Targeting People: Direct Participation in the Conduct of Hostilities DR. GENTIAN ZYBERI NORWEGIAN CENTRE FOR HUMAN RIGHTS UNIVERSITY OF OSLO

Targeting People: Direct Participation in the Conduct of Hostilities DR. GENTIAN ZYBERI NORWEGIAN CENTRE FOR HUMAN RIGHTS UNIVERSITY OF OSLO

Structure: Main Issues Targeting People: Direct Participation in the Conduct of Hostilities: 2 Concept of civilian; Parameters of direct participation; Modalities governing loss of protection.

Civilians vs. Combatants Status matters! ICRC Customary Study 2005, Rule 5: Civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians. [IAC/NIAC] Rule 6: Civilians are protected against attack, unless and for such time as they take a direct part in hostilities. [IAC/NIAC] Circular definition: AP I, art. 50 (2) the civilian population comprises all persons who are civilians! 3

Categories of Protected Persons General protection/idea of IHL/LOAC: everyone who is not a combatant should be spared! Civilians; Wounded, sick and shipwrecked; Persons hors de combat; Prisoners of war (POWs); Religious personnel (chaplains etc.); Medical personnel; Red Cross personnel; Peacekeeping forces. 4

Distinction and Proportionality ICRC Customary Study 2005, Rule 1: The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians. [IAC/NIAC] AP I, art. 48: parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and direct their operations only against military objectives. AP I, art. 51(5)(b): an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 5

Questions Addressed in the ICRC Interpretive Guidance of 2009 6 I. Concept of Civilian Determines the circle of persons who may not be directly attacked unless and for such time as they take a direct part in hostilities II. Concept of Direct Participation in Hostilities Determines the individual conduct which entails loss of civilian protection against direct attack III. Modalities of Suspension of Protection Determine the modalities according to which civilian lose and regain protection against direct attack: v Duration of loss of protection; v Precautions and presumptions in situations of doubt; v Restraints on force used against lawful military targets; v Consequences of regaining civilian protection.

Concept of Direct Participation in Hostilities ICRC, Interpretive Guidance, 2009, p. 45: Direct Participation in Hostilities (DPH) refers to specific, hostile acts carried out by individuals as part of conduct of hostilities between parties to an armed conflict. Interpreted synonymously in IAC and NIAC. 7 Treaty terms of direct and active indicate the same quality and degree of individual participation in hostilities.

Elements of Direct Participation in Hostilities 8 1. Act must be likely to adversely affect the military operations or military capacity of a party to an AC, or alternatively to inflict death, injury or destruction on persons or objects protected against direct attack (threshold of harm). 2. A direct causal link between the act and the expected harm (direct causation). 3. Act specifically designed to directly cause the required threshold of harm in support to a party to the conflict, to the detriment of another (belligerent nexus).

Threshold of Harm 9 Interpretive Guidance, p.47: Direct Participant reaches threshold either by causing harm of specifically military nature or by inflicting death, injury, or destruction on persons or objects protected against direct attack. Harm does not need to materialize; what s important is the objective likelihood that act will result in such harm. Acts of sabotage; cyber warfare; passing information to the adversary (targeting information) would also qualify.

Direct Causation 10 Must be a direct causal link between specific act and harm likely to result from it, or from a coordinated military operation of which that act constitutes an integral part. Interpretive Guidance, p. 51. The harm in question must be brought about in one causal step. Interpretive Guidance, p. 53.

Belligerent Nexus Direct Participation in Hostilities is restricted to specific acts that are so closely related to the hostilities conducted between parties to AC that they constitute integral part of conflict. Interpretive Guidance, p. 58. Act must be designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another. Interpretive Guidance, p. 58. 11 Objective purpose of the act, Interpretive Guidance, p. 59.

Restraints on Use of Force in Attack - In addition to restraints imposed by IHL on specific means and methods of warfare, - And without prejudice to further restrictions that may arise under other applicable branches of international law, - The kind and degree of force permissible against unprotected persons, - Must not exceed what is actually necessary, - To accomplish legitimate military purpose in prevailing circumstances. 12 - In other words If you can capture them don t kill them. Interpretive Guidance, p. 77.

Elementary Consideration of Humanity 13 While operating forces can hardly be required to take additional risks for themselves or civilians in order to capture armed enemy; It would defy basic notions of humanity to kill the enemy or refrain from giving them the opportunity to surrender where there is manifestly no necessity for the use of lethal force. Interpretive Guidance, p. 82.

Protection Against the Effect of Hostilities 14 Combatants Have the right to directly participate in hostilities (art. 43 2 API) Can be directly targeted Are entitled to POW status in case of capture Cannot be prosecuted for their participation. Civilians Do not have the right to directly participate in hostilities Are protected against the effect of hostilities (art. 51 1 AP. I) Lose their immunity against attack if (and for such time as) they directly participate (art. 51 3 AP. I) Can be prosecuted for a mere participation in hostilities.

Summary International Armed Conflict Combatants (all persons who have the right to engage in DPH including participants in a levée en masse) Civilians (all persons who are neither members of the armed forces nor participants in a levée en masse) Currently engaging in DPH (not protected) Currently not engaging in DPH (protected) 15

Summary of Conclusions re the Interpretive Guidance 16 I. Civilians: All persons who are not members of armed forces or organized armed groups of a party to the conflict. I. Civilians: All persons who are not members of armed forces or organized armed groups of a party to the conflict. Ø Members of organized armed groups: Persons assuming a continuous combat function within the group. II. Direct Participation in Hostilities: Specific acts designed to support a party to an armed conflict by directly causing harm to another party, either by: Ø directly adversely affecting its military operations or military capacity, or by Ø directly inflicting death, injury or destruction on persons or objects protected against direct attack. III. Modalities of Loss of Protection: Duration of loss of protection Precautions and presumptions in situations of doubt Restraints on force used against lawful military targets Consequences of regaining civilian protection

Concluding Remarks Today, more than ever, everything feasible must be done to protect civilians against erroneous or arbitrary targeting. Many problems are created by the lack of knowledge/ compliance with IHL by non-state actors! At the same time, there are several instances of violation of IHL rules by government armed forces. Enforcement of IHL provisions remains problematic. 17 ICRC s Interpretive Guidance will hopefully prove useful to belligerents in ensuring that those not directly participating in hostilities receive the protection they are entitled to under IHL/LOAC.

Relevant Literature Alexandra Boivin, The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare, Research Paper Series (2/2006) ICRC, Basic rules of the Geneva Conventions and their Additional Protocols, 1985. ICRC Customary International Humanitarian Law Study, 2005 Sassoli and Bouvier, How Does Law Protect in War, Third edition (ICRC, 2011). 18