OBJECT : Targeting civilians within the frame of non international armed conflicts. Direct participation in hostilities. Proposal for a French position.
REFERENCES :
a) Geneva Conventions, 1949;
b) Additional protocols I and II to Geneva Conventions,1977;
c) Nils Melzer, Interpretative Guidance on the notion of direct participation in hostilities under international humanitarian law, 2009.
ENCLOSURES :
a) Inventory of various legitimate and illegitimate targets
b) Doctrinal references
The French Joint Staff (CICDE) has recently published its doctrine regarding counter insurrection fight, in “CIA-0.8” and “DIA-3.4.4”. These two documents do not provide the required[1] answers to the questions raised regarding the legality of the targeting of civilian participating in insurrections. Analysing in detail the constraints of the legal framework on non international armed conflicts are though, without doubt, of paramount importance to that doctrine.
Moreover, the evolution of the modern conflictuality[2] suggests that the engagement of our forces within a frame of non international armed conflict (NIAC) -even when internationalized- could be relatively more frequent than those taking place in an international armed conflict framework. Thus, the desirable “operative agility” is not enough to ensure success when defining the concrete methods of action in the field, when building a grid of legal analysis indicating what the legitimate targets are, based on the state of the existing law, its interpretations and practices, to, all in all, build a doctrine of the targeting in NIAC seems definitely required. The conversations carried out within the community of international lawyers as well as the expectations sometimes evoked within the targeting community, lead to thinking that a French standpoint may be considered to be necessary, its absence being sometimes poorly understood.
The authors of this study[3] developed, after exchanges conducted at the best level, the basis of what could be a French doctrine of the targeting in NIAC, offered hereafter.
The targeting of participants in an insurrection in a NIAC frame is based upon several provisions of the law of armed conflicts. Most immediately important is Article 13 subparagraph 3 of the additional Protocol II (AP II) to the Geneva Conventions, 1977, ratified by France on February 24, 1984 (without reservations) which reads “ Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take part a direct part in hostilities.”.
The law of armed conflicts, the practice of the States and international jurisprudence do not give any definition of the concept of direct participation in hostilities (DPH). The International Committee of the Red Cross (ICRC) has endeavoured to publish, with the assistance of some of the most prominent international experts, an Interpretative Guide on the Notion of Direct Participation in Hostilities under international law (IG)[4]. Of singular importance, this document appreciably restricts the possibility of targeting civilians taking a direct part in hostilities.
For lack of proactivity on this question, this restrictive definition may constrain our operations, in spite of its non binding legal nature: in the absence of a standpoint, the IG can become a standard by default, for lack of another reference, a practice, and/or acquire later on, the status of a custom under international law. However the simple establishment of a French doctrine is enough to prevent the formation of such a custom. Moreover, it is advisable to recall that if these IG recommendations are moulted in customary international law, a French soldier could, in the long term, be condemned by a court for a lack of observance of the criteria of the DPH established by the ICRC[5]. CDAOA, where the questions of targeting were always regarded as essential, proposes to remedy this risk by advancing a proposal for an alternative and coherent definition of the direct participation in hostilities, which can be then used as a basis for a standpoint or ministerial doctrine.
The direct participation in hostilities, such as it is interpreted by the ICRC (I), raises important questions. It must be re-examined in the light of what could be the position of the French ministry of defense (II).
I) The direct participation in hostilities according to the Interpretative Guidance: a critical approach.
The interpretation made by the IG of the DPH is restrictive and not easily compatible with the conduct of a modern conflict. Built around the debatable concept of organized armed group (A) the targeting of civilians taking a direct part in hostilities (B) can be executed, according to the IG, only during this participation (C) and in the light of the principle of humanity and necessity which lays at the foundation of the law of armed conflicts (D).
A) Discriminating between civilians and members of an organized armed group (OAG).
Traditionally, the law of armed conflicts distinguishes the combatants, who may be the subject of attacks, from the civilian population, which is protected insofar as it does not take directly part in hostilities.
Appearing in the AP II and following the conflicts of decolonization, the mention of OAG was never meant to create a new legal category beside that of civilians to whom a protection is afforded. It was only meant to determine the required level of organization from which the actions of civilians taking a direct part in hostilities make the situation of a State swing from internal disorders to a NIAC. Based upon this criterion, namely the belligerent nexus, the civilians taking a direct part in hostilities are thus distinguished from simple criminals. This mention of OAG was only meant to provide clarity and relevance in accordance with the summa divisio “international conflict” and “non international conflict” of the IHL.
However the IG, by focusing on the membership in an OAG, which is found to be wanting, at least, restricts the permanent targeting only to those members who do have a continuous combat function and does not take into account the very loose character of adhesion to a group of insurgents in modern conflicts. The permanent targeting should not be linked to the membership in any group but exclusively to the direct and regular participation in hostilities. That is why we believe that with regard to the targeting of civilians in NIAC, the only distinction to be made is as follows:
• The civilians not taking a direct part in hostilities;
• The civilians taking a direct part in hostilities.
Members of an organized armed group as a category simply do not exist as such in the law of armed conflicts.
B) Direct participation in hostilities (DPH) under the IG: three conditions.
The IG defines the DPH in the following way: “the notion of direct participation in hostilities refers to specific hostile acts carried out by civilians as part of the conduct of hostilities between parties to an armed conflict”[6]. The IG in this manner affirms the equivalence of the terms “attacks”[7] and “hostilities”. DPH supposes a participation in a specific act of violence. It requires that three conditions are met : a threshold of harm, a direct causal link, the presence of a belligerent nexus.
1) A threshold of harm.
The act of hostility must, first of all, have for probable consequence to negatively affect the military operations or the military capacity of a party to a conflict, or, alternatively, to inflict death, wounds or destruction to people or objects protected from direct attacks. The military operations are negatively affected by acts of sabotage, or disturbance of logistics, communications, or deployment[8]; the capture or the exercise of control on military personnel, objects or territories to the detriment of a party to the conflict; mine clearance, cyber attacks against military infrastructures, eavesdropping on a military command and the transmission of information of tactical value etc..[9]
However, by reducing the hostilities and the harmful effects which they generate to the addition of armed actions, the ICRC’s IG considerably limits the capacity of regular armies to engage the insurgents movements by lethal means. Indeed, the non-kinetic actions of insurgents are not taken into account: if the insurgents who had massacred French soldiers in the Uzbeen valley into 2008 were legitimate targets under the IG, other Taliban leaders having directed the filming of the rejoicings following combat, in an attempt to influence the French media with a view to decreasing the support of the French population for the fight, do not constitute, for that sole reason, legitimate targets according to the IG.
When it comes to attacks on non military objects, which the IG takes into consideration because of the link it may have with the overall conflict (belligerent nexus), to restrict the threshold of harm to “death, wounds or destruction to people or objects protected from direct attacks” also amounts to refusing to take into account cyberattacks whose economy, telecommunications and civilian companies can be the object of (to cause a stock exchange to crash, to paralyse public transport, to prevent the private banking transfers) without consideration to potentially disastrous consequential effects.
In a more worrying way, an offensive strike aiming at a paramilitary group preparing or even carrying out deportations[10] would be prohibited under the IG. So would be the attack of an insurgent chief ordering letters containing death threats be distributed at night, in order for example to prevent the orderly running of elections. In both cases under the reason that these acts pose no military threat[11] or do not actually constitute “death, wounds or destruction to people or objects protected from direct attacks” even if these actions directly threaten the mission, strategy and the objectives laid down by the UN Security Council, the international community and may, directly or not, lead to atrocities being committed,..
2) A direct causal link.
The IG requires a direct causal link between the act and the probable damage resulting from this act. The damage done may also be the result of a coordinated military operation of which, in this case, the act in question must be an integral part thereof. According to the ICRC, the damage must be carried out in only one causal step. It specifies that even if an act does not involve damage in only one causal step, it can constitute DPH, if it is an integral part of a coordinated military operation which directly causes damages[12]. It would be the case when training or assistance is provided for the execution of a specific military operation. A geographical or temporal proximity is not necessary: for example the emplacement of an improvised explosive device (IED).
The IG, when it comes to measures in preparation of an hostile act restricts then direct participation in hostilities “to preparatory measures aiming at a specific hostile act” whereas “preparatory measures aiming at establishing the general capacity to make unspecified hostile acts” constitute only indirect participation[13]. From there, a weaponeer loading an attack helicopter, or a mechanics refueling an attack boat, without more precisions regarding their mission, could not be targeted[14]. However supplying such means/weapons in a situation of conflict is a necessary condition to the release of an hostile act: one does not provide this kind of support without the conviction those means are going to be imminently used in hostilities.
From this IG definition on, civilians having logistic (providing power, gasoline, building materials) administrative or technical functions are protected from direct attack. Political leaders, recruiters, trainers, financers or propagandists[15], civilians whose function is limited to the purchase, the transportation, the manufacture or the maintenance of weapons or other equipment, or to the collection of information of a non tactical nature[16] are also protected from direct attacks. Scientific research[17] benefits from the same protection: an insurgent scientist working out new preparations for chemical weapons is fully protected under the IG, if he is not actually found mixing chemicals for a planned attack. In the same way, any activity in relation with the production and transportation of weapons (among them IEDs) or of equipment (except if within the framework of an actual military operation)[18] is excluded from the DPH because according to the IG criteria, it is neither necessary nor sufficient that the act be indispensable to the realization of the damage to incur a loss of protection.
