CHAPTER 1 INTRODUCTION
4.5 The temporal element of the loss of protection: ‘for such time as’
civilians take a direct part in hostilities
In terms of IHL, civilians normally enjoy complete immunity against attack for such time as they refrain from any direct participation in hostilities. However, as soon as civilians compromise their civilian immunity by electing to
participate directly in hostilities, their actions expose other truly innocent civilians to ‘erroneous or arbitrary attack’261. Consequently, in order to dissuade civilians from abusing their civilian immunity, IHL condones the temporary suspension of their civilian ‘protection against direct attack’262, for so long as they participate directly in hostilities263. Expressed another way,
‘considerations of military necessity are presumed to override those of
humanity for such time as a civilian ‘directly participates in hostilities’264. While their civilian immunity is temporarily suspended, this has no effect on their primary IHL status as civilians265. At no time do they lose their civilian status and assume primary combatant status266. Moreover when they cease their unauthorised participation, they resume full civilian immunity against attack.
This temporary suspension of a civilian’s immunity against direct attack is only afforded ‘civilians who participate in hostilities in a spontaneous, unorganised or sporadic basis’267. Consequently, once it has been determined that a civilian has carried out a specific act which amounts to direct participation in hostilities, the next level of enquiry must address when the beginning and end of the loss of civilian immunity results268.
The notion that direct participation has a temporal limitation has a
259 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.
260 Ibid.
261 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 71.
262 Idem at 70.
263 Ibid.
264 Melzer Targeted Killings in International Law at 331.
265 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 70.
266 Ibid.
267 Idem at 71. The same cannot be said however of civilians who become members of organised armed groups belonging to a non-State party to an armed conflict. While this category of participant also loses immunity from direct attack, as is the case with any civilian, in this case they ‘cease to be civilians… for as long as they assume their continuous combat function’ and for the duration of their membership of the group (Idem at 70; 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).
268 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under
International Humanitarian Law at 65. Until the civilian is performing functions which amount to direct participation in hostilities, all actions which amount to ‘the use of force against him or her must comply with the standards of law enforcement or individual self-defence’ (Idem at 70).
longstanding history269 in IHL since the mid-nineteenth century. The phrase
‘for such time as’, as it appears in API ‘is binding as a matter of treaty law on…approximately eighty-five percent of the world’s States’270. When the state of Israel argued that the phrase ‘for such time’, as it appears on API article 51(3), did not yet constitute customary international law, the Israeli High Court of Justice in Public Committee against Torture in Israel ('PCATI') v Government of Israel rejected this position, and concluded that ‘all of the parts of article 51(3) of The First Protocol express customary international law’, including the time dimension expressed in the phrase ‘for such time as’271. Not surprisingly, the ICRC’s study into the customary international law status of the phrase ‘and for such time as’, concluded that it was widely recognised as constituting customary international law272.
While the ‘for such time as’ criteria might reflect customary international law, its practical implementation has not been without controversy. For the most part the controversy lies in that fact that when a civilian is no longer engaged in direct participation, and consequently no longer poses a threat to the opposition, they regain their full civilian immunity273 from direct attack, giving rise to what is called the ‘revolving door’ of civilian protection274. The terminology ‘revolving door’, whereby civilians might vacillate275 between being a belligerent, and reserving the right to reclaim their civilian status, was first coined by Hays Parks276 in his 1990s commentary on the practical effect of AP I.
269 ‘In his Code for use by the Union side in the American Civil War, Dr. Francis Lieber denied prisoner of war (POW) rights to persons who commit hostilities “without being part… of the organised hostile army” and who do so “with intermitting returns to their homes… or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers”’ (Boothby ‘“And For Such Time As”: The Time Dimensions to Direct Participation in Hostilities’ at 774).
270 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 884.
271 (2006) HCJ 769/02 available in English from http://elyoni.court.gov.il/eng/home/index.html (accessed 23 September 2008) at para 30 and 38.
272 Boothby points to the U.S. and Israel as evidence for his claim that the ‘for such time as’
requirement is not uncontroversially accepted as having crystallised into customary
international law. However, even after citing these examples, Boothby himself concedes that the Israeli High Court has nevertheless expressly recognised ‘that all of the parts of article 51(3) of the first Protocol express customary international law’ (Idem at 885). In short,
‘Boothby’s doubt as to the customary nature of the phrase “unless and for such time” remains unsubstantiated’ (Idem at 886).
