CHAPTER 1 INTRODUCTION
4.6 The ‘continuous combat function’ and its implications for civilians participating directly in hostilities
i. The rationale behind the concept of the ‘continuous combat function’
The term ‘continuous combat function’ was first coined337 at the expert discussions which gave rise to the ICRC’s Interpretive Guide338. During the discussions the view was expressed that, since the revolving door of
protection was only intended to apply to those spontaneous and unorganised acts of participation, it should not also be applied to ‘members of organised armed groups belonging to a non-State party’339, since their activities were oftentimes neither unorganised nor spontaneous340. If the revolving door were to be applied to such ‘organised armed groups’ (who fell short of the
requirements for full combatant status) it would give these ‘farmers by day and fighters by night’… a significant operational advantage’341 over the ‘State armed groups engaging in hostilies against them, who as a result of their combatant status ‘can be attacked on a continuous basis’342. While there is under IHL no ‘express right for civilians to directly participate in hostilities’, that does not necessarily translate into ‘an international prohibition (or
criminalisation) of such participation’343. Nevertheless, at the expert meetings the concern was raised that such inequality between the States’ armed forces and organised non-State armed groups would ‘undermine respect for IHL, thereby endangering innocent civilians’344. Rogers agrees that ‘there is certainly a case for arguing that a person who becomes a member of a guerrilla group, or armed faction that is involved in attacks against enemy armed forces, forfeits his protected status for so long as he participates in the activities of the group’345.
As a consequence of these concerns, the general consensus at the expert discussion was that there was a legitimate and defensible346 need for a special legal regime applicable to ‘organised armed groups’ who participated in hostilities in a more organised, structured and continuous manner, as compared with those civilians who only participated intermittently in hostilities,
337 Prior to this, the term ‘continuous combat function’ did not appear in any IHL treaties (Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 655).
338 Ibid.
339 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 71.
340 Until such time as the actions of the levée en masse became ‘continuous and organized’
they would not fall within the purview of an organised armed group liable for direct targeting for their continuous combat function (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 840).
341 Van der Toorn ‘“Direct Participation in Hostilities”: A Legal and Practical Evaluation of the ICRC Guidance’ at 19.
342 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 72.
343 Idem at 83.
344 Van der Toorn ‘“Direct Participation in Hostilities”: A Legal and Practical Evaluation of the ICRC Guidance’ at 19.
345 Rogers ‘Unequal Combat and the Law of War’ at 19.
346 Fenrick ‘ICRC Guidance on Direct Participation in Hostilities’ at 209.
and who benefitted from the revolving door of civilian immunity. Rather than apply the revolving door of protection, which only limits their protection from attack ‘for such time as they participate directly in hostilities’, as is the case with civilians, this group of participants lose their civilian protection ‘for as long as they remain members’ of the organised group, by virtue of their ‘continuous combat function’347. In other words, the ‘revolving door of protection starts to operate based on membership’348 in the organised group, and the door revolves again, rendering the individual once again a protected civilian, but only once their membership of the group has ceased. The net effect of this regime for non-State actors, who like child soldiers and PMSCs are
affiliated349 with organised armed groups, is that they stand to ‘lose their entitlement to protection against direct attack’350 not only during their
continuous combative acts, but ‘even when they put down their weapons and walk home for lunch with their family’351.
While this approach does draw on notions of group membership, it is nevertheless different from the regime applicable to those who are members of the regular armed forces. For members of the State’s armed forces, their status as combatants is determined by their formal membership of the armed group, regardless of the function the individual might perform, and until the individual leaves the force352. As Melzer points out any legal regime aimed at organised armed groups needs to take into consideration the ‘more informal and fluctuating membership structures of irregularly constituted armed forces fighting on behalf of State and non-State belligerents’353.
ii. Activating the loss of protection based upon a ‘continuous combat function’
The effect of this regime is that, once it is de facto evidenced that individual members of the organised armed group354 have functioned in a continuous
347 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 71; 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 883.
348 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 72.
349 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 845.
350 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 73.
351 Solis The Law of Armed Conflict: International Humanitarian Law in War at 206.
352 Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 671.
353 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 845.
354 Moreover, according to the Interpretive Guide, ‘membership must depend on whether the continuous function assumed by an individual corresponds to that collectively executed by the group as a whole, namely the conduct of hostilities on behalf of a non-State party to the conflict’ (Jensen ‘Direct Participation in Hostilities’ at 2141-49); Solis The Law of Armed Conflict: International Humanitarian Law in War at 206).
combative matter355, their ‘functional membership’ results in their loss of civilian ‘protection against direct attack’ for ‘as long as their membership lasts’356.