Such a reasoning implies that a military engineer of the direction générale de l’armement (DGA), because he wears a uniform, shall be a legitimate target throughout all conflict’s duration, whereas an IED expert affiliated to insurgents may never be the subject of a lethal attack. Pushing this kind of reasoning to the limit, the utility of regular forces may very quickly be questioned since, to cite Douhet, the roots of the insurgency (its technicians) will never be extirpated. Being able to target only the emerged part of OAGs, the regular armies may see their presence in the field called into question.
3) A belligerent nexus.
For the IG, the act must, finally, be specifically designed to cause a direct damage in support of a party for the conflict to the detriment of another.
Thus, despite the harmful effect criminal armed groups would have when they more than once and equally attack friendly troops, adversaries, protected people and goods, they cannot be attacked as they act only for their own benefit and not in support of another party.
When it is not as such surprising that criminal groups, even if harmful to the population, cannot be made the subject of a military strike, it is contrariwise surprising not to be able to carry out military operations against criminals attacking our own troops regularly and to have to rely on to police action or on self-defence.
Concerning the hostile acts against the armed forces of the parties to the conflict, it is, we think, important to recall that the hostilities “shape” or constitute the relations between parties to that conflict: any serious interference in the conduct of the hostilities, i.e. against the armed forces themselves may be deemed a direct participation in hostilities.
Concerning the hostile acts committed to the detriment of protected people and/or objects, if the criminal group has a loose organization, then it does not take part directly in hostilities unless a link is satisfactorily established between that group and a party to the conflict. On the other hand, if it is sufficiently organized, under the lead of a responsible command, and exerts on a part of its territory enough control such as to enabling it to carry out continuous and concerted military operations[19], then this group can receive the qualification of party to the conflict: its action constitutes a direct participation in hostilities.
C) Duration of the direct participation in hostilities.
The IG attaches utmost importance to participating or not in an OAG. We expressed above the reservations CDAOA may have regarding that matter. Again, according to ICRC'S, there would be mainly two categories of civilians taking a direct part in these acts of specific hostilities:
• Those taking part in a continuous way by assuming a continued combat function within an OAG. They can be targeted as long as they do not give up their continuous combat function;
• Those taking part in hostilities in a sporadic way, whichever they are members or not of an OAG. They can be targeted but protection is granted back to them as soon as the commission of a specific hostile action has ended and return from that operation is finalized. This last interpretation is referred to as the strategy of the “revolving door”.
“The revolving door of civilian protection is an integral part, and not a dysfunction of IHL”. This position prohibits to target in a permanent way a “farmer during the day, insurgent at night” as long as he is not identified as a participant in an OAG with a continuous combat function.
1) Civilians taking a direct part in hostilities, members of an OAG.
Based upon the mention of OAG at article 1 of the Additional Protocol II (AP II), the IG distinguishes the civilians not taking part in hostilities from ;
• the civilians taking part indirectly in hostilities;
• the civilian members of an OAG;
• the civilians taking part directly but sporadically in hostilities, without regard to their membership to an OAG or not;
• civilian members of an OAG in a continuous combat function capacity.
By so doing, adhesion to an organized armed group becomes a criterion of distinction for targeting purposes. The admission of this concept, first of all, admittedly constitutes a progress expressing a commendable realism from the ICRC with a view to guaranteeing a satisfactory level of protection for “true civilians”. Nevertheless, it has for obvious result that the interval of time during which a person taking a direct part in hostilities can be targeted is limited, if one refers to the consequences of the “revolving door (3)”.
The civilians members of an OAG, taking a direct part in hostilities are supposed to do so in a continuous and direct way in hostilities if they assume a continuous combat function. Consequently, they constitute permanent legitimate targets as long as they do not surrender this function.
Surrendering a continuous combat function and recovering the benefit of the protection granted to civilians under article 13 of the AP II can be deducted and results from the observed behavior of the members of an OAG : a “certain time” spent without fighting renders a guerrillero immune to direct attack under the GC and AP without specifications regarding the exact amount of time required for this protection to be reafforded.
2) Civilians taking part in a spontaneous, unorganized or sporadic[20] way in hostilities.
This category includes the civilians members of an OAG who do not assume a continuous combat function as well as those who are not members of an OAG.
The IG makes the point that the civilians lose their protection against the direct attacks only for the duration of each specific act constituting a direct participation in hostilities, i.e. during each act of violence (including deployment and withdrawal). Civilians who are not members of an organised armed group but who take sporadically part in hostilities thus regain protection against attacks in the time intervals, where they do not commit any hostile act : it is the strategy of the “revolving door”.
Dr Nils Melzer specifies nevertheless that this protection is not granted to the civilians regularly taking part in hostilities, the so called farmer during the day and insurgent at night. For Melzer, it is possible to regard such a civilian as a de facto member of a non official armed group exerting a continuous combat function[21]. Consequently, he/she is not granted any protection as long as he/she exerts such a function.
Only civilians taking part in a spontaneous, sporadic or unorganized way in hostilities would be granted such protection in between those times when they directly participate in hostilities and those times where they carry out peaceful activities, even if they belong to an OAG.
Nils Melzer thus makes of the de facto participation to an OAG the first condition to target in an uninterrupted way a civilian, the other condition being that that civilian assumes a continuous combat function[22].
3) Concerning the strategy of the “revolving door”.
To turn the attention onto a criterion such as the participation in a continuous combat function leads to consider the question of the frequency of this participation. However it is not materially possible to distinguish between the civilians that one can target continuously and the civilians that one can target in a way as sporadic as their actions.
And especially when indeed, according to the IG, it is enough to cease taking part during a certain time in hostilities to regain the protection against attacks, even though at the same time participation with a combatant function to an OAG has not ceased.
It is consequently advisable to recall that within the framework of international armed conflicts (IAC), where guerrillas are concerned, the ICRC criticizes itself the strategy of the revolving door in its Comments, bearing para 1678 on Protocol I: “Any interpretation which would make it possible for the combatants under article 43 “to be demobilized” within their liking so as to regain their status of civilians, to later recover their status of combatants when the situation changes or when the military operations want it, would lead to cancel out all the progress made with the adoption of this article”. Moreover, in the same paragraph, the ICRC admits that “the guerrilla combatant when the nature of the hostilities requires it, may wear purely civilian outfit (art. 44-3); [however] it does not admit that this combatant has the combatant status when it is in action and the status of a civilian during the intervals". The ICRC concludes itself with these words: the Protocol does not recognize a combatant "à la carte".
It is admittedly questionable to refuse within the IAC frame that national liberation guerillas be granted the benefit of the “revolving door” for then imposing it upon the regular armies operations confronted with civilians taking a direct part in hostilities[23] under a NIAC frame: The questions and modus operandi are indeed identical.
Thus, making it possible for civilians to recover their protection as soon as they put away their weapons is a dysfunction of the law of conflict contrariwise to what Nils Melzer offers[24]: whoever engages in hostilities is committed by definition to pour blood and consequently to see his own blood spilled[25]. If this distinction does not confer immunity to the armed groups, it, on the other hand, may encourage civilians to take part in a sporadic way in hostilities and to cautiously not too often kill our soldiers: they will thus be able to make hay of IG’s recommendations, and to be “farmer during the day and sporadic insurgent at night” without ever be made the subject of a continuous targeting.
In fact, the IG gives to civilians sporadically taking part in hostilities the always welcome advantage of the surprise in attack and of immunity during their sleep. OAGs may then organize themselves around a string of dormant cells meant to be activated according to a pre-defined cycle so as to enjoy the immunity which the IG would then grant to them .
As soon as a civilian has directly taken part in hostilities, one can only deny that civilian a legal game of hide-and-seek that the ICRC admits with the IG: to do differently would be akin to legalizing perfidy for insurgents within the meaning of art. 37-1-c of AP I.
To restrict the scope of the DPH amounts to decreasing the operational capabilities of the regular armies by exposing them unnecessarily and to allowing the insurgent apparatus grow in impunity. It is then advisable to recall that “the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy”[26].
The jus in bello does not have for purpose to paralyse the action of the regular armies by weaving a legal cobweb: it is necessary to recall that it was conceived to decrease the suffering of the people who do not fight or have stopped fighting the opposing party.
Its raison d'être is not to prevent openly or indirectly the High Contracting Parties, i.e. the States, to wage war or conduct operations during a conflict.
To favor a certain understanding of the treaties which leads in non international conflicts to legal faults protecting insurgents who would treacherously benefit from their civilian status, plays against the spirit first and secondarily against the objectives of the Geneva Conventions and their Additional Protocols.
D) Principles of humanity and necessity reinterpreted in NIAC.
The recommendation IX of the IG states that the type and the acceptable degree of force against civilians who are “not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances”[27].
It would thus be necessary to capture rather than to kill civilians taking part in hostilities when that does not imply an additional risk for the armed forces or the civilian population.
The ICRC does not go as far as to transposing in the law of armed conflicts the restrictions regarding the use of force which prevail in article 2 of theConvention for the Protection of Human Rights and Fundamental Freedoms (European convention). Still, mixing the principles of humanity and proportionality in the act of legitimate violence against the enemy, leads to an unwarranted weakening of the freedom of choice of the commander.