273 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 71.
274 Idem at 70.
275 The net affect of the ‘for such time as’ interpretation is that ‘civilians lose and regain protection against direct attack in parallel with the intervals of their engagement in 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 883).
276 Hays Parks used the phrase disparagingly (William Hays Parks, ‘Air War and the Law of War’ (1990) 32:1 Air Force Law Review 1 at 87-88); Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 686.
i. The parameters of the ‘for such time’ window: execution, preparation, deployment and withdrawal
The Interpretive Guide expressly recognises that the concept of direct participation in hostilities includes not only the obvious individual armed activities, but also the ‘unarmed activities which adversely affect the
enemy’277. Uncontroversially, the ‘execution phase of a specific act’, which satisfies the three pronged test for direct participation in hostilities, will fall within the ‘for such time’ window, and amount to a temporary loss of immunity from attack278. And in accordance with the ‘collective nature and complexity of contemporary military operations’, an interpretation of direct participation in hostilities must include those activities which only cause harm ‘in conjunction with other acts’279. Consequently, the ICRC’s Interpretive Guide includes
‘measures preparatory280 to the execution of a specific act…as well as the deployment to and the return from the location of its execution’281 as
‘constituting an integral part of the specific hostile act’282. The ICRC guide cites as examples: ‘equipping, instructing, and transporting personnel;
gathering intelligence; and preparing, transporting and positioning weapons and equipment’283, if these are carried out as preparation for the undertaking of a specific hostile act. The Israeli High Court of Justice in Public Committee against Torture in Israel ('PCATI') v Government of Israel endorsed the conclusion that ‘a civilian bearing arms (openly or concealed) who is on his way to the place where he will use them against the army, at such place, or on his way back from it, is a civilian taking "an active part" in the hostilities’284.
These preparations, for a specific hostile act, are to be distinguished from preparatory activities which merely establish ‘the general capacity to
277 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 882.
278 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 65. So for example, ‘delivery by a civilian truck driver of ammunition to an active firing position at the front line’ would amount to direct participation in hostilities because of its ‘integral part in combat’ (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 880-881).
279 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 882.
280 The guide stipulates that these preparatory measures must be linked to ‘specific hostile acts’ of direct participation before they amount to direct participation in hostilities (Boothby
‘“And For Such Time As”: The Time Dimensions to Direct Participation in Hostilities’ at 750;
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 880-881).
281 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 65.
282 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 882-883.
283 Boothby ‘“And For Such Time As”: The Time Dimensions to Direct Participation in Hostilities’ at 747.
284 Public Committee against Torture in Israel ('PCATI') v Government of Israel284 (2006) HCJ 769/02 at para 34.
carry out hostile acts’285, which do not amount to direct participation in hostilities. Preparations which are part of a generalised ‘campaign of
unspecified operations’286, or general ‘capacity building to undertake military activity’287, do not fall within the scope of the activities for which civilian
immunity can be forfeited. Examples of such general preparations include ‘the purchase, smuggling, production, and hiding of weapons288; recruitment and training of personnel; and financial, political, and administrative support to armed actors’289.
Where the specific hostile act requires no prior deployment290, the loss of civilian immunity ‘will be restricted to the immediate execution of the act and preparatory measures forming an integral part of that act’291. However, where the specific ‘hostile act requires prior geographic deployment’292, that preparatory deployment ‘already constitutes an integral part of the act in question’293, and results in the loss of civilian immunity. For an activity to amount to a deployment which will compromise a civilian’s immunity,
deploying individual must ‘undertake a physical displacement’294 with the aim of carrying out the specific hostile act. Similarly, if the military withdrawal from the execution of a hostile act remains an ‘integral part of the preceding
operation’295, it constitutes a part of the ‘for such time’ window296, and civilian immunity is only restored once the individual in question has physically separated from the operation’297. Such physical disengagement can be demonstrated ‘for example by laying down, storing or hiding the weapons or other equipment used, and resuming activities distinct from that operation’298. As the Israeli High Court of Justice pointed out in Public Committee against Torture in Israel ('PCATI') v Government of Israel , once a civilian detaches himself from his prior participatory activities, ‘he is not to be attacked for the hostilities which he committed in the past’299.
