CHAPTER 1 INTRODUCTION
4.4 The specific hostile acts which amount to direct participation in hostilities
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
prosecution for any violations of domestic or international law which were committed during that period of participation94. According to the ICRC’s Interpretive Guide, ‘a specific act must meet three cumulative criteria’95, before it can be said to amount to direct participation in hostilities:
‘1.The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and
2. There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and
3. The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)’96.
i. The threshold of harm
The first criteria, also called the ‘threshold of harm’ determination, requires that harm97
a) ‘of a specifically military nature’, or98
b) harm (‘by inflicting death, injury or destruction’99) of a protected person or object,
must be reasonably expected to result from a civilian’s actions before the civilian can be said to be participating directly in hostilities100. Or to put it another way, in order for a civilian to lose their immunity from direct attack
‘they must either harm the enemy’s military operations or capacity, or they must use means and methods of warfare directly against protected persons or objects’101. All that is required is the ‘objective likelihood102 that the act will
94 Ibid.
95 Idem at 46.
96 Idem at 47.
97 The degree of harm includes ‘not only the infliction of death, injury, or destruction on military personnel and objects, but essentially any consequence adversely affecting the military operations or military capacity of a party to the conflict’ (Ibid).
98 From a cursory examination of the criteria, it is apparent that the test is framed in the alternative, that is, ‘the harm contemplated may either adversely affect the enemy or harm protected persons or objects’ (Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 713).
99 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 47.
100 Ibid.
101 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 862.
102 In other words, ‘harm which may reasonably be expected to result from an act in the prevailing circumstances’ (ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 47). As was discussed at the expert meeting, ‘wherever a civilian had a subjective “intent” to cause harm that was objectively identifiable, there would also be an objective “likelihood” that he or she would cause such harm’ (Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 724).
result in such harm’, not necessarily the actual ‘materialisation of harm’103. Moreover, it is not the ‘quantum of harm caused the enemy’, which
determines whether it reaches the necessary threshold of harm criteria104, but rather the nature of the intended harm.
Military harm
As Melzer points out, military harm is the ‘most common form of harm inflicted during the conduct of hostilities’105. Even though it is relatively common, the term military harm only applies to objects which ‘contribute militarily’, and not to civilian objects (even if they may sometimes contribute to a belligerent’s success in the conflict)106. This interpretation, in line with the universally accepted definition of what constitutes a ‘military objective’107, excludes those political, economic and psychological108 contributions which might play a role in a military victory, but alone are not considered military objects109. The term military harm encompasses ‘not only the infliction of death, injury, or
destruction on military personnel and objects, but essentially any
consequence adversely affecting the military operations or military capacity of a party to the conflict’110.
Attacks against protected persons
In accordance with treaty law, even when no military harm results111, the actions of civilians might still constitute direct participation in hostilities when their actions amount to attacks112 specifically ‘directed against civilians and
103 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 33. Schmitt concedes that this is a sensible requirement since it would be ‘absurd to suggest that a civilian shooting at a combatant, but missing, would not be directly participating because no harm resulted’ (Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 724).
104 Schmitt observes that perhaps the choice of the label ‘threshold’, which is a quantitative concept was ‘unfortunate’, when the substance of the test talks to the ‘nature of the harm’, the performance of a specified act, and not that the act reaches a ‘particular threshold’ (Schmitt
‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 716).
105 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 858.
106 Schmitt ‘Deconstructing Direct Participation in hostilities: the Constituent Elements’ at 717.
107 Ibid.
108 For example when a ‘broadcast station is used to demoralise the enemy civilian population’ by ‘broadcasting negative messages to the enemy civilian population’ (Ibid).
109 Ibid.
110 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 47.
111 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 860.