There is no provision as such in the law of armed conflicts denying a commander the right to use only lethal force to fulfill his mission. Obviously, the means and methods at his disposal are not unlimited. But it only means that apart from the prohibitions and restrictions specifically mentioned by the law of armed conflicts, a commander is perfectly justified to use lethal force at his discretion to achieve his mission. The principle of military necessity so requires.
The use of a direct strategy or of an indirect one only belongs to the commander : the choice between capturing or killing does not have to be subjected to the principle of humanity that finds numerous other specified applications under the law of armed conflicts.
That orientation of the ICRC in the IG, in contradiction with the ordinary meaning to be given to the terms of the treaties in their context, must be absolutely avoided except if one intends to confine the armies in missions only befitting police forces.
II) A proposal for a French doctrine on the direct participation in hostilities.
In the light of the difficulties above mentioned, it is advisable that a French interpretation, not unduly restrictive but in accordance, strictly, with the jus positum be proposed, taking fully into account the considerations at stake (A) allowing for the conduct of an asymmetrical conflict (B).
A) A strict, not unduly restrictive interpretation
The IG gives a detailed attention to the concept of organized armed groups, the relevance of which is seriously questionable (1). Only a precise definition of the military operations (2) and hostilities (3) make it possible to obtain a grid of relevant analysis with regard to DPH (4) and to offer ideas about the duration of this participation (5).
1) Inexistence of the category of the members of an organized armed group.
Many academic authors see in the promotion of the OAG concept the possibility of targeting more easily the civilians siding with one of the parties to the conflict and taking part in a regular way in hostilities. Faring from the idea that in an non international armed conflict, a State is always opposed to an OAG, professor Yoram Dinstein considers that the direct participation in hostilities does not depend on a specific action attributed to a civilian but on his/her proven membership in an OAG. Indeed, since an OAG has for only vocation to take directly part in hostilities against a State, the membership of a civilian in one OAG qualifies him as a direct participant in hostilities so that he may legitimately be the subject of lethal targeting. Consequently, Dinstein considers that any action for OAG purposes, even “peaceful”, stems from DPH, whatever it is cooking or providing and managing the finances of the movement: striking remain possible for as long as the civilian is not de facto disengaging from the OAG. For practical/political reasons, the political leaders are not in this view subjected to targeting since the end of the armed struggle supposes to be able to negotiate with a valid (and alive) interlocutor.
It is however advisable to recall and stress the inexistence of the category of “members of organized armed groups” in NIAC law and its lack of relevance except maybe to distinguish a criminal act from an hostile act (criterion of belligerent nexus) : can/may be targeted whoever “takes directly part in hostilities for the duration of this participation”.
2) The definition of military operations as a precondition.
The definition of the hostilities provided below calling upon the concept of military operations, this last concept must be defined before that of hostilities.
The military operations do not only consist in military equipment or troop movements/activities to include weapons release but cover the whole spectrum of military activities conducted by a staff. Thus should be included/understood but not limited to:
• the command and control of the armed operations as well as armed operations themselves;
• the civil-military or cooperation missions;
• the information operations.
3) The definition of hostilities.
By defining hostilities as “the sum of the acts of violence within a conflict”, the IG intentionally equals the notion of “attacks”[28] to that of “hostilities” in order to restrict the targeting of the civilians.
a) Distinction of the hostilities in Jus Ad Bellum and Jus In Bello.
a. Hostilities within the meaning of Jus Ad Bellum.
The National Center for textual and lexical resources defines the hostilities as war itself for the purposes of Jus Ad Bellum.
B. Hostilities within the meaning of the Jus In Bello.
When the Hague Convention defines armistice as the suspension of military operations[29] while ensuring that a serious violation of armistice makes it possible for the offended Party to legitimately re-open hostilities[30], it poses the equivalence of the terms “military operations” and “hostilities” in the Jus In Bello .
It is so that the word “hostility” comes from the Latin “hostīlis, e” which designates any harmful act committed by the enemy. So “hostilities” must be disconnected from the concept of violence (without excluding it), because it comprises of any act having in fine for object or for effect to reduce the capabilities of one of the parties to the conflict.
Some authors, lastly, have suggested that, “hostilities” should not be included/understood as a sum of specific acts of hostility (or harmful acts) but as a globally understood activity so that the occurrence of an act of hostility must be reasonably certain even if not specified and has not yet occurred as such. So then, taking part in an act of non specific hostility amounts to directly participating in hostilities and leads to losing one’s general protection. Thus, enlisting in an OAG would incur a direct attack liability and a party to the conflict would not have to wait for a specific act of hostility to target that individual, that with a view to avoiding further damages to itself or protected persons or goods. The fact for that individual to enlist in an OAG where hostile acts are planned and regularly carried out, where DPH is reasonably certain, would suffice in itself to allow for a permanent targeting. But as mentioned above, the notion of OAG cannot be used to replace that of direct participation in hostilities. DPH imposes with the principle of general protection afforded to civilians, that it ceases to be granted when no doubt is left as to the evidence of the commission of an harmful act and at that more than once.
It is then advisable not to confuse “hostilities” within the meaning of Jus Ad Bellum i.e. the conflict/war, and the hostilities within the meaning of the Jus In Bello, the military operations without giving “hostilities” un unduly large spectrum .
b) The distinction between the hostile act and the preparatory measures.
Direct participation in hostilities covers two types of actions, each one being of a nature sufficient to suppress the protection associated with article 13-1 AP II: the first one is the hostile act and the second consists in preparatory measures to this act.
Hostile act include all harmful activities, comprising of acts of violence or not, conducted by one of the parties to the conflict or harmful to the protected people: propaganda, intimidation, IED emplacement, the collection of military value information, decision-making in military matters, use of weapons… “Hostile act” also includes activities which, although distinct, form an integral part of the hostile act, in particular the deployment, the redeployment and the supplying of weapons, in ammunition or gas of any weapon/equipment.
Preparatory measures are those required for the commission of hostile acts. Indeed, the later would not be possible unless a number of actions or several activities immediately necessary to the achievement of the considered hostile activities (and not of a specific hostile act) be undertaken: according to the Air Commodore Boothby, “it therefore seems proper to regard [such an activity] with the explicit purpose off doing something preparatory[31] to an act that itself amounts to participation in hostilities as amounting to DP”[32]. Preparatory measures may be:
• hiding of materials and/or personnel having committed of for the purposes of committing hostile acts;
• combat training (to include psychological preparation to suicide bombing);
• design and production of weapons (to include IED);
• supplying ammunition or gas;
• the maintenance of communication networks.
Proposal for a definition:
Hostilities are made up of any action, armed or not, which have as for object or for effect to negatively affect the military capacity or the military operations of a party to a conflict, or alternatively to harm the protected civilians or property when this action has a link with the armed conflict.
If the ICRC, in its comments, at paragraph 1679, defines the acts of hostility as covering “any act of war which by their nature or their purpose aims at concretely striking the personnel and the equipment of the enemy armed forces”, it also admits the existence of a certain margin of appreciation since “to restrict the concept of hostilities only to combat and military operations would be too narrow minded”. It thus does not appear impossible to include preparatory measures into “hostilities” but also the actions of a non kinetic character whose results on the military capabilities of a party present a sufficient degree of foreseeability (see below for the example of propaganda).
The authors of these actions are then de jure legitimate targets, which does not preempt the retained course of action regarding the type of targeting, lethal, or non lethal. It is though, important that the lethal targeting remains legally possible.
c) The distinction between the tactical and strategic levels.
The direct participation in hostilities does not cover only the hostile/harmful/detrimental acts and their preparatory measures at the tactical level: they have their equivalent at the upper levels.
To define hostilities as any action resulting in or having for objective to negatively affect the military capacity or the military operations of a party to the conflict, lead to include as DPH the decisions made in strategic matters such as the choice of general military orientations.
Thus, decision makers organizing the preparatory convoys for the supply of a possible military operation or allocating material and human resources may be the subject of lethal strikes. In the same way the people in charge of deciding or directing the orientation of military research[33] or of distributing appropriations[34] between various branches of an organized armed group, must be regarded as directly participating in hostilities. Because propaganda cannot by nature only have tactical effects, it must be generally classified like a hostile act of strategic level: consequently, only decision makers[35] can be targeted at any time and any place.
On the other hand, those who distribute propaganda media and distort information, propagate rumours without being themselves in charge of the information operations, that is, without an active role in the definition of the message, without being at the origin of the action of propaganda must be regarded merely as relays and not as legitimate targets : if by their action they contribute to a failure of our military operations, it is only a case of indirect participation in hostilities, unsufficient to make them lose their protection.
Preparatory measures regarding these hostile acts of a mostly strategic nature are primarily confined within specialists, or advisers and analysts : these civilians, because they take part directly in hostilities, constitute legitimate targets but cannot be targeted apart from their daily work, that is during the actual preparation of hostile acts.
4) Relative relevance of the IG criteria.
If the criteria of the IG do seem relevant, it is advisable to specify the range and consequences of certain assertions:
• An act negatively affecting a party to the conflict, or people and goods protected by the LOAC : the hostile act.
The purpose of the act must have for object or for effect to negatively affect the military operations or the military capability of a part to a conflict. Moreover, any harmful act related to the conflict, armed or not, towards protected people or protected objects is an intervention negatively affecting one of the parties to the conflict.
