CHAPTER 1 INTRODUCTION
4.3 A brief introduction to the ICRC's Interpretive Guide on the notion of direct participation in hostilities under IHL
i. The drafting process and the legal implications of the guide Between 2003 and 2008, more than forty legal experts (drawn from
‘academic, military, governmental, and non- governmental circles’48) came
Germany; India; Indonesia; Italy; Jordan; Kenya; Madagascar; Malaysia; Netherlands; New Zealand; Spain; Sweden; Togo; United Kingdom; United States; Yugoslavia (Henckaerts and Doswald-Beck Customary International Humanitarian Law at 22).
40 (2006) HCJ 769/02 at para 34.
41 Ibid.
42 These acts were to be distinguished from ‘civilians whose activities merely support the adverse party’s war or military effort or otherwise only indirectly participate in hostilities such as selling goods to one or more of the armed parties, expressing sympathy for the cause of one of the parties or, even more clearly, failing to act to prevent an incursion by one of the armed parties’ (Henckaerts and Doswald-Beck Customary International Humanitarian Law at 22). The Special Representative of the U.N. Commission on Human Rights for El Salvador had also made reference to the need to distinguish between direct forms of participation and indirect participation (Idem at 23).
43 Inter-American Commission on Human Rights, Third Report on Human Rights in Colombia (Idem at 22).
44 Ibid.
45 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under
International Humanitarian Law at 41; Henckaerts and Doswald-Beck Customary International Humanitarian Law at 23.
46 Henckaerts and Doswald-Beck Customary International Humanitarian Law at 23.
47 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 41.
48 The ICRC ‘is an extremely important institution for IHL purposes’ (Fenrick ‘ICRC Guidance on Direct Participation in Hostilities’ at 288), some go so far as to call it the ‘custodian of IHL’
(Damien Van der Toorn (2009) ‘“Direct Participation in Hostilities”: A Legal and Practical
together on five occasions at the invitation of the ICRC. The resultant discussions informed the ICRC’s Interpretive Guide49 on the notion of direct participation in hostilities under IHL50. Initially the ICRC had sought a
unanimous consensus at these expert meetings, but it soon became apparent (when some experts wanted to remove their names from the final report51) that seeking unanimity might scuttle the whole project52. In the end, the ICRC elected to omit all the names of the external experts, and instead had the Assembly of the ICRC adopt the final version of the guide on 26 February 200953.
The ICRC’s Interpretive Guide was not intended to change the existing and ‘binding rules of customary or treaty IHL’54, but rather to offer a
‘comprehensive legal analysis’55 as to how the term ‘direct participation in hostilities’ was to be interpreted, giving careful consideration to balancing both
‘humanitarian and military interests’56. The ten recommendations (supported by commentary57) strove to ‘reflect the ICRC’s institutional position as to how existing IHL should be interpreted in light of the circumstances prevailing in contemporary armed conflicts’58. While the Interpretive Guide is not legally binding59, the ICRC had hoped that their recommendations would have
‘substantial persuasive effect’60 ‘for States, non-State actors, practitioners, and academics alike’61. Some argue that the Interpretive Guide ‘may even be viewed as a secondary source of international law… analogous to writings of the “most highly qualified publicists”’62. Until it becomes binding, or is
acknowledged as having crystallised into customary IHL, Fenrick warns that ‘it is unlikely that the guidance will be adopted in totality by all legal advisers to
Evaluation of the ICRC Guidance’ available at
http://works.bepress.com/damien_van_der_toorn/1 (accessed 14 July 2012) at 22).
49 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 9.
50 The Interpretive Guide also draws on ‘the ICRC’s institutional expertise… as a
humanitarian organisation, having been operational for almost 150 years in countless armed conflicts all over the world’ (Nils Melzer ‘Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities’ (2010) 42 International Law and Politics 831 at 914).
51 Adam Roberts ‘The Civilian in Modern War’ (2009) 12 Yearbook of International Humanitarian Law 13 at 41.
52 Fenrick ‘ICRC Guidance on Direct Participation in Hostilities’ at 288.
53 Ibid.
54 The Interpretive Guide drew on the following sources of law: customary IHL; treaty IHL (including the ‘travaux préparatoires of treaties); international jurisprudence; military manuals and standard works of legal doctrine’ (ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 9).
55 Idem at 10.
56 Ibid.
57 Fenrick ‘ICRC Guidance on Direct Participation in Hostilities’ at 288.
58 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 9.
59 ‘A legally binding interpretation of IHL can only be formulated by a competent judicial organ or, collectively, by the States themselves’ (Idem at 10).
60 Fenrick ‘ICRC Guidance on Direct Participation in Hostilities’ at 300.
61 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 10.
62 Van der Toorn ‘“Direct Participation in Hostilities”: A Legal and Practical Evaluation of the ICRC Guidance’ at 22.
foreign ministries and defence departments’63 unless it can be shown that these recommendations are ‘well researched, well thought out, relevant and persuasive’64.
ii. Introductory comments on the guide’s limitations & controversies
It is worth stating at the outset that the Interpretive Guide makes it explicit that the document only speaks to the notion of direct participation in hostilities in so far as it impacts on decisions regarding ‘targeting and military attacks’; it does not propose to deal with issues of ‘detention65 or combatant immunity’66.
Once it is ascertained that an issue of direct participation has an impact on targeting decisions, the first enquiry that the Interpretive Guide directs is to whether the ‘specific hostile act’67 falls within the ambit of those restricted acts which amount to direct participation in hostilities68. Determining which specific activities amount to direct participation in hostilities is not dependent on one’s
‘status, function, or affiliation’69, neither does it matter whether the act is carried out by civilians or members of the armed forces ‘on a spontaneous, sporadic, or unorganised basis; or as part of a continuous combat function assumed for an organised armed force or group belonging to a party to the conflict’70.