112 The Interpretive Guide relies on AP I article 49’s definition of ‘attack’ which ‘does not specify the target, but the belligerent nexus of an attack, so that even acts of violence directed specifically against civilians or civilian objects may amount to direct participation in hostilities’ (Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 723). Legal precedence for this position can be found in the jurisprudence emerging from the ICTY, where it was concluded that ‘sniping attacks against civilians and
civilian objects’113. ‘In the absence of military harm… the specific act must be likely to cause at least death, injury, or destruction of these civilians or civilian objects’114, as distinct from other forms of harm, such as ‘political, diplomatic, economic, or administrative measures’115 like for example deportation’116. These harmful actions which target protected persons must ‘in some way be connected to the armed conflict’117 or, as Melzer puts it, they must be an
‘integral part of armed confrontations’118. The Israeli High Court of Justice in Public Committee against Torture in Israel ('PCATI') v Government of Israel endorse the conclusion that hostile acts directed against the civilian
population of the state also fell with in the ambit of the notion of direct
participation in hostilities119. However, even harmful acts directed at protected persons and objects will not amount to direct participation in hostilities where they fall ‘short of the required threshold of death, injury or destruction’ or where they ‘lack the belligerent nexus’120.
Examples of activities which satisfy the threshold of harm requirement121:
• ‘acts of violence122 against human and material enemy forces’;
• sabotaging or causing ‘physical or functional damage to military objects, operations or capacity’123;
bombardment of civilian villages or urban residential areas’, constitutes an ‘attack’ in the IHL sense of the word (Ibid).
113 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 49. It is worth noting that these attacks would also
constitute ‘grave violations of IHL or even war crimes’ (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 861).
114 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 49.
115 Examples of these include: ‘building of fences or road blocks; the interruption of electricity, water, or food supplies; and the manipulation of computer networks not directly resulting in death, injury, or destruction. While all of these activities may adversely affect public security, health, and commerce, they would not, in the absence of military harm, qualify as direct participation in hostilities’ (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 862).
116 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 723.
117 For example, a ‘prison guard may kill a prisoner for purely private reasons’ without his actions amounting to direct participation in hostilities, but were he to engage in ‘a practice of killing prisoners of a particular ethnic group during an ethnic conflict’, those actions would meet the standard (Ibid).
118 This aspect is covered by the third prong of the enquiry (the belligerent nexus) (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 861).
119 (2006) HCJ 769/02 at para 33.
120 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 862.
121 According to Schmitt, most of these examples proved uncontroversial (Schmitt
‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 715).
122 For example the ‘killing and wounding of military personnel’ (ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 48).
123 Idem at 47-48.
• restricting or disturbing military ‘deployments, logistics and communications’124;
• exercising any form of control, or denying the military use of ‘military personnel, objects and territory, to the detriment of the adversary’125;
• clearing mines placed by the opposition;
• ‘guarding captured military personnel to prevent them being forcibly liberated’126;
• electronic interference, exploitation or attacks upon ‘military computer networks’127;
• ‘wiretapping the adversary’s high command or transmitting tactical targeting information for an attack’128;
• violent acts specifically directed against civilians or civilian objects129;
• ‘building defensive positions at a military base certain to be attacked’130;
• ‘repairing a battle-damaged runway at a forward airfield so it can be used to launch aircraft’131.
Examples of activities which fall short of the threshold of harm requirement:
• ‘building fences or roadblocks’132;
• interrupting ‘electricity, water, or food supplies’133;
• appropriating cars and fuel134;
• manipulating computer networks135;
• arresting or deporting persons who may have a ‘serious impact on public security, health, and commerce’136;
• refusing ‘to engage in actions that would positively affect one of the parties’137;
124 Idem at 48.
125 For example: ‘denying the adversary the military use of certain objects, equipment and territory’ (Ibid).
126 Ibid.
127 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 715.
128 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 48.
129 For example: ‘sniper attacks or the bombardment of civilian residential areas’ (Gary Solis (2010) The Law of Armed Conflict: International Humanitarian Law in War Cambridge University Press: New York at 203; ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 49).
130 Because it is likely to directly and adversely affect the enemy’s impending attack (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 859).
131 On the grounds that it ‘constitutes a measure preparatory to specific combat operations likely to directly inflict harm on the enemy’ (Ibid).
132 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 48.
133 Ibid.
134 Ibid.
135 Ibid.
136 Ibid.
137 For example a civilian who refuses to provide information (Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 719).