285 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 881.
286 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 66.
287 Ibid.
288 Boothby ‘“And For Such Time As”: The Time Dimensions to Direct Participation in Hostilities’ at 747.
289 Ibid.
290 For example where the act with amounts to direct participation ‘consists of computer operations conducted from the individual’s home’ (Boothby ‘“And For Such Time As”: The Time Dimensions to Direct Participation in Hostilities’ at 752).
291 ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 68.
292 Idem at 67.
293 Ibid.
294 Ibid.
295 Idem at 68.
296 Idem at 67.
297 Ibid.
298 Ibid.
299 At para 39.
ii. A critique of the ‘revolving door’ concept
Probably the most common academic300 critique leveled at the ‘revolving door’
phenomenon301 was that ‘it creates a significant operational advantage for civilians who alternate between civilian life and engagement in hostilities’302. It is argued that the revolving door would give rise to an ‘uneven legal playing field on the battleground’303, permitting attacks to be leveled at regular combatants (be they cooks or infantry) at all times, while affording civilian belligerents the advantage of a shield, behind which to ‘repeatedly claim the protection associated with that status’304, and yet launch ‘spontaneous, unorganised or sporadic’305 attacks from behind these protected positions306. Watkin agrees that ‘the ability to hide behind a revolving door, and thereby gain a tactical advantage through a claim to civilian status is difficult to justify’307. Particularly since there is no ‘clear guidance308 on the number of times a civilian can walk back through the “revolving door”… it is suggested that a civilian can go through the revolving door on a “persistently recurring basis”’309. Moreover, there is always potential for this interpretation of the
‘revolving door of protection’ to be abused by non-State actors310.
Some writers, like Boothby argue that ‘at customary law there is no revolving door of protection, and thus the ICRC’s interpretation of the word
“participates” in the treaty rule excessively narrows the notion of [direct participation in hostilities] by inappropriately excluding the notion of
continuous participation’311. Boothby, is critical of the fact that the Interpretive Guide does not provide in its interpretation a way to deal with what he terms the ‘persistent civilian participator’312. Boothby argues that there must be a way to distinguish between ‘isolated and sporadic acts by civilians’, and
‘repeated or persistent acts’ of direct participation in hostilities313. Boothby
‘proposes that the time dimension to the rule must permit the targeting of those who, whether voluntarily or otherwise, choose to participate on a persistent or regular basis in the conflict, whether they are or are not
300 Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 687.
301 Roberts ‘The Civilian in Modern War’ at 41.
302 Van der Toorn ‘“Direct Participation in Hostilities”: A Legal and Practical Evaluation of the ICRC Guidance’ at 24 and 45.
303 Idem at 1.
304 Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 682.
305 Boothby ‘“And For Such Time As”: The Time Dimensions to Direct Participation in Hostilities’ at 757.
306 Roberts ‘The Civilian in Modern War’ at 41.
307 Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 688.
308 Except to say that civilians who ‘“go beyond spontaneous, sporadic, or unorganised direct participation… and become members of an organised armed group” are no longer able to make use for the revolving door of protection’ (Idem at 686).
309 Idem at 662.
310 Van der Toorn ‘“Direct Participation in Hostilities”: A Legal and Practical Evaluation of the ICRC Guidance’ at 45.
311 Boothby ‘“And for such time as”: The time dimensions to direct participation in hostilities’ at 743.
312 Idem at 758.
313 Ibid.
members of organised armed groups’314. Boothby argues that States (like Israel315 and the U.S.316) are unlikely to adopt an interpretation which would afford the benefit of the revolving door to ‘unorganised but regular direct participation by a civilian’317, when he suggests they should lose their
protected status ‘while such persistent or repeated involvement in hostilities continues’318.
The Interpretive Guide warns that it would be ‘impossible to determine with a sufficient degree of reliability whether civilians not currently preparing or executing a hostile act, have previously done so on a persistently recurring basis, and whether they have the continued intent to do so again’319.
