful target? The targeting process of members of organised armed groups in non-international armed conflicts is based on the notion of direct participation in hostilities

4 Elements for identifying a non-international armed conflict 2 CUMULATIVE requirements developed by practice, doctrine and and case-law. ICRC s Report 2011: two factual criteria are deemed indispensable for classifying a situation of violence as a Common Article 3 NIAC: i) the parties involved must demonstrate a certain level of organization, and ii) the violence must reach a certain level of intensity In the absence of these criteria IHL is not applicable and we must apply a lawenforcement approach

5 Current problems in the qualification of noninternational armed conflicts ICRC s report to the International Conference of the Red Cross (2011): 7 categories of NIACs Multinational non-international armed conflict. Support provided by third States to a government involved in a non-international armed conflict (eg. Afghanistan, Iraq after the end of belligerent occupation) Foreign troops are qualified as party to the NIAC Transnational armed conflict against non state actors. NIAC having an extraterritorial element: A) Spill over of ongoing NIAC to neighboring States Eg. Turkey s operation in Iraqi Kurdistan 90s- 00s; Congo-Uganda; Pakistan-Afghanistan

6 Transnational terrorist organisations In anti-terrorism activities State have traditionally excluded the relevance of IHL Eg.: The term "armed conflict is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation (UK reservation to art. 1.4 I AP) The recent trend towards an overapplication of IHL in order to combact transnational terrorist activities. The qualification of activities against terrorist groups as part of a non-international armed conflict Ratio: IHL is considered more flexible than human rights law, mainly in relation with the use of lethal force and the status of detained persons

7 Transnational terrorist organisations There could be cases of involvement of such groups in ongoing NIAC (eg. Mali, Afghanistan- Pakistan), thus lethal actions against these groups are subjected to IHL - The need to be a Party to the conflict: The Special Rapporteur accepts in principle that a non-state armed group, including one called a terrorist organization, if organized as an armed force, is capable of being engaged in a transborder armed conflict, albeit technically a non-international one (M. Scheinin, Special Rapporteur UN Human Rights Council on protection of human rights while countering terrorism, 2007). - Plus intensity isolated acts of terrorism may not reach the threshold of armed conflict (ICTY, Boškoski, 2008); UK Reservation to art. 1.4 I AP

8 Targeting of participants in noninternational armed conflicts In international armed conflicts different categories of lawful/unlawful targets (eg. Combatants, i.e. members of the armed forces; Civilians; Civilians taking a direct part in hostilities; etc.) In NIAC there are not clear treaty provisions Art. 13 II AP Civilians shall enjoy the protection (against the effect of hostilities) unless and for such time as they take a direct part in hostilities The main problems in the targeting process in NIAC: Legal Problem: A proper definition of the term direct participation in hostilities does not exist (ICRC Customary International Humanitarian Law, 2005) Factual Problem: Several individuals are related to organised armed gropus (fighting forces and supportive segments of the civilian population, such as political and humanitarian wings)

9 Definition of the term: Direct participation in hostilities A first analysis: the 2006 Judgment of the Israeli Supreme Court on the targeted killings An extensive work by the ICRC with a group of experts ( ). The adoption of the Interpretative Guidance on the notion of direct participation in hostilities in 2009 A document of 90 pages

10 Main categories developed by the ICRC Interpretative Guidance Members of the Armed Forces (lawful target under IHL. Membership approach) Members of organised armed groups: consist only of individuals whose continuous function it is to take a direct part in hostilities ("continuous combat function"). They are a 24-h target. Functional approach Civilians taking a direct part in hostilities but on a sporadic basis with the possibility to attack them only for such time as they are directly involved in hostilities Civilians not taking a direct part in hostilities (unlawful target) Main problems: difficulties to distinguish between different individuals related to organised armed groups; Asimmetry with member of the armed forces

11 ICRC, Interpretative Guidance on DPH, 2009 Principle V. Constitutive elements of direct participation in hostilities. In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria: 1) The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and 2) there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3) the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)

12 Direct Causation and examples of DPH A clear direct causation. Examples of DPH: A) Acts against the enemy armed forces infliction of death, injury, or destruction on military personnel and objects sabotage and other armed or unarmed activities restricting or disturbing deployments, logistics and communications capturing or otherwise establishing or exercising control over military personnel objects and territory to the detriment of the adversary guarding captured military personnel of the adversary Computer Network Attacks B) Acts against protected persons even in the abscence of military harm are attacks directed against civilians and civilian objects (sniper attacks against civilians, bombardment or shelling of civilian villages). The necessity to take into account current cases of violence against civilians, providing with the possibility to act against responsible for those acts

13 The INDIRECT participation in hostilites individual conduct that merely builds up or maintains the capacity of a party to harm its adversary, or which otherwise only indirectly causes harm Examples: depriving it of financial assets,or providing its adversary with supplies and services (such as electricity, fuel, construction material, finances and financial services) ; Propaganda; scientific research; financial support; general military training; production of weapons (IEDs?); welfare activities; transport unless carried out as an integral part of a specific military operation designed to directly cause the required harm

14 Human Shields A) «Involuntary» human shields: protection B) voluntary human shields. Different evaluations: - Some scholars (Indirect PH) - DPH (Israeli Supreme Court; 2003 US declarations; some scholars) - ICRC, field vs. air operations only individuals acting as a physical obstacle to the military activities of the approaching opposing party, particularly in cases of ground operations in urban environment, can be qualified as taking a direct part in hostilities. In other circumstances, such as air operations or artillery attacks, such individuals do not impair the possibility to target the military objective at issue and do not produce any harm on the attacking forces. Thus, in such cases they would only represent a legal obstacle, but would maintain their protection

15 Direct causation and complex military operations DPH Guidance direct causation should be understood as meaning that the harm in question must be brought about in one causal step Complex military operations: there could be cases in which the civilian is not directly responsible for the final harm against the enemy armed forces or civilians but he can still be considered as taking a direct part in hostilities.

16 Complex military operations In cases of complex military operations for being qualified as taking a direct part in hostilities it is necessary to establish a role in tactical operations Eg.: Use of drones Tactical intelligence (eg. Lookout activities, the case of La piccola vedetta lombarda ); Military advisers in tactical operations A possible relevance for geographical elements: Transport The delivery by a civilian truck driver of ammunition to an active firing position at the front line is an integral part of ongoing combat operations

17 Principle VII. Temporal scope of the loss of protection Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities, whereas members of organized armed groups belonging to a non-state party to an armed conflict cease to be civilians, and lose protection against direct attack, for as long as they assume their continuous combat function

18 Main criticisms to the ICRC Interpretative Guidance Difficulties to ascertain activities carried out by supporters of organised armed groups in NIAC Necessity to rely on credible intelligence for planned attacks Uncorrect differentiation between possibilities to attack members of the governmental armed forces (membership approach) and organised armed groups (functional approach) Eg. Logistic functions

19 US Position: 2013 Operational Law Handbook To date, the United States has not adopted the complex ICRC position, nor its vocabulary. Instead, the United States relies on a case-by-case approach to both organized armed groups and individuals. U.S. forces use a functional DPH analysis based on the criticality of contributions to the enemy war effort and the notions of hostile act and hostile intent as defined in the Standing Rules of Engagement. After considering factors such as intelligence, threat assessments, the conflict s maturity, specific function(s) performed and individual acts and intent, appropriate senior authorities may designate groups as hostile. Those groups designated as hostile become status-based targets, subject to attack or capture at any time if operating on active battlefields or in areas where authorities consent or are unwilling or unable to capture or control them