Even prior to the first meeting of the experts it was apparent that there were very divergent opinions on how one should interpret the concept of direct participation in hostilities. Some academics adopted a ‘more restrictive interpretation of the term direct participation in hostilities’71, equating ‘actual combat operations with direct participation in hostilities’72. Others believed a more liberal interpretation was appropriate73. ‘The liberal school of thought
63 Fenrick ‘ICRC Guidance on Direct Participation in Hostilities’ at 300.
64 Idem at 288.
65 ‘Its conclusions are not intended to serve as a basis for interpreting IHL regulating the status, rights and protections of persons outside the conduct of hostilities, such as those deprived of their liberty’ (Kenneth Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC ‘Direct Participation in Hostilities’ Interpretive Guide’ (2010) 42 International Law and Politics 641 at 670).
66 Goodman and Jinks ‘The ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law: An Introduction to the Forum’ at 638.
67 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under
International Humanitarian Law at 45. This will be dealt with in greater detail later on in this chapter.
68 ‘The notion of direct participation in hostilities refers to specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict’ (ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 46).
69 Idem at 10.
70 Ibid.
71 See for example: Orna Ben-Naftali and Keren R Michaeli ‘We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings’ (2003) Spring Cornell International Law Journal 233; Roy S. Schondorf ‘Are “Targeted Killings” Unlawful? The Israeli Supreme Court’s Response: A Preliminary Assessment’ (2007) May Journal of International Criminal Justice 301.
72 Melzer Targeted Killings in International Law at 335.
73 See for example: Michael N Schmitt (2004) Direct Participation in Hostilities and 21st Century Armed Conflict available at http://www.michaelschmitt.org/images/Schmitfinal.pdf (accessed 15 May 2012); Ricou Heaton ‘Civilians at War: Re-examining the Status of Civilians Accompanying the Armed Forces’ 155.
proposed an approach… which essentially encompasses all conduct that functionally corresponds to that of government armed forces, including not only the actual conduct of hostilities, but also the activities such as planning, organising, recruiting and assuming logistical functions’74. These competing approaches were not new to the ICRC. Already in the commentary on AP I the ICRC noted that ‘to restrict this concept to combat and active military operations would be too narrow, while extending it to the entire war effort would be too broad’75.
Given this background it was not surprising that ‘key features of the guidance have proven highly controversial’76. At the heart of much of the generalised criticism leveled at the Interpretive Guide is its alleged failure to adequately balance humanitarian concerns and military necessity in a way which ‘adequately reflect[s] the key object and purpose of the Geneva Conventions and Additional Protocols’77. Schmitt and Boothby are critical of what they claim is an overly restrictive interpretation78. Boothby argues that
‘the ICRC interprets the concepts of preparation, deployment, and return too restrictively’79, and Schmitt is concerned with the fact that the definition
‘excludes support activities not directly causing harm to the enemy’80. On the contrary, ‘other experts would criticise the Interpretive Guide’s definition as too generous because, in certain circumstances, it might allow the targeting of civilians who do not pose an immediate threat to the enemy’81. Some
academics have concluded that ‘the deficiencies identified demonstrate a general failure to fully appreciate the operational complexity of modern warfare’82. Others have questioned whether the Interpretive Guide achieves what it set out to do, or whether it has merely ‘raised more questions than it answers’83. Some have argued that, rather than ‘re-stating exiting law’84 in a manner that would prove useful for practitioners and courts, terms like
‘”revolving door of protection,” “continuous combat function,” and “persistent recurring basis” inject new, confusing, and difficult-to-justify concepts into the
74 As Melzer notes that the liberal approach ‘stands in contradiction not only to the prevailing opinion in the doctrine, but also to State practice, and to the express distinction drawn in convention law between direct participation in hostilities on the one hand, and work of a military character, activities in support of military operations and an activity linked to the military effort, on the other hand’ (Melzer Targeted Killings in International Law at 338-339).
75 ‘In modern warfare the whole population participates in the war effort to some extent, albeit indirectly. The population cannot on this ground be considered to be combatants’ (Idem at 336).
76 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 698.
77 Van der Toorn ‘“Direct Participation in Hostilities”: A Legal and Practical Evaluation of the ICRC Guidance’ at 45.
78 Ibid.
79 Boothby ‘“And For Such Time As”: The Time Dimensions to Direct Participation in Hostilities’ (2010) 42 International Law and Politics 741 at 743.
80 Melzer ‘Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities’ at 835.
81 Ibid.
82 Schmitt ‘Deconstructing Direct Participation in hostilities: the Constituent Elements’ at 699.
83 Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 694.
84 Melzer ‘Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities’ at 837.
lexicon of IHL’85.
In response to these criticisms, Melzer maintains that the Interpretive Guide adopted a neutral, impartial and balanced approach86, resisting proposals coming from both extremes while ensuring ‘a clear and coherent interpretation of IHL consistent with its underlying purposes and principles’87. Aside from these differences in the degree of interpretation aside, there is much less controversy around the all important heart of the guidance:
determining how one defines ‘direct participation in hostilities’88. All in all, after careful consideration of the critiques prepared by Watkin, Schmitt, Boothby, and Parks, nothing indicates that the ICRC’s Interpretive Guide is
‘substantively inaccurate, unbalanced, or otherwise inappropriate, or that its recommendations cannot be realistically translated into operational
practice’89.
4.4 The specific hostile acts which amount to direct participation in