Moreover, as Melzer points out, Boothby fails to provide ‘operational forces with any reliable guidance as to how the proposed distinction between
“sporadic” and “repeated” hostile acts should be made in practice’320. And as Jensen asserts, ‘any extension of the concept of direct participation in
hostilities beyond specific acts would blur the distinction made in IHL321
between temporary activity-based loss of protection (due to direct participation in hostilities) and continuous, status- or function-based loss of protection (due to combatant status or continuous combat function)’322. It does seem
‘incongruous to argue that a civilian who has directly participated in hostilities, and shown continuing intent to do so, should be immune from targeting’323. Melzer maintains however that ‘persistently recurrent direct participation in hostilities’ by civilians, who have no ‘affiliation to an organised force or group’, is not likely to present a ‘major problem in practice’324. In the rare instances
314 Idem at 798.
315 Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guide’ at 687.
316 ‘The U.S. would take repeated participation into account in determining whether the individual is in fact continuously engaged and thus loses protection on a continuous basis’
(Boothby ‘“And For Such Time As”: The Time Dimensions to Direct Participation in Hostilities’
at 758).
317 Ibid.
318 Ibid.
319 ‘Even the fact that a civilian has repeatedly taken a direct part in hostilities, either
voluntarily or under pressure, does not allow a reliable prediction as to future conduct’ (ICRC Interpretive Guide on the Notion of Direct Participation in Hostilities Under International Humanitarian Law at 71); Watkin ‘Opportunity Lost: Organised Armed Groups and the ICRC
“Direct Participation in Hostilities” Interpretive Guide’ at 687-688.
320 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 892.
321 ‘The treaty text leaves no doubt that loss of civilian protection attaches to individual activity (direct participation in hostilities) rather than status or function, and is temporary (“unless and for such time”) rather than continuous’ (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 887). Moreover this ‘interpretation of the term “participation” as referring to individual involvement in specific hostile acts or operations is also supported by the commentaries’ (Ibid).
322 Jensen ‘Direct Participation in Hostilities’ at 2101-8.
323 Idem at 2108-16.
324 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.
where it does occur325, ‘the threat posed by these civilians in the interval between hostile acts is more adequately addressed through means and methods of law enforcement’326.
Another aspect of the temporal approach adopted by the ICRC’s Interpretive Guide which has come under criticism, is its interpretation of which preparatory, deployment or withdrawal activities amount to unprotected direct participation in hostilities. Jensen proposed that ‘a modern view of “for such time” must include the full time that an individual is directly participating, not just the time that results in actual harm’327. Consequently, Jensen is of the view that the ‘individual who conducts training for individuals to take part in hostilities is targetable until he ceases all training activities’328. Boothby is critical of what he describes as a ‘restrictive’ interpretation of the preparatory activities that amount to direct participation in hostilities329. According to Boothby, ‘“participate” could also refer to individual involvement in “groups or sequences of activity spread over a period,” with the effect that the civilian in question would lose protection for the entire period of his involvement,
including in the intervals between specific hostile acts’330. Boothby favours an interpretation which regards ‘preparatory acts, pure and simple, as direct participation’331. Boothby also favours an interpretation where ‘deployment with the explicit purpose of doing something preparatory to an act, that itself amounts to direct participation in hostilities’, also amount to direct
participation332.
The ICRC’s Interpretive Guide acknowledges that the net effect of the
‘revolving door’ phenomenon will limit attacks on civilian participants333. It justifies the revolving door position as being a necessary part, rather then a
‘malfunction’334, of the guide, in order ‘to protect the civilian population from erroneous or arbitrary attack’335 at times when they do not constitute a military objective. Any interpretation which ‘increases the risks to the innocent,
uninvolved civilian, must conflict’ with a reading of the ‘terms of the treaty in their context and in the light of its object and purpose’336.
325 For example, ‘teenagers using every opportunity to throw “Molotov cocktails” at occupation forces, or civilians being forced to perform limited acts of direct participation in support of an armed group each time it operates in the vicinity of their village’ (Ibid).
326 Ibid.
327 Jensen ‘Direct Participation in Hostilities’ at 2235-41.
328 Ibid.
329 Boothby ‘“And for such time as”: The time dimensions to direct participation in hostilities’ at 797.
330 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 886.
331 Boothby ‘“And For Such Time As”: The Time Dimensions to Direct Participation in Hostilities’ at 752.
332 Idem at 750.
333 Idem at 757.
334 Ibid.
335 Jensen ‘Direct Participation in Hostilities’ at 2235-41.
336 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 886.