According to the ICRC Interpretive Guide, ‘membership in an organised armed group begins in the moment a civilian starts de facto to assume a continuous combat function for the group, and lasts until he or she ceases to assume such function’357. Such an assessment requires proof of repeated direct participation in hostilities, along with ‘a lasting integration358 into an armed group’359, with indications that ‘such conduct constitutes a continuous function rather than a spontaneous, sporadic, or temporary role assumed for the duration of a particular operation’360. There is no assessment based upon the donning of a uniform or the possession of an identification card361, it is determine solely by function362. The Israeli High Court of Justice, in their assessment of the degree of participation in hostilities on the part of
Palestinian terrorists, in Public Committee against Torture in Israel ('PCATI') v Government of Israel concluded:
‘a civilian who has joined a terrorist organization which has become his
"home", and in the framework of his role in that organization he commits a chain of hostilities, with short periods of rest between them, loses his immunity from attack "for such time" as he is committing the chain of acts.
Indeed, regarding such a civilian, the rest between hostilities is nothing other than preparation for the next hostility’363.
iii. Exclusion and cessation of the ‘continuous combat function’ classification At their core these members of organised armed groups still enjoy primary civilian status (i.e. they do not acquire combatant status). As Melzer points out, ‘continuous combat function does not, of course, imply de jure entitlement
355 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 838.
356 Idem at 843.
357 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 72.
358 Van der Toorn proposed the following ‘objectively verifiable indicia’ of the necessary integration: ‘regular physical association with other individuals affiliated with the group; acting under orders or the command of senior figures; and any other conduct that demonstrates they are seeking to advance the common purpose of the group’(Van der Toorn ‘“Direct
Participation in Hostilities”: A Legal and Practical Evaluation of the ICRC Guidance’ at 28-29).
359 Idem at 7.
360 Jensen ‘Direct Participation in Hostilities’ at 2141-49.
361 Solis The Law of Armed Conflict: International Humanitarian Law in War at 206. Neither can it ‘depend on abstract affiliation, family ties, or other criteria prone to error, arbitrariness, or abuse’ (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 846).
362 Solis The Law of Armed Conflict: International Humanitarian Law in War at 206.
363 At para 39.
to combatant privilege’364. Consequently, it is imperative that only those members of the group who actually engage in the continuous combat
function365 stand to lose their otherwise civilian immunity from attack366. Those who, while affiliated367 with an organised armed group, fail to ‘regularly
perform combat duties’368, cannot be said to perform a continuous combat function, and consequently are excluded369 from the loss of protection on account of their failure to directly participate in hostilities370. Moreover ‘once a member has affirmatively disengaged from a particular group, or has
permanently changed from its military to its political wing371, he regains his civilian immunity against attack’372. As to how this disassociation from the group is manifested, the Interpretive Guide states that: ‘disengagement from an organised armed group need not be openly declared; it can also be
expressed through conclusive behaviour, such as a lasting physical distancing from the group and reintegration into civilian life, or the permanent resumption of an exclusively non-combat function’373. Accordingly, an assessment as to whether an individual has disengaged from an organised armed group, ‘must therefore be made in good faith and based on a reasonable assessment of the prevailing circumstances, presuming entitlement to civilian protection in case of doubt’374.
iv. A critique of the continuous combat function
The ICRC’s ‘continuous combat function’ has not been without criticism. In particular some academics have raised concerns around the issue that the specific treaty language, which the Interpretive Guide was attempting to interpret, states that civilians lose immunity from attack ‘for such time’ as they participate directly in hostilities375. The ICRC’s continuous combat function
364 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 847.
365 Jensen ‘Direct Participation in Hostilities’ at 2141-49.
366 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 846.
367 This would include ‘private contractors and civilian employees’, contracted to organised armed groups (Fenrick ‘ICRC Guidance on Direct Participation in Hostilities’ at 292).
368 For example ‘recruiters; trainers; financiers; propagandists; or those who purchase;
smuggle; store; manufacture; or maintain weapons and other military equipment’ (Jensen
‘Direct Participation in Hostilities’ at 2003-12).
369 Included in this exempted group are ‘political and administrative personnel, as well as other persons not exercising a combat function’ (Van der Toorn ‘“Direct Participation in Hostilities”: A Legal and Practical Evaluation of the ICRC Guidance’ at 7).
370 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 704.
371 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 891.
372 Ibid.
373 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 72-73.