Thus, an insurgent hacker sabotaging, within the framework of the conflict, the banking sites/systems, a Stock Exchange network/servers or in real space, a nuclear power plant control system would lose its protection against lethal targeting. The same applies to a leader propagandist because his actions tend to affect negatively our military capacities.
• A necessary causal link with the act of hostility
There is direct participation in hostilities only in case of commission of a hostile act and/or a preparatory measure to the hostile act.
• A link with the conflict (belligerent nexus)
The act must be conceived to cause, directly or not, a damage to the detriment of a party to the conflict, within the framework of the conflict, but not necessarily in support of another party.
Indeed, during a conflict, autonomous groups can be formed and attack the parties to the conflict without favoring any or be willing to support one of them particularly. In a context of armed conflict, any attack against the armed forces of a party to the conflict should automatically be described as DPH making the authors lose their protection against attacks. Should be considered as direct participation in hostilities the commission of hostile acts to the detriment of protected people and protected objects when a link with a party to the conflict is established, or when the size (organization, concerted operations control over a portion of the territory..) of the criminal group is likely to qualify it like as a party to the conflict.
Thus, within the framework of a conflict, people kidnapping others in order to put them under the control of an OAG for a price when this situation influences the conduct of military operations or the allocation of military resources take directly part in hostilities.
Definition:
Takes directly part in hostilities any person who contributes immediately to the realization of the hostilities as defined above. Preparatory measures having for object or effect, in a manner reasonably certain, to contribute to the conduct of the hostilities as defined above are equivalent to a direct participation in hostilities.
5) Duration of the direct participation in hostilities.
If direct participation in hostilities leads to the loss of the special protection granted to civilians, the duration of the loss of this protection is not the same depending on whether the civilian in question commits a hostile act or participates in a preparatory measure.
a) Duration of direct participation in hostilities in the case of a hostile act.
According to Air Commodore (RAF) Bill Boothby, the “participation” can apply to specific actions taken separately as well as to an activity extended in time and globally considered. Thus, a civilian directly and regularly taking part in hostilities, takes part in hostilities during all the time where he continues to have such an activity. He is thus not protected from the attacks during the time intervals when he remains dormant.
Indeed, the goal of the LOAC and AP II is to protect the victims from the conflicts – whichever because they do not participate in hostilities or because they are hors de combat - not to ensure impunity to a person regularly taking part in hostilities: the strategy of the “revolving door” must be legally neutralized.
For Boothby, the true distinction is to be made between civilians who take part (in hostilities) in a isolated and sporadic way and civilians who take part in a repeated or persistent way, and not between the members of armed groups having a continuous combat function and others. For him, civilians taking part in a sporadic way must be protected from the attacks between the hostile acts, whereas those taking part in a repeated way must be able to be attacked as long as they do not cease taking part in hostilities defined as a general activity. Any person having voluntarily taken part more than once in a hostile act is considered to take part regularly in hostilities until the demonstration is satisfactorily provided of the suspension of this participation.
It is incidentally advisable to distinguish between the cases where the DPH is performed under duress and the cases where it results from a free choice. A person acting under a physical[36] or moral[37] constraint is not morally responsible for his/her acts; however, because the aggression is objectively characterized, one must conclude that “the attacks achieved by an insane person or a child can bring about legitimate responses”[38]. Nevertheless, because a person under duress cannot be presumed to be willing to carry out hostile acts continuously, that person should not be presumed as taking regularly part in hostilities and must thus be protected from any direct attack until his/her next direct participation in hostilities.
b) The duration of the direct participation in hostilities in the case of a preparatory measure
Preparatory measures, whereas legitimately regarded as direct participation in hostilities, are however acts objectively less harmful than the hostile act itself. Consequently, civilians regularly committing hostile acts can be targeted as long as they do not cease taking part in hostilities but civilians taking part in preparatory measures can be targeted only for as long as this actual participation lasts.
Proposal for definition:
The concept of “unless and for such time” such as it appears at article 13-3 of the Protocol Additional II is understood as follows:
Any person having voluntarily taken part more than once in a hostile act is considered to take part regularly in hostilities until evidence of the suspension of this participation is provided. The determination of this suspension must be made in good faith and reasonably using concrete, objective and verifiable facts.
Any person taking part in a preparatory measure aiming at the commission of a hostile act loses his/her protection for as long as this taking part in a preparatory measure lasts.
B) An approach in adequacy with the conduct of an asymmetrical conflict.
The approach hereby offered has the advantage of maintaining a high level of liberty in the choice of the tactics to be used by the commander (1) while challenging the confusion that the IG allows to settle between the principle of proportionality of the law of armed conflicts and the principle of proportionality of the human rights law (2). The latitude conferred on the commander is however moderated by the principle of doubt regarding the civilian’s direct participation in hostilities (3).
1) Safeguarding the freedom of choice of the commander.
a) A refusal to condemn the principle of the indirect strategy.
In his “Strategy”, Sir Basil Liddell Hart develops the most clearly systematized ideas regarding indirect approach: Liddell Hart recognizes the principle according to which the military objectives second the political purposes, shows that the strategy itself is subjected to the “Grand Strategy”, insists on the concepts of surprise, movement, economy of forces, disruption of the enemy rather than its destruction[39].
How is disruption obtained? Threatening the supply lines of the enemy seems obvious but there are other operations that can destabilize the enemy psychologically, such as for example disturbing its lines of communication. “To cut the lines of communication of an army is to paralyse its material organization, to close its line of retreat is to paralyse its moral organization; and to destroy the internal lines of communication by which orders and reports are transmitted is to paralyse its nervous system, the essential connection between the brain and the body”[40]. To neutralize the system on which all the effort at conflict of the adversary rests is more effective than to only attack its military operations.
b) Legitimate examples of targets.
The understanding offered here of the DPH, the suggested legal solution, takes into account the realities of modern conflicts and has the advantage of not barring the structures of support of OAGs from being targeted in consideration of the fact that no operation can take place without a financial, logistic organization and orderly communications. Indeed, it would be illogical to fight enemy armed forces if their infrastructure remains intact, because sanctuarized by a certain understanding of the law of armed conflicts
It is also a matter of common sense since, for example, under the interpretation of DPH here favored, the IED experts who consciously produce the bombs or create new devices without knowing where and when they shall be used or without emplacing them, would not be protected behind a Byzantine legal screen. In the same way the political leaders of OAGs could be legitimately targeted since that they are the living incarnation of the insurgent movement and in fact lead the campaign.
a. The elimination of propagandists
I. Propaganda as core part of hostilities.
In “The Art of War”, Sun Tzu lectures his reader at the same time about combat tactics and influence techniques. For him, “Those who are experts in the art of war win over the enemy armies without combat. They take cities without attacking and throw over a State without prolonged operations". Numerous precepts regarding influence techniques can be found in “The Art of War” : to discredit the enemy leaders, to disorganize the authority, to ridicule the traditions, to plant discord between the citizens, to disrupt the economy, to spread amorality and vice, to use “vile men” and to draw up the young people against the old ones[41].
Influence techniques are part of the corpus of military doctrines and are thoroughly used in military operations by several States. In particular, the Atlantic Alliance in a proactive way defines these techniques as information operations (INFO-OPS) and among them PSY OPS. They are “planned psychological activities, aimed in peace time as in times of conflict at hostile or friendly public or at neutral ones, with a view to influencing attitudes and behaviors affecting the achievement of political and military objectives. They include strategic psychological activities, psychological consolidation activities and battle field psychological activities ”[42].
Affecting the achievement of the political and military objectives of one of the parties to the conflict, INFO-OPS/PSYOPS are part of the hostilities and find all their place in military command structures as well as in insurgents command and control structures .
II. The targeting of the propagandists.
The action of propagandists has a harmful effect on our troops or the civilian population, and must be included in the definition of “hostilities”[43]. Consequently any enemy leader at the head of a propaganda campaign is considered as taking directly part in hostilities and may be the subject of an attack within the meaning of article 49-1 of the Additional Protocol I (AP I).
B. The neutralization of the propaganda virtual or physical network
I. The neutralization of the virtual network.
Article 49-3 of AP I lays out that the rules relating to general protection against the effects of the hostilities apply “to any land, air or sea warfare which may affect, the civilian population, individual civilians or civilian objects on land”.
Operations in cyberspace being unrelated to a land, air or naval operation, those operations do not seem to require that military targets and objects of a civil nature be distinguished. Furthermore, cyberspace objects being of an immaterial nature, their destruction do not seem to be covered /prohibited (see also AP II 14).
Consequently, it is thus legal to neutralize (even definitively) any virtual network or any Internet site being used for the diffusion of enemy propaganda. However, if the operation aims at causing material damages via an action in the cyberspace, its legality would be more dubious and would rather be described as pertaining to the destruction of the physical network/world. It is also likely that a distinction should be made, in the first case, at least in terms of Roes, between targeting operating sytems -sofware- and data.
II. Destruction of the physical network.
If propaganda belongs without doubt to the spectrum of the hostilities, it is though more difficult to satisfy in case of attack, the two criteria of article 52-2 of AP I. Indeed, if only the military objectives[44] can be the subject of an attack (art. 52-1), those are defined as the “objects which, by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization in the circumstances ruling at the time offers a definite military advantage”.
