Coercion, Manipulation, and Harm: Civilian Immunity and Soft War

The phrase "direct participation in hostilities" has a very specific meaning in international humanitarian law (IHL). Those individuals who are clothed with combatant status are authorised to participate directly in hostilities without fear of prosecution, while civilians lose their civilian immunity against direct targeting whilst they participate directly in hostilities. Any civilian activity which amounts to "direct participation in hostilities" temporarily suspends their presumptive civilian protection and exposes them to both direct targeting as a legitimate military target and prosecution for their unauthorised participation in hostilities. Since existing treaty sources of IHL do not provide a definition of what activities amount to "direct participation in hostilities", the ICRC in 2009 released an Interpretive Guide on the Notion of Direct Participation in Hostilities - in the hope of providing a neutral, impartial and balanced interpretation of the longstanding IHL principle of direct participation in hostilities. While not without criticism, the Interpretive Guide aims to respect the customary IHL distinction between "direct participation in hostilities" and mere involvement in the general war effort. The Guide proposes a three-pronged test which establishes a threshold of harm, and requires direct causation together with a belligerent nexus. Collectively, these criteria limit overly-broad targeting policies, while distinguishing occasions of legitimate military targeting from common, criminal activities. Together with these three criteria, the Guide introduces the notion of the revolving door of protection, together with the concept of a "continuous combat function". Both these new concepts have been the subject of criticism, as too the idea that a presumption of non-participation status should apply in cases of doubt. Nevertheless "nothing indicates that the ICRC's interpretive guidance is substantively inaccurate, unbalanced, or otherwise inappropriate, or that its recommendations cannot be realistically translated into operational practice"[1] in a way which will ensure that the fundamental principles of distinction and civilian immunity upon which all of IHL is built are observed.* [1] Melzer 2010 NYU J Int'l L & Pol 915.

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Civilian Immunity

Shooting to Kill ◽

10.1093/acprof:oso/9780190626136.003.0008 ◽

2016 ◽

pp. 185-211

Author(s):

Seumas Miller

Keyword(s):

Civilian Immunity

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Civilian Immunity and the Politics of Legitimacy

Massacres and Morality ◽

10.1093/acprof:oso/9780199288427.003.0002 ◽

2012 ◽

pp. 17-41

Author(s):

Alex J. Bellamy

Keyword(s):

Civilian Immunity

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The Evolution of Civilian Immunity and the Right to Life

Just War Theory and Civilian Casualties ◽

10.1017/9781316995471.003 ◽

2017 ◽

pp. 18-50

Author(s):

Marcus Schulzke

Keyword(s):

Right To Life ◽

The Right ◽

Civilian Immunity

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Introduction

Debating Targeted Killing ◽

10.1093/oso/9780190906917.003.0001 ◽

2020 ◽

pp. 1-8

Author(s):

Tamar Meisels ◽

Jeremy Waldron

Keyword(s):

United States ◽

The United States ◽

Targeted Killing ◽

Short Overview ◽

Government Power ◽

Civilian Immunity

The debate over targeted killing in this volume begins with a joint introduction by the authors, briefly setting out the terms of discussion, and presenting a short overview of the practice—what is targeted killing, and how has it been used, in which conflicts, and by whom. Following some historical examples, mostly from Israel and the United States, the authors distinguish between contemporary signature strikes and personality strikes, and focus their forthcoming debate on the latter, i.e., named killing. While this book touches on a wide array of issues, e.g., civilian immunity, drones, violation of sovereignty, abuse of government power, etc., the authors urge the reader early on to maintain a steadfast focus on the essence of targeted killing debated throughout, namely, the targeting for death of named and identified individuals by our states and leaders.

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Israeli Civilians versus Palestinian Combatants? Reading the Goldstone Report in Light of the Israeli Conception of the Principle of Distinction

Leiden Journal of International Law ◽

10.1017/s0922156511000458 ◽

2011 ◽

Vol 24 (4) ◽

pp. 961-988 ◽

Cited By ~ 3

Author(s):

JEAN-PHILIPPE KOT

Keyword(s):

Code Of Ethics ◽

Case Law ◽

Court Case ◽

Right To Life ◽

Specific Interpretation ◽

Supreme Court Case ◽

Complex Construction ◽

Israeli Supreme Court ◽

Israeli Soldiers ◽

Civilian Immunity

AbstractGoldstone's recent retraction can leave the reader of the report that bears his name somewhat perplexed. Indeed, if the deliberate intent to target civilians could be discussed in some specific attacks listed, such a report nevertheless describes a pattern of behaviour that cannot be swept aside without disregarding the order of priorities set by the Israeli legal system itself. Through analysis of the new Israeli military code of ethics as well as the Israeli Supreme Court case law, this paper examines how civilians in Gaza were deliberately put at risk by a specific interpretation breaking down the flat rule of civilian immunity into a more complex construction opposing the Israeli soldiers’ right to life to the rights of an ‘enemy population’.

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