Direct Participation in Hostilities and Its Effect on Proportionality

Unlike members of the armed forces and combatants who can be targeted, civilians are protected from direct attack. However, civilians do not always enjoy protection. When civilians take a direct part in the hostilities, such as by taking up arms against the enemy, they lose their civilian protection and can be lawfully targeted. Classifying a civilian who is directly participating in hostilities as such is relevant to proportionality as well as to the principle of distinction, as it changes the proportionality analysis in two complementary ways. First, an attack on a civilian that is taking a direct part in hostilities would arguably augment the expected military advantage of the strike. Second, such civilians do not enjoy protection from attack and are also not considered civilians in the proportionality assessment. This means that classifying civilians as direct participants in hostilities might make an otherwise disproportionate attack proportionate, and vice versa. This chapter explains the concept of direct participation in hostilities, and its relevance to the proportionality analysis.

Returning foreign fighters: The case of Denmark

International Review of the Red Cross ◽

10.1017/s1816383118000656 ◽

2018 ◽

Vol 100 (907-909) ◽

pp. 315-336

Author(s):

Helene Højfeldt Jakobsen

Keyword(s):

Criminal Law ◽

Armed Conflict ◽

Armed Forces ◽

Islamic State ◽

Direct Part ◽

Humanitarian Law ◽

Armed Group ◽

Legal Regimes ◽

Foreign Fighters

AbstractThis article considers which legal regimes apply in cases where a Danish citizen and/or resident returns from Syria or Iraq after having taken part in the armed conflict on behalf of the group known as Islamic State, and continues his/her affiliation with the armed group. The article argues that international humanitarian law currently applies to the Danish territory and that a Danish foreign fighter may continue to be considered as taking a direct part in hostilities after having returned from Iraq or Syria. The article then considers the application of Danish criminal law to returned foreign fighters and argues that Danish counterterrorism laws do not apply to members of the armed forces of an armed group that is party to an armed conflict with Denmark.

Converting treaties into tactics on military operations

International Review of the Red Cross ◽

10.1017/s1816383115000703 ◽

2014 ◽

Vol 96 (895-896) ◽

pp. 919-942 ◽

Cited By ~ 1

Author(s):

Andrew J. Carswell

Keyword(s):

International Law ◽

Armed Forces ◽

Armed Conflicts ◽

Military Force ◽

Military Operations ◽

Customary International Law ◽

Law Of Armed Conflict ◽

Definition Of ◽

Operational Guidance ◽

AbstractDespite widespread State acceptance of the international law governing military use of force across the spectrum of operations, the humanitarian reality in today's armed conflicts and other situations of violence worldwide is troubling. The structure and incentives of armed forces dictate the need to more systematically integrate that law into operational practice. However, treaty and customary international law is not easily translated into coherent operational guidance and rules of engagement (RoE), a problem that is exacerbated by differences of language and perspective between the armed forces and neutral humanitarian actors with a stake in the law's implementation. The author examines the operative language of RoE with a view to facilitating the work of accurately integrating relevant law of armed conflict and human rights law norms. The analysis highlights three crucial debates surrounding the use of military force and their practical consequences for operations: the dividing line between the conduct of hostilities and law enforcement frameworks, the definition of membership in an organized armed group for the purpose of lethal targeting, and the debate surrounding civilian direct participation in hostilities and the consequent loss of protection against direct attack.

Individual Status under International Humanitarian Law

To Serve the Enemy ◽

10.1093/oso/9780198788898.003.0004 ◽

2019 ◽

pp. 102-130

Author(s):

Shane Darcy

Keyword(s):

Geneva Convention ◽

Armed Forces ◽

The Other ◽

Humanitarian Law ◽

Prisoner Of War ◽

Direct Participation ◽

Occupied Territory

Chapter 3 examines issues regarding status, beginning with civilian informers as spies, before turning to those that might join or fight alongside an enemy’s armed forces or provide other forms of assistance, such as interpreters. The chapter considers the issue of direct participation in hostilities as well as the concept of protected persons under the Fourth Geneva Convention, the nationality requirement of which may preclude the treaty’s full application to local civilian informers working for an occupying power in occupied territory. The chapter finally examines the question of prisoner of war status for members of the armed forces who may have cooperated with an adversary, including by joining the forces of the other side.

Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities: The End of Jus in Bello Proportionality as We Know It?

Israel Law Review ◽

10.1017/s0021223711000069 ◽

2012 ◽

Vol 45 (1) ◽

pp. 35-52 ◽

Cited By ~ 4

Author(s):

Jann K Kleffner

Keyword(s):

International Law ◽

Present Article ◽

Armed Conflict ◽

Use Of Force ◽

Humanitarian Law ◽

Jus In Bello ◽

Direct Participation ◽

Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities asserts: ‘In addition to the restraints imposed by international humanitarian law 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 which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances’. The present article scrutinises arguments that have been, or can be, advanced in favour of and against a ‘least harmful means’ requirement for the use of force in situations of armed conflict as suggested in Section IX. The principal aim of the article is to examine the question whether such an additional proportionality requirement forms part of the applicable international lex lata.

THE MILITARY AND INTERNAL SECURITY OPERATIONS IN LATIN AMERICA

Revista Política y Estrategia ◽

10.26797/rpye.v0i130.131 ◽

2017 ◽

pp. 101

Author(s):

DAVID PION-BERLIN

Keyword(s):

Latin America ◽

21St Century ◽

Armed Forces ◽

Police Work ◽

Collateral Damage ◽

Internal Security ◽

Precise Nature ◽

Civilian Protection ◽

Security Operations ◽

The Military

The nature of 21st century threats to internal security require, in certain situations, the introduction of the armed forces. Can the military be used effectively, and in ways that are consistent with standards of humane conduct, and that will minimize collateral damage? It very much depends on the precise nature of the operation. It is important to know whether an operation coincides with a military’s professional skills and preferences. The probability of operational success and civilian protection is enhanced when the operation is congruent with military capabilities, where soldiers can confine themselves to military-like operations and not engage in police work.