374 Idem at 73.
375 Philip Alston ‘Study on Targeted Killings’ Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (28 May 2010) A/HRC/14/24/Add.6 at para 65.
interpretation effectively arrives at a conclusion which makes it permissible to directly target civilians at all times, provided they are engaged in a continuous combat function376. The potential increased risk to civilians posed by the creation of the continuous combat function category, has seen critics of the concept call for the ‘the other constituent parts of the guidance (i.e. the threshold of harm, direct causation and belligerent nexus criteria) not [to] be diluted’377 so as to adequately protect civilians in times of armed conflict.
Melzer, and others who defend the proposed continuous combat function category, cite principle XI378 in the ICRC’s Interpretive Guide as providing the necessary counter balance to prevent the continuous combat function
category posing an increased risk to civilians around whom there might be some doubt as to their degree of involvement in hostilities (i.e. as a sporadic direct participant or having a continuous combat function).
Watkin is critical that the continuous combat function approach still
‘creates a bias against State armed forces’379 in that the regularly constituted armed forces can only target those within the organised armed group who exhibit continuous combat function, while their own non-combatant members can be targeted at all times380. Watkin is skeptical that, at a split second’s notice, a soldier can ‘realistically be expected to distinguish between a civilian who participates on a “persistent recurring basis”, and a member of an
organised armed group who performs a “continuous combat function”’381. Fenrick concurs. In essence, ‘members of organised armed groups are treated more favorably than members of State armed forces, in so far as a smaller percentage of them may be lawfully subjected to direct attack’382. Furthermore, protected immunity against attack is afforded to persons ‘who are an integral part of the combat effectiveness of an organised armed group when their regular force counterparts performing exactly the same function can be targeted’383.In response to these criticisms, Melzer points out that this perceived bias is not a fiction developed by the Interpretive Guide, but is
‘rooted in existing treaty and customary law’ which prohibits the direct
376 Ibid.
377 Idem at para 69.
378 ‘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’.
379 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.
380 Watkin warns that, together with ‘a narrow concept of direct participation’, the pool of
‘persons accompanying the armed force or closely connected to it that cannot be targeted’ is expanding (Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 659-660).
381 Idem at 662; 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 855.
382 Fenrick ‘ICRC Guidance on Direct Participation in Hostilities’ at 291.
383 Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 664 and 675; 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.
targeting of civilians until such time as they participate directly in the
hostilities384. Melzer concedes that, while notionally more of the regular armed forces might be exposed to direct targeting than the members of their
‘irregularly constituted counterparts’, ‘the actual practical effect will have very little consequence385, since in organised armed groups many of the so-called non-combative roles are performed by the very individuals who engage in the continuous combat function’386. Moreover, as Melzer points out ‘almost all non-combatant387 members of regular armed forces, with the exception of medical and religious personnel… are not only entitled, but also trained, armed, and expected to directly participate in hostilities in case of enemy contact and, therefore, also assume a continuous combat function’388.
Another criticism raised by Watkin is that a restrictive interpretation of what activities amount to ‘combat function’ is at odds with more broader interpretations adopted in ‘case law and other academic writings’389. Watkin argues that the criteria for attaining ‘membership in an organised armed group’ is couched so restrictively, as to make the potential for an otherwise civilian to lose that status and thus be targetable, unlikely390. Watkin prefers to apply the continuous loss of civilian immunity from attack ‘not only to fighting personnel of organised armed groups, but essentially to any person who could be regarded as performing a “combat,” “combat support,” or even
“combat service support” function for such a group, including unarmed cooks and administrative personnel’391. Van der Toorn shares a similar concern, that the ‘continuous participation requirement’ ‘imposes a very high threshold and would likely exclude a large number of individuals’ who, for all intents and purposes, are ‘carrying out substantial and continuing integrated support functions for such groups’392, but ‘who fight for the group on a regular but not continuous basis’393. Van der Toorn suggests relaxing the strict continuous combat function requirement in favour of ‘”regular participation”, or to require an individual’s “predominate function” to be direct participation in hostilities for the group’394. Watkin also suggests a similar formulation which would state that ‘after the first involvement, any subsequent act demonstrating direct participation would start to provide the basis to believe that there is the
384 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 852.
385 Idem at 851.
386 Idem at 852.
387 For example ‘cooks and administrative personnel’ (Idem at 851).
388 Idem at 852.
389 Watkin maintains that the most obvious mistaken exclusions from the ICRC’s understanding of ‘combat function’ is ‘the performance of a logistics function’ (like the
‘transport of weapons and equipment’) (Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 683).
390 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.
391 Idem at 913.
392 Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 664.
393 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.
394 Ibid.