• civilian rescuing of enemy aircrew members138;
• the development and production of improvised explosive devices139. Critique of the ‘threshold of harm’ requirement:
The ‘threshold of harm’ requirement has been criticised mainly for being under-inclusive and unduly difficult to satisfy. Jensen gives expression to this when he comments that the ‘“actual harm” standard from the ICRC
commentary is too restrictive in that it fails to address individuals who,
although they are not members of an armed group that is party to the conflict, still openly support hostilities by constructing, financing, or storing weapons and materials of warfare’140. He is in favour of an interpretation which would see some differentiation between those civilians found ‘constructing, financing or storing weapons’, and civilians ‘who disdain hostilities and comply with their status’141. Jensen would also support an interpretation of direct participation which would ‘include not only those who cause actual harm, but those who directly support those who cause actual harm… this would also include those who gather intelligence142, or act as observers and supply information to fighters, those who solicit others to participate in hostilities, and those who train them on military tactics’143.
Schmitt, in his critique, raises a similar concern: the ‘strict application of the threshold of harm constitutive element would exclude conduct that by a reasonable assessment should amount to direct participation’144. Having said that, Schmitt himself concedes that the treaty definition of a ‘military objective’
‘supports restricting the notion of direct participation to harm which is military in nature’, and that ‘an act of direct participation must impact the enemy’s military wherewithal’145. Nevertheless, Schmitt argues that the military harm requirement is ‘under-inclusive because it excludes loss of protection for support activities which do not adversely affect the enemy’146. In respect of attacks which target protected persons, Schmitt disputes the ICRC’s
interpretation which requires death or destruction, because he argues such an interpretation will exclude ‘unlawful conduct such as the deportation of
138 Unless these activities are ‘designed to harm the enemy’s capacity or effort to target or capture able-bodied military personnel’ (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 860).
139 This is considered to only amount to ‘general war effort’ (Ibid).
140 Jensen ‘Direct Participation in Hostilities’ at 2221-28.
141 Ibid.
142 The Israeli High Court of Justice in Public Committee against Torture in Israel ('PCATI') v Government of Israel endorsed this conclusion in their judgment ((2006) HCJ 769/02 at para 35).
143 Ibid.
144 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 714.
145 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 859.
146 Ibid. Melzer questions whether Schmitt can ‘support his argument as a matter of law’ and
‘demonstrate that the Interpretive Guidance’s wide concept of military harm is “under- inclusive” as a matter of practice’ (Idem at 861).
civilians or hostage taking’147. Instead he suggests ‘a better standard is one which includes any harmful acts directed against protected persons or
objects, when said acts are either part of the armed conflict’s ‘war strategy…
or when there is an evident relationship with ongoing hostilities’, even if such acts do not result in death or destruction148. Schmitt argues that this strict requirement clearly favours humanitarian concerns at the ‘expense of those of military necessity’149.
Heaton is also critical of this strict interpretation for its failure to include within its ambit the ‘essential links in the chain immediately preceding that final step’150. Heaton argues that the final act of the combatant is heavily
reliant on the ‘support personnel’, which makes combative actions possible151. In response to these critiques Melzer warns that any proposal to lower the required threshold of harm, in order to ‘extend loss of protection to a potentially wide range of support activities’, will result in ‘undermining the generally recognised distinction between direct participation in hostilities and mere involvement in the general war effort’152.
ii. The direct causation requirement
The second requirement, also termed the ‘direct causation’ test, was included as a response to the controversy traditionally surrounding questions about whether ‘general war effort’153, and activities aimed at sustaining war154, would amount to direct participation in hostilities155. While it is certainly true that war sustaining activities156 are indispensable to the war effort, which in effect does
147 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 723.
148 According to Melzer ‘under this formula, almost any act occurring for reasons related to an armed conflict, and perceived as harmful to the civilian population could be regarded as direct participation in hostilities, including unlikely examples such as economic sanctions, travel restrictions, and political propaganda’ (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 861).
149 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 714.