Direct Participation in Hostilities – A Discussion of the ICRC Interpretive Guidance

Journal of International Humanitarian Legal Studies ◽

10.1163/187815210x12766020139929 ◽

2010 ◽

Vol 1 (1) ◽

pp. 143-164 ◽

Cited By ~ 2

Author(s):

William Boothby

Keyword(s):

Armed Forces ◽

The Other ◽

Armed Groups ◽

Direct Participation ◽

The One

AbstractThe ICRC's published 'Interpretive Guidance on the Notion of Direct Participation' by civilians in hostilities contributes usefully to the debate but is flawed. It creates an imbalance between members of the armed forces on the one hand, who are targetable at all times, and members of organised armed groups who do not have a continuous combat function, and civilians who persistently participate in hostilities on the other, who are said to be protected during intervals between specific acts of hostility. This imbalance is exacerbated by assertions that there is a presumption at law that civilians are not directly participating, that to be DPH there must be a single causal step linking the civilian's activity with the hostilities, that voluntary human shields may not be direct participants and that periods of preparation for, deployment towards and return from acts of direct participation, during which a civilian is liable to lawful attack, must be interpreted restrictively. This article takes aspects of the interpretive guidance in turn, analysing them to determine their legal and practical acceptability. It concludes that states must consider the guidance with some caution before determining their own position on this vexed issue.

Strengthening the Principle of Distinction?

Journal of International Humanitarian Legal Studies ◽

10.1163/18781527-00602004 ◽

2015 ◽

Vol 6 (2) ◽

pp. 377-413 ◽

Cited By ~ 1

Author(s):

Laura Hofmann

Keyword(s):

Continuous Function ◽

International Committee ◽

Armed Conflicts ◽

Red Cross ◽

Direct Part ◽

Armed Groups ◽

Direct Participation

The primary impetus for the Interpretive Guidance on the Notion of Direct Participation in Hostilities by the International Committee of the Red Cross was the need for an accepted understanding of the notion of ‘direct participation in hostilities’. The Interpretive Guidance recommends that in non-international armed conflicts organised armed groups consist only of persons whose continuous function for the groups involves taking direct part in hostilities. The objective of this article is to assess to what extent the ‘continuous combat function’ category strengthens the protection of civilians under the principle of distinction.

Armed Forces Operation in the Scope of the Civilian Health Protection during Peacekeeping and Stabilization Missions: A Short Review

Safety & Defense ◽

10.37105/sd.9 ◽

2018 ◽

Vol 4 ◽

pp. 27-30

Author(s):

Goniewicz Krzysztof ◽

Goniewicz Mariusz ◽

Dorota Lasota

Keyword(s):

International Relations ◽

Armed Conflict ◽

Armed Forces ◽

Short Review ◽

Health Protection ◽

Armed Conflicts ◽

Civilian Population ◽

Civilian Protection

Nowadays, the diversity of armed conflicts determines the participants of international relations to undertake various actions in the scope of civilian health protection. It should be noted that tasks resulting from civilian protection are fulfilled in numerous manners, depending on the situation of the armed conflict. The article presents actions undertaken by the armed forces in the scope of the civilian health protection during peacekeeping and stabilization missions. There are also presented engagement of Polish armed forces in Afghanistan and their actions to improve the civilian population.

The ‘Revolving Door’ of Direct Participation in Hostilities

Journal of International Humanitarian Legal Studies ◽

10.1163/18781527-bja10022 ◽

2020 ◽

Vol 11 (2) ◽

pp. 410-446

Author(s):

Alessandro Silvestri

Keyword(s):

Urban Areas ◽

Legal Status ◽

Physical Nature ◽

Revolving Door ◽

Humanitarian Law ◽

Military Operations ◽

Direct Participation ◽

Aid Decision ◽

Abstract Contemporary trends of warfare have witnessed a so-called ‘civilian footprint’ in support of military operations while battlefields have increasingly shifted towards urban areas. International humanitarian law established a framework through which civilians are protected from direct attack ‘unless and for such time as they take a direct part in hostilities’. Three key areas have traditionally been associated with the analysis of direct participation in hostilities (‘dph’): civilian legal status, what behaviour amounts to dph, and what modalities govern this loss of protection. This article will focus on the latter and attempt to create a feasible and practical framework capable of harnessing the temporal scope of dph and limit the so-called ‘revolving door phenomenon’. The framework developed in this article will account for criteria that could and should aid decision-making on the battlefield, most notably causal associations between individuals and dph acts and the physical or non-physical nature of dph acts’ deployments.

Synopsis VII—Combatant and prisoner-of-war status

International Review of the Red Cross ◽

10.1017/s0020860400072211 ◽

1989 ◽

Vol 29 (268) ◽

pp. 42-50

Author(s):

Jean de Preux

Keyword(s):

Military Personnel ◽

Armed Forces ◽

Medical Personnel ◽

Direct Part ◽

Prisoner Of War ◽

Civil Defence

Only the members of the armed forces of a Party to a conflict (other than medical personnel, chaplains and military personnel engaged in civil defence) are combatants (Hague Regulations, Art. 1 and 3; P. I, Art. 43 and 67).Combatants are entitled to take direct part in the hostilities (P. I, Art. 43), i.e. to commit acts of war which are intended by their nature or their purpose to hit specifically the combatants and other military objectives of the enemy armed forces.Any combatant who falls into the power of an adverse Party is a prisoner of war (P. I, Art. 4).