According to the “Final Report to the Prosecutor by the Committee established to review the NATO bombing campaign against the Federal Republic of Yugoslavia”, “disrupting government propaganda may help to undermine the moral of the population and the armed forces, but justifying an attack on a civilian facility on such grounds alone may not meet the “effective contribution to military action” and “definite military advantage” criteria required by the Additional Protocols”.
It is advisable to stress from the start that the report does not have the legal value of a judgment rendered by an international jurisdiction and that the report itself expressly qualifies the legal base justifying a strike on an installation intended for propaganda of “debatable” and not “irrelevant”.
1. The criterion of the effective contribution to military action.
The first condition, the effective contribution to military action, may be defined as an activity producing a specific effect on military action: propaganda contributes to the demoralization of enemy personnel and affect in all cases the pursuit of political and military objectives, like for example, the support of the population against an insurgent movement.
Propaganda having thus an impact on military operations or the political objectives assigned to the forces, the installations used to spread/broadcast it, contributes indeed to the military action within the conflict taken as a whole.
2. The criterion of the concrete and direct[45] military advantage
The second condition, the concrete and direct military advantage, appears more difficult to define since “concrete and direct” can be understood by ‘real, measurable’ and “caused immediately”. It is largely impossible to measure the precise effects to be expected from the destruction of an organization dedicated to propaganda: what would have been the quantifiable effect of a physical elimination of Dr. Joseph Goebbels on the ulterior course of the 2nd World War ? Admittedly the effect could only have been positive but it is probably impossible to measure it, in terms of efficiency and with regard to the campaign timeframe.
The same applies though, to a more consensual military objective such as a weapons factory: the loss of production (more or less measurable) has a negative effect on the enemy military operations but the military advantage thus acquired by the destruction of a military target cannot be measured precisely within the frame of the overall conflict. Indeed, it is not possible to determine the exact share which this event may have in the end state of the conflict taken as a whole.
However, the concrete and direct character of such a strategic advantage is generally not disputed since in the end, one does not quite as much take in consideration the concrete and direct character of the acquired advantage as the unquestionable or certain character of the expected effect.
Still, the concrete and direct, unquestionable character of the advantage must result from its measurable nature. The large quantity of academic and military writings around the concept of propaganda and psychological operations makes in our opinion a strong case in favor of the foreseeable effects of propaganda[46], and this may be found to be confirmed by its wider and wider uses in modern conflicts by the opposing parties.
Even if the concrete military advantage with regard to the overall conflict is not easily measured, it remains that the total or partial destruction, the capture or the neutralization of the installations intended for propaganda offer an unquestionable and certain military advantage.
One should add that LOAC give a strong indication with regard to the harmful nature of propaganda and the associated means. Thus, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, stipulates that the refuges for cultural goods should not be placed in the neighbourhood of “important military objective constituting a vulnerable points such as (…) broadcasting stations (…). (art 8.1.a). As professor Dinstein submits, there is here some evidence that at least since 1954, the infrastructure of propaganda, and by extension the propagandists, are regarded as legitimate targets.
C. Voluntary human shields.
The IG confuses the voluntary human shields with the involuntary human shields. Indeed, article 51-7 of AP II lays out that “The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations”: this wording does not cover explicitly the civilians exposing themselves to danger to slow down an enemy attack. The fact that the parties to the conflict should not direct the civilian population’s movements introduces an element of extraneity whereas article 51-7 underlines contrariwise the daily and regular movements of the civilian population.
If the civilian population, whose normal flow was deviated in order to protect military installations does not lose its protection[47], the civilians deliberately protecting by their presence these same installations are not covered under article 51-7 of AP II: they take a voluntary part in the displacement.
Decreasing our ability to move and to strike, using treacherously a special protection that they actually lose as they take a direct part in hostilities, voluntary human shields are legitimate targets.
D. Hackers.
In April and May 2007, and for three weeks, Estonia was the object of coordinated cyber attacks which caused the government’s operations and the public and private economic sector to stop and suffer a general slow down, to include the private use of networks by the citizens.
The present memo does not have for purpose to precisely define the level of violence necessary to qualify a situation of armed conflict, i.e. an act of war, nor does it intend to offer a precise view of the conditions under which an act of cyber war could be assimilated to an armed attack and consequently lead to the implementation of the law of armed conflicts for this new combat method[48].
Indeed, direct participation in hostilities is a concept broader than that of attack and thus of physical damage. Hacking techniques may or may not cause damage, regardless, it is enough in a NIAC frame that they generate harmful effects against the military capacity of one of the parties to the conflict or paralysis of systems particularly necessary for the civilian infrastructure of one of the parties to the conflict, in particular Treasury, banks, governmental system, health, transport and communications).
E. Political and/or religious leaders.
The political and/or religious leaders of an OAG often are the incarnation of the movement.
In order to protect their political leaders from military attacks or simply from arrest, the majority of the terrorist/insurgent organizations often resort to creating a dual structure with a political branch siding by a military branch : IRA, NSDAP, ETA, Fatah, FARCS and Hamas offer the same institutional characteristics where the political leader exhorts in general terms the followers to launch acts of violence or defines certain general objectives whose achievement is to be pursued by an autonomous military branch.
According to Clausewitz, the control of the policy cannot be separated from the control of the conflict. Indeed, if the decision, the planning and the control of attacks against certain objectives (civil or military) belong to the military leader, the decision to proclaim a truce or to start the conflict and thus all the attacks led by the military branch are ultimately decided by the political leader.
Thus the French CIA-0.8, above cited stresses the operational requirement “to behead [the] politico-administrative organization” of OAGs[49].
in 2004, Israel decided to lethally target sheik Yassin justifying the attack by his direct participation in hostilities. However, it is not because it exhorted and legitimized the terrorist attacks of the military branch of Hamas, but in reality, still according to Israël, because he was planning himself some operations.
The successor of Yassin, Dr. Rantissi, in the same way legitimizes the attacks and has the capacity to order a cease-fire: in remarks directed at the ''military wing'' of Hamas, he declared: '' The door is open for you to strike all places, all the time and using all means. ''[50]
If ever a political leader or a religious figure, having an effective authority, calls for the commission of serious violations of the law of armed conflicts, he or she must be regarded as directly participating in hostilities[51]. It would thus be the case with an imam who, with an unquestioned religious authority upon followers, would call for suicide bombings or the decapitation of prisoners.
2) The criticism of confusion between the principle of proportionality in the law of armed conflicts and the principle of proportionality within the frame of human rights law.
Many experts expressed reservations with regard to the confusion in the Interpretative Guidance[52] between these principles to be found in those two different set of laws. They consider that there is not any obligation in the law of armed conflicts to capture rather than to kill, and than to impose such an obligation amounts to mixing the human rights law and the law of armed conflicts to the detriment of the latter. Interpreting the principle of humanity in a direction well too generous, the ICRC makes a reasoning which carries the risk to mix the principle of proportionality as defined by the Human Rights law with the advisability of using the lethal force against a civilian taking a direct part in hostilities under a LOAC framework. Those legal frameworks are, if not mutually exclusive, not concurrently applicable when it comes to military action.
The IG as the same time as it states that there is no legal obligation to capture rather than to kill within the framework of the law of conflict[53] also stresses the idea that “the fact that a particular category of persons is not protected against offensive or defensive acts of violence is not equivalent to a legal entitlement to kill such persons without further considerations (IG p 78 eng version)”..
If it is true that the Israeli supreme Court has stated that civilians taking a direct part in hostilities cannot be attacked if less violent means can be employed in order to apprehend or render him/her harmless[54], it seems that this last jurisprudence has been based on national law and on the corpus of the human rights law, and not on the corpus of the law of armed conflicts.
To state that only the minimal force is authorized, the IG also utilizes the principles of the law of armed conflict of unnecessary suffering and military necessity[55], both very broad concepts which perimeter never were precisely defined, despite specific provisions in weapons law and in Hague and Geneva Conventions[56]. Neither is a common practice, internationally recognized established. The principles of the LOAC may be useful for educational purposes and as an analysis grid but cannot replace the careful examination of legally binding instruments.
For the time being there is indeed neither preceding jurisprudence nor State practice which would recognize as compulsory such a general constraint in the use of lethal force, based on the corpus of the law of armed conflicts. Actually, the restraints internationally accepted as jus positum in the use of the force are “the precautions in attack” which govern the direction, time and means of attack in order to, insofar as possible, reduce the losses and the damage known as collateral (principle of proportionality of the law of conflict) and prohibition to use certain means and methods of conflict being the subject of specific conventions already. The principle of humanity does “underlie and inform the entire normative framework of IHL”but is nevertheless limitatively implemented through specific provisions of the law[57].
The choice between capturing or killing a civilian taking a direct part in hostilities does not amount in any way to implementing a principle of law of armed conflicts but, within the applicable law, to making a command decision, consistent with extant military objectives : when the legitimacy of the targeting has been adjudicated, no other consideration predetermines the type of targeting, soft or lethal, ultimately applied under the prevailing circumstances, based on a military requirement/goal.
3) The assumption of non direct participation to the hostilities as applied to civilians.
A fundamental goal of the law of armed conflicts is the protection of the civilian population. The International Court of Justice has made of the principle of distinction[58] one of the cardinal principles of the international law. The protection of the civilian population is notably the purpose of AP I. Article 51-3 which at the section I “general protection against effects of hostilities” states that “Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities”, this wording being used as well in AP II, article 13.3. So the protection is the principle, and the loss of protection is an exception. It is then necessary to comply with the general rule as long as the conditions of the exception are not met, and in case of doubt, to consider that civilians are entitled to be protected from direct attacks.