150 Van der Toorn ‘“Direct Participation in Hostilities”: A Legal and Practical Evaluation of the ICRC Guidance’ at 37.
151 Ibid.
152 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 877.
153 This includes all activities ‘objectively contributing to the military defeat of the adversary’, for example ‘design, production and shipment of weapons and military equipment;
construction or repair of roads, ports, airports, bridges, railways and other infrastructure outside the context of concrete military operations’ (ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 53).
154 This would additionally include ‘political, economic or media activities supporting the general war effort’(Ibid). For example ‘political propaganda, financial transactions, production of agricultural or non-military industrial goods’ (Ibid).
155 Idem at 52.
156 As the ICRC Interpretive Guide points out, ‘both the general war effort and war-sustaining activities may ultimately result in harm reaching the threshold required for a qualification as direct participation in hostilities, in fact… some of these activities may even be indispensable to harming the adversary, such as providing finances, food and shelter to the armed forces and producing weapons and ammunition. However, unlike the conduct of hostilities, which is
harm the adversary, a line must be drawn between the two degrees of involvement157. All the experts present at the ICRC’s expert meetings were
‘agreed on the centrality of a relatively close relationship between the act in question and the consequences affecting the ongoing hostilities’158. Schmitt expresses it well: ‘sometimes causation is so direct that the shield of
humanitarian considerations must yield in the face of military necessity, while in other situations the causal connection is too weak (or indirect) to overcome humanitarian factors’159. Consequently, and in order to avoid depriving much of the civilian population of their protected status, there must be ‘a sufficiently close causal relation between the act and the resulting harm’ for it to amount to direct participation in hostilities160.
According to the ICRC’s Interpretive Guide, ‘direct causation should be understood as meaning that the harm in question must be brought about in one causal step’161. Clearly excluded are activities that indirectly cause harm162. Moreover, ‘temporal or geographic proximity cannot on its own, without direct causation, amount to a finding of direct participation in
hostilities’163. In cases of collective operations, the ICRC’s Interpretive Guide does recognise that ‘the resulting harm does not have to be directly caused164 by each contributing person individually, but only by the collective operation
designed to cause the required harm, the general war effort and war sustaining activities also include activities that merely maintain or build up the capacity to cause such harm’ (ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 52).
157 During the expert meetings, emphasis was placed on the ‘idea that direct participation in hostilities is neither synonymous with “involvement in” or “contribution to” hostilities, nor with
“preparing” or “enabling” someone else to directly participate in hostilities, but essentially means that an individual is personally “taking part in the ongoing exercise of harming the enemy” and personally carrying out hostile acts which are “part of” the hostilities’ (Idem at 53).
158 Schmitt ‘Deconstructing Direct Participation in Hostilities: The Constituent Elements’ at 725.
159 Idem at 726.
160 Ibid.
161 The act must not only be causally linked to the harm, but it must also cause the harm directly. For example ‘the assembly and storing of an improvised explosive device (IED) in a workshop, or the purchase or smuggling of its components, may be connected with the resulting harm through an uninterrupted causal chain of events, but, unlike the planting and detonation of that device, do not cause that harm directly’ (ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 54 and 55). In short, where an ‘individual’s conduct… merely builds up or maintains the capacity of a party to harm its adversary, or which otherwise only indirectly causes harm’, these actions do not amount to direct participation in hostilities’ (Idem at 53); 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 866.
162 The Interpretive Guide illustrates the direct-indirect distinction by way of two case studies:
‘driving a truck delivering ammunition to positions at the front line would constitute “direct”
participation, whereas the transport of ammunition from a factory to a storehouse for shipping to the conflict zone would only be indirect participation’ (ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 56). This view was endorsed by the Israeli High Court of Justice in Public Committee against Torture in Israel ('PCATI') v Government of Israel (2006) HCJ 769/02 which concluded ‘in our opinion, if the civilian is driving the ammunition to the place from which it will be used for the purposes of hostilities, he should be seen as taking a direct part in the hostilities’ (para 35).
163 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 56.
164 In other words, in one causal step.