The really important question in practice, more than the existence or not of a presumption/assumption consists in determining which degree of certainty is necessary, as long as all interested parties are in agreement with regard to recognizing the absolute requirement to take precautions before authorizing the targeting. The degree of certainty necessary is based nevertheless on what is practically feasible in the prevailing circumstances, by taking into account information as available, the urgency of the situation and the probable damage.
General conclusion.
The Interpretative Guidance restricts the targeting possibilities without generally accepted legal base or consideration to the nature of modern conflicts and its conduct. In order to prevent France from being led forcefully to comply with such rigid recommendations, the authors of this study propose a grid of national analysis likely to define, in strict accordance with the law of armed conflicts, what is a legitimate target in a DPH frame.
The criteria of a direct participation in hostilities are as follows :
1 a threshold of harmful effect in hostilities comprising of :
1. the regular character of this participation:
APPENDIX 1: Inventory of the various legitimate and illegitimate targets.
Cases table .xls
APPENDIX 2: Doctrinal references.
W. Hays Parks, Share IX off Direct the ICRC “Participation in Hostilities” Study : No Mandate, No Expertise, and Legally Incorrect, 42 N.Y.U. J. INT Law . & POL. 769 (2010).
Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation in hostilities” Interpretive Guidance, 42 N.Y.U. J. INT Law & POL. 641 (2010).
Michael NR. Schmitt, The Interpretive Guidance on the Concept of Direct
Participation in Hostilities: A Critical Analysis, Harvard National Security Journal (2010).
Michael NR. Schmitt, Deconstructing Direct Participation in Hostilities : The Constitutive Elements, 42 N.Y.U. J. INT Law. & POL. 697 (2010).
Bill Boothby, “And for such time as”: The Time Dimension to Direct Participation in Hostilities, 42 N.Y.U. J. INT’L L. & POL. 741 (2010).
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.
[1] CIA -0.8 Operations against asymmetrical threats N° 131/DEF/CICDE/NP 2008, May, 22th, p18
[2] Afghanistan since 2001, Tamoul conflict, Sudan, Somalia etc..
[3] Legal advisers in a operational command
[4] The IG study refers abundantly to the ICRC Comments about Geneva Conventions (GC) and Additional Protocols (AP) interpreted in the light of the Vienna Convention on treaties to which France is, as it were, not a Party.
[5] Cour de Cassation 13 mars 2001 “Kaddhafi”: international custom is a source of French criminal law.
[6] Nils Melzer ICRC, IG, 2009 p47
[7] “Attacks” means acts of violence against the adversary whether in offence or in defense” Art 49 AP I, 1977.
[8] IG p 48
[9] Idem .
[10] Which is a crime against humanity.
[11] Despite also as a matter of law, the prohibition of threat of violence mentioned at AP II, 13, para 2
[12] IG p 54
[13] IG p 66
[14] Idem
[15] Ibid p 34
[16] Idem
[17] Research regarding WMD?
[18] Ibid p 53
[19] Cf Art 1para 1 AP II
[20] Ibid p 71
[21] Nils Melzer, Keeping the balance between military necessity and humanity : a response to four critiques of the ICRC’s Interpreative Guidanceon the notion of direct participation in hostilities, NYU Journal of International Law and Politics, Spring 2010, p 888. It is required that an an harmful act be committed in support of a party to the conflict and to the detriment of the other to be considered as being linked to the hostilities. An individual regularly taking part in hostilities may then be considered as belonging to the armed group he supports with his action, even if acting unbeknownst to the group or without formal relation with that group.
[22] When literally, the one and only criterion for loss of protection from direct attack in jus positum is direct participation in hostilities itself, regardless of membership to an OAG.
[23] Acting under an OAG umbrella or not.
[24] IG P 71
[25] See Bible Matthews, XXVI-52.
[26] Declaration of Saint Petersburg, 1868, Art 3
[27] IG p 82
[28] Cf AP I, art 49-1
[29] Hague Convention IV,1907, art36 “An armistice suspends military operations by mutual agreement
between the belligerent parties.. »
[30] Ibidem art 40
[31] This definition is close to the concept of criminal conspiracy defined by article 450-1 of the French code.pénal Indeed, the criminal conspiracy constitutes a specific offense, independent from the crimes prepared against either the people or property, even when committed by the members of the criminal association: are taken into account all the preparatory acts aiming at the commission of a crime even if there is no intention to commit a crime in particular. Cass, Crim, February 8th, 1979 and Ibid December, 15th, 1993.
[32] Commodore Boothby “ ”And for such time as”:The time dimension to direct participation in hostilities”, p 75
[33] The Manhattan Project comes to mind and its nowadays counterparts in the form of “dirty bombs”.
[34] As a military J8 does..
[35] A propagandist as Joseph Goebbels may be subjected to direct attacks at all times during a conflict as well as the broadcasters from Radio Mille Collines during the Rwandan NIAC (see also AP I 13.2)
[36] Which is the case of persons threatened with physical retaliation if they abstain from taking part in hostilities.
[37] Which is the case with children soldiers before the age of 18. Cf Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2000
[38] Stefani, Levasseur, Bouloc, Précis de Droit pénal général,, Dalloz 17ème édition, p333
[39] Wasisnski, Clausewitz et le discours stratégique américain de 1945 à nos jours, Chap IV.
[40] Sir Basil Liddell Hart, “Strategy”
[41] Which in a XXIst century frame amounts to using modern media such as Internet, television etc.
[42] AAP 6, NATO Glossary of terms of military significance and their definitions for use in NATO
[43] See also AAP 6 “deception / déception :Those measures designed to mislead the enemy by manipulation, distortion, or falsification of evidence to induce him to react in a manner prejudicial to his interests.”
[44] AP I art 49.1 “’Attacks’ means acts of violence against the adversary whether in offence or in defence.”
[45] But see also « Précis », « precise » in the French authoritative version of AP I for concrete and direct which could be translated as measurable.
[46] JOWETT, G.,S., Propaganda and communication :the reemrgence of research tradition, Journal of commnication, Winter 1987, P 97-114
[47] AP I 51-8.
[48] AP I, 36
[49] CIA-0.8 les opérations contre un adversaire irrégulier, Mai 2009, p 19.
[50] Greg Myre, New York Times, March 24th, 2004.
[51] See also again, AP I,13.2.
[52] IG footnote N°212, p78
[53] “Apart from the prohibition or restriction of certain means and methods of warfare, however, the specific provisions of IHL do not expressly regulate the kind and degree of force permissible against legitimate military targets. ” (IG p78, english version)
[54] Judgment “targeted killings” para 40
[55] Nils Melzer, Keeping the balance between military necessity and humanity : a response to four critiques of the ICRC interpretative guidance on the notion of direct particpation in hostilities, NYU Journal of Interantional Law and Politics, Spring 2010, P 907
[56] H IV 23, (g), GC I, 33, GC IV,53, H CP 4 and 11, AP I 54 (5) and 62.
[57] The statement of Lauterpacht cited in the IG that "the law on these subjects [i.e. on the conduct of hostilities] must be shaped – so far as it can be shaped at all – by reference not to existing law but to more compelling considerations of humanity, of the survival of civilisation, and of the sanctity of the individual human being" (cited in: Commentary AP (above N 10), § 1394) shows the actual goal of the IG. But if the LOAC from its origins was meant to relieve the further suffering of participants to a conflict or the extent to which people who are not participants in a conflict become victims, it never intended to elevate world consciousness, or prevent States from waging war, in this case to eliminate combatants.
[58] ICJ Advisory Opinion. Legality of threat or use of nuclear weapons, N°96/23, July 8th ,1996, para 74-87
REFERENCES :
a) Geneva Conventions, 1949;
b) Additional protocols I and II to Geneva Conventions,1977;
c) Nils Melzer, Interpretative Guidance on the notion of direct participation in hostilities under international humanitarian law, 2009.
ENCLOSURES :
a) Inventory of various legitimate and illegitimate targets
b) Doctrinal references
The French Joint Staff (CICDE) has recently published its doctrine regarding counter insurrection fight, in “CIA-0.8” and “DIA-3.4.4”. These two documents do not provide the required[1] answers to the questions raised regarding the legality of the targeting of civilian participating in insurrections. Analysing in detail the constraints of the legal framework on non international armed conflicts are though, without doubt, of paramount importance to that doctrine.
Moreover, the evolution of the modern conflictuality[2] suggests that the engagement of our forces within a frame of non international armed conflict (NIAC) -even when internationalized- could be relatively more frequent than those taking place in an international armed conflict framework. Thus, the desirable “operative agility” is not enough to ensure success when defining the concrete methods of action in the field, when building a grid of legal analysis indicating what the legitimate targets are, based on the state of the existing law, its interpretations and practices, to, all in all, build a doctrine of the targeting in NIAC seems definitely required. The conversations carried out within the community of international lawyers as well as the expectations sometimes evoked within the targeting community, lead to thinking that a French standpoint may be considered to be necessary, its absence being sometimes poorly understood.
The authors of this study[3] developed, after exchanges conducted at the best level, the basis of what could be a French doctrine of the targeting in NIAC, offered hereafter.
The targeting of participants in an insurrection in a NIAC frame is based upon several provisions of the law of armed conflicts. Most immediately important is Article 13 subparagraph 3 of the additional Protocol II (AP II) to the Geneva Conventions, 1977, ratified by France on February 24, 1984 (without reservations) which reads “ Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take part a direct part in hostilities.”.
The law of armed conflicts, the practice of the States and international jurisprudence do not give any definition of the concept of direct participation in hostilities (DPH). The International Committee of the Red Cross (ICRC) has endeavoured to publish, with the assistance of some of the most prominent international experts, an Interpretative Guide on the Notion of Direct Participation in Hostilities under international law (IG)[4]. Of singular importance, this document appreciably restricts the possibility of targeting civilians taking a direct part in hostilities.
For lack of proactivity on this question, this restrictive definition may constrain our operations, in spite of its non binding legal nature: in the absence of a standpoint, the IG can become a standard by default, for lack of another reference, a practice, and/or acquire later on, the status of a custom under international law. However the simple establishment of a French doctrine is enough to prevent the formation of such a custom. Moreover, it is advisable to recall that if these IG recommendations are moulted in customary international law, a French soldier could, in the long term, be condemned by a court for a lack of observance of the criteria of the DPH established by the ICRC[5]. CDAOA, where the questions of targeting were always regarded as essential, proposes to remedy this risk by advancing a proposal for an alternative and coherent definition of the direct participation in hostilities, which can be then used as a basis for a standpoint or ministerial doctrine.
The direct participation in hostilities, such as it is interpreted by the ICRC (I), raises important questions. It must be re-examined in the light of what could be the position of the French ministry of defense (II).
I) The direct participation in hostilities according to the Interpretative Guidance: a critical approach.
The interpretation made by the IG of the DPH is restrictive and not easily compatible with the conduct of a modern conflict. Built around the debatable concept of organized armed group (A) the targeting of civilians taking a direct part in hostilities (B) can be executed, according to the IG, only during this participation (C) and in the light of the principle of humanity and necessity which lays at the foundation of the law of armed conflicts (D).
A) Discriminating between civilians and members of an organized armed group (OAG).
Traditionally, the law of armed conflicts distinguishes the combatants, who may be the subject of attacks, from the civilian population, which is protected insofar as it does not take directly part in hostilities.
Appearing in the AP II and following the conflicts of decolonization, the mention of OAG was never meant to create a new legal category beside that of civilians to whom a protection is afforded. It was only meant to determine the required level of organization from which the actions of civilians taking a direct part in hostilities make the situation of a State swing from internal disorders to a NIAC. Based upon this criterion, namely the belligerent nexus, the civilians taking a direct part in hostilities are thus distinguished from simple criminals. This mention of OAG was only meant to provide clarity and relevance in accordance with the summa divisio “international conflict” and “non international conflict” of the IHL.
However the IG, by focusing on the membership in an OAG, which is found to be wanting, at least, restricts the permanent targeting only to those members who do have a continuous combat function and does not take into account the very loose character of adhesion to a group of insurgents in modern conflicts. The permanent targeting should not be linked to the membership in any group but exclusively to the direct and regular participation in hostilities. That is why we believe that with regard to the targeting of civilians in NIAC, the only distinction to be made is as follows:
• The civilians not taking a direct part in hostilities;
• The civilians taking a direct part in hostilities.
Members of an organized armed group as a category simply do not exist as such in the law of armed conflicts.
B) Direct participation in hostilities (DPH) under the IG: three conditions.
The IG defines the DPH in the following way: “the notion of direct participation in hostilities refers to specific hostile acts carried out by civilians as part of the conduct of hostilities between parties to an armed conflict”[6]. The IG in this manner affirms the equivalence of the terms “attacks”[7] and “hostilities”. DPH supposes a participation in a specific act of violence. It requires that three conditions are met : a threshold of harm, a direct causal link, the presence of a belligerent nexus.
1) A threshold of harm.
The act of hostility must, first of all, have for probable consequence to negatively affect the military operations or the military capacity of a party to a conflict, or, alternatively, to inflict death, wounds or destruction to people or objects protected from direct attacks. The military operations are negatively affected by acts of sabotage, or disturbance of logistics, communications, or deployment[8]; the capture or the exercise of control on military personnel, objects or territories to the detriment of a party to the conflict; mine clearance, cyber attacks against military infrastructures, eavesdropping on a military command and the transmission of information of tactical value etc..[9]
However, by reducing the hostilities and the harmful effects which they generate to the addition of armed actions, the ICRC’s IG considerably limits the capacity of regular armies to engage the insurgents movements by lethal means. Indeed, the non-kinetic actions of insurgents are not taken into account: if the insurgents who had massacred French soldiers in the Uzbeen valley into 2008 were legitimate targets under the IG, other Taliban leaders having directed the filming of the rejoicings following combat, in an attempt to influence the French media with a view to decreasing the support of the French population for the fight, do not constitute, for that sole reason, legitimate targets according to the IG.
When it comes to attacks on non military objects, which the IG takes into consideration because of the link it may have with the overall conflict (belligerent nexus), to restrict the threshold of harm to “death, wounds or destruction to people or objects protected from direct attacks” also amounts to refusing to take into account cyberattacks whose economy, telecommunications and civilian companies can be the object of (to cause a stock exchange to crash, to paralyse public transport, to prevent the private banking transfers) without consideration to potentially disastrous consequential effects.
In a more worrying way, an offensive strike aiming at a paramilitary group preparing or even carrying out deportations[10] would be prohibited under the IG. So would be the attack of an insurgent chief ordering letters containing death threats be distributed at night, in order for example to prevent the orderly running of elections. In both cases under the reason that these acts pose no military threat[11] or do not actually constitute “death, wounds or destruction to people or objects protected from direct attacks” even if these actions directly threaten the mission, strategy and the objectives laid down by the UN Security Council, the international community and may, directly or not, lead to atrocities being committed,..
2) A direct causal link.
The IG requires a direct causal link between the act and the probable damage resulting from this act. The damage done may also be the result of a coordinated military operation of which, in this case, the act in question must be an integral part thereof. According to the ICRC, the damage must be carried out in only one causal step. It specifies that even if an act does not involve damage in only one causal step, it can constitute DPH, if it is an integral part of a coordinated military operation which directly causes damages[12]. It would be the case when training or assistance is provided for the execution of a specific military operation. A geographical or temporal proximity is not necessary: for example the emplacement of an improvised explosive device (IED).
The IG, when it comes to measures in preparation of an hostile act restricts then direct participation in hostilities “to preparatory measures aiming at a specific hostile act” whereas “preparatory measures aiming at establishing the general capacity to make unspecified hostile acts” constitute only indirect participation[13]. From there, a weaponeer loading an attack helicopter, or a mechanics refueling an attack boat, without more precisions regarding their mission, could not be targeted[14]. However supplying such means/weapons in a situation of conflict is a necessary condition to the release of an hostile act: one does not provide this kind of support without the conviction those means are going to be imminently used in hostilities.
From this IG definition on, civilians having logistic (providing power, gasoline, building materials) administrative or technical functions are protected from direct attack. Political leaders, recruiters, trainers, financers or propagandists[15], civilians whose function is limited to the purchase, the transportation, the manufacture or the maintenance of weapons or other equipment, or to the collection of information of a non tactical nature[16] are also protected from direct attacks. Scientific research[17] benefits from the same protection: an insurgent scientist working out new preparations for chemical weapons is fully protected under the IG, if he is not actually found mixing chemicals for a planned attack. In the same way, any activity in relation with the production and transportation of weapons (among them IEDs) or of equipment (except if within the framework of an actual military operation)[18] is excluded from the DPH because according to the IG criteria, it is neither necessary nor sufficient that the act be indispensable to the realization of the damage to incur a loss of protection.
Such a reasoning implies that a military engineer of the direction générale de l’armement (DGA), because he wears a uniform, shall be a legitimate target throughout all conflict’s duration, whereas an IED expert affiliated to insurgents may never be the subject of a lethal attack. Pushing this kind of reasoning to the limit, the utility of regular forces may very quickly be questioned since, to cite Douhet, the roots of the insurgency (its technicians) will never be extirpated. Being able to target only the emerged part of OAGs, the regular armies may see their presence in the field called into question.
3) A belligerent nexus.
For the IG, the act must, finally, be specifically designed to cause a direct damage in support of a party for the conflict to the detriment of another.
Thus, despite the harmful effect criminal armed groups would have when they more than once and equally attack friendly troops, adversaries, protected people and goods, they cannot be attacked as they act only for their own benefit and not in support of another party.
When it is not as such surprising that criminal groups, even if harmful to the population, cannot be made the subject of a military strike, it is contrariwise surprising not to be able to carry out military operations against criminals attacking our own troops regularly and to have to rely on to police action or on self-defence.
Concerning the hostile acts against the armed forces of the parties to the conflict, it is, we think, important to recall that the hostilities “shape” or constitute the relations between parties to that conflict: any serious interference in the conduct of the hostilities, i.e. against the armed forces themselves may be deemed a direct participation in hostilities.
Concerning the hostile acts committed to the detriment of protected people and/or objects, if the criminal group has a loose organization, then it does not take part directly in hostilities unless a link is satisfactorily established between that group and a party to the conflict. On the other hand, if it is sufficiently organized, under the lead of a responsible command, and exerts on a part of its territory enough control such as to enabling it to carry out continuous and concerted military operations[19], then this group can receive the qualification of party to the conflict: its action constitutes a direct participation in hostilities.
C) Duration of the direct participation in hostilities.
The IG attaches utmost importance to participating or not in an OAG. We expressed above the reservations CDAOA may have regarding that matter. Again, according to ICRC'S, there would be mainly two categories of civilians taking a direct part in these acts of specific hostilities:
• Those taking part in a continuous way by assuming a continued combat function within an OAG. They can be targeted as long as they do not give up their continuous combat function;
• Those taking part in hostilities in a sporadic way, whichever they are members or not of an OAG. They can be targeted but protection is granted back to them as soon as the commission of a specific hostile action has ended and return from that operation is finalized. This last interpretation is referred to as the strategy of the “revolving door”.
“The revolving door of civilian protection is an integral part, and not a dysfunction of IHL”. This position prohibits to target in a permanent way a “farmer during the day, insurgent at night” as long as he is not identified as a participant in an OAG with a continuous combat function.
1) Civilians taking a direct part in hostilities, members of an OAG.
Based upon the mention of OAG at article 1 of the Additional Protocol II (AP II), the IG distinguishes the civilians not taking part in hostilities from ;
• the civilians taking part indirectly in hostilities;
• the civilian members of an OAG;
• the civilians taking part directly but sporadically in hostilities, without regard to their membership to an OAG or not;
• civilian members of an OAG in a continuous combat function capacity.
By so doing, adhesion to an organized armed group becomes a criterion of distinction for targeting purposes. The admission of this concept, first of all, admittedly constitutes a progress expressing a commendable realism from the ICRC with a view to guaranteeing a satisfactory level of protection for “true civilians”. Nevertheless, it has for obvious result that the interval of time during which a person taking a direct part in hostilities can be targeted is limited, if one refers to the consequences of the “revolving door (3)”.
The civilians members of an OAG, taking a direct part in hostilities are supposed to do so in a continuous and direct way in hostilities if they assume a continuous combat function. Consequently, they constitute permanent legitimate targets as long as they do not surrender this function.
Surrendering a continuous combat function and recovering the benefit of the protection granted to civilians under article 13 of the AP II can be deducted and results from the observed behavior of the members of an OAG : a “certain time” spent without fighting renders a guerrillero immune to direct attack under the GC and AP without specifications regarding the exact amount of time required for this protection to be reafforded.
2) Civilians taking part in a spontaneous, unorganized or sporadic[20] way in hostilities.
This category includes the civilians members of an OAG who do not assume a continuous combat function as well as those who are not members of an OAG.
The IG makes the point that the civilians lose their protection against the direct attacks only for the duration of each specific act constituting a direct participation in hostilities, i.e. during each act of violence (including deployment and withdrawal). Civilians who are not members of an organised armed group but who take sporadically part in hostilities thus regain protection against attacks in the time intervals, where they do not commit any hostile act : it is the strategy of the “revolving door”.
Dr Nils Melzer specifies nevertheless that this protection is not granted to the civilians regularly taking part in hostilities, the so called farmer during the day and insurgent at night. For Melzer, it is possible to regard such a civilian as a de facto member of a non official armed group exerting a continuous combat function[21]. Consequently, he/she is not granted any protection as long as he/she exerts such a function.
Only civilians taking part in a spontaneous, sporadic or unorganized way in hostilities would be granted such protection in between those times when they directly participate in hostilities and those times where they carry out peaceful activities, even if they belong to an OAG.
Nils Melzer thus makes of the de facto participation to an OAG the first condition to target in an uninterrupted way a civilian, the other condition being that that civilian assumes a continuous combat function[22].
3) Concerning the strategy of the “revolving door”.
To turn the attention onto a criterion such as the participation in a continuous combat function leads to consider the question of the frequency of this participation. However it is not materially possible to distinguish between the civilians that one can target continuously and the civilians that one can target in a way as sporadic as their actions.
And especially when indeed, according to the IG, it is enough to cease taking part during a certain time in hostilities to regain the protection against attacks, even though at the same time participation with a combatant function to an OAG has not ceased.
It is consequently advisable to recall that within the framework of international armed conflicts (IAC), where guerrillas are concerned, the ICRC criticizes itself the strategy of the revolving door in its Comments, bearing para 1678 on Protocol I: “Any interpretation which would make it possible for the combatants under article 43 “to be demobilized” within their liking so as to regain their status of civilians, to later recover their status of combatants when the situation changes or when the military operations want it, would lead to cancel out all the progress made with the adoption of this article”. Moreover, in the same paragraph, the ICRC admits that “the guerrilla combatant when the nature of the hostilities requires it, may wear purely civilian outfit (art. 44-3); [however] it does not admit that this combatant has the combatant status when it is in action and the status of a civilian during the intervals". The ICRC concludes itself with these words: the Protocol does not recognize a combatant "à la carte".
It is admittedly questionable to refuse within the IAC frame that national liberation guerillas be granted the benefit of the “revolving door” for then imposing it upon the regular armies operations confronted with civilians taking a direct part in hostilities[23] under a NIAC frame: The questions and modus operandi are indeed identical.
Thus, making it possible for civilians to recover their protection as soon as they put away their weapons is a dysfunction of the law of conflict contrariwise to what Nils Melzer offers[24]: whoever engages in hostilities is committed by definition to pour blood and consequently to see his own blood spilled[25]. If this distinction does not confer immunity to the armed groups, it, on the other hand, may encourage civilians to take part in a sporadic way in hostilities and to cautiously not too often kill our soldiers: they will thus be able to make hay of IG’s recommendations, and to be “farmer during the day and sporadic insurgent at night” without ever be made the subject of a continuous targeting.
In fact, the IG gives to civilians sporadically taking part in hostilities the always welcome advantage of the surprise in attack and of immunity during their sleep. OAGs may then organize themselves around a string of dormant cells meant to be activated according to a pre-defined cycle so as to enjoy the immunity which the IG would then grant to them .
As soon as a civilian has directly taken part in hostilities, one can only deny that civilian a legal game of hide-and-seek that the ICRC admits with the IG: to do differently would be akin to legalizing perfidy for insurgents within the meaning of art. 37-1-c of AP I.
To restrict the scope of the DPH amounts to decreasing the operational capabilities of the regular armies by exposing them unnecessarily and to allowing the insurgent apparatus grow in impunity. It is then advisable to recall that “the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy”[26].
The jus in bello does not have for purpose to paralyse the action of the regular armies by weaving a legal cobweb: it is necessary to recall that it was conceived to decrease the suffering of the people who do not fight or have stopped fighting the opposing party.
Its raison d'être is not to prevent openly or indirectly the High Contracting Parties, i.e. the States, to wage war or conduct operations during a conflict.
To favor a certain understanding of the treaties which leads in non international conflicts to legal faults protecting insurgents who would treacherously benefit from their civilian status, plays against the spirit first and secondarily against the objectives of the Geneva Conventions and their Additional Protocols.
D) Principles of humanity and necessity reinterpreted in NIAC.
The recommendation IX of the IG states that the type and the acceptable degree of force against civilians who are “not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances”[27].
It would thus be necessary to capture rather than to kill civilians taking part in hostilities when that does not imply an additional risk for the armed forces or the civilian population.
The ICRC does not go as far as to transposing in the law of armed conflicts the restrictions regarding the use of force which prevail in article 2 of theConvention for the Protection of Human Rights and Fundamental Freedoms (European convention). Still, mixing the principles of humanity and proportionality in the act of legitimate violence against the enemy, leads to an unwarranted weakening of the freedom of choice of the commander.
There is no provision as such in the law of armed conflicts denying a commander the right to use only lethal force to fulfill his mission. Obviously, the means and methods at his disposal are not unlimited. But it only means that apart from the prohibitions and restrictions specifically mentioned by the law of armed conflicts, a commander is perfectly justified to use lethal force at his discretion to achieve his mission. The principle of military necessity so requires.
The use of a direct strategy or of an indirect one only belongs to the commander : the choice between capturing or killing does not have to be subjected to the principle of humanity that finds numerous other specified applications under the law of armed conflicts.
That orientation of the ICRC in the IG, in contradiction with the ordinary meaning to be given to the terms of the treaties in their context, must be absolutely avoided except if one intends to confine the armies in missions only befitting police forces.
II) A proposal for a French doctrine on the direct participation in hostilities.
In the light of the difficulties above mentioned, it is advisable that a French interpretation, not unduly restrictive but in accordance, strictly, with the jus positum be proposed, taking fully into account the considerations at stake (A) allowing for the conduct of an asymmetrical conflict (B).
A) A strict, not unduly restrictive interpretation
The IG gives a detailed attention to the concept of organized armed groups, the relevance of which is seriously questionable (1). Only a precise definition of the military operations (2) and hostilities (3) make it possible to obtain a grid of relevant analysis with regard to DPH (4) and to offer ideas about the duration of this participation (5).
1) Inexistence of the category of the members of an organized armed group.
Many academic authors see in the promotion of the OAG concept the possibility of targeting more easily the civilians siding with one of the parties to the conflict and taking part in a regular way in hostilities. Faring from the idea that in an non international armed conflict, a State is always opposed to an OAG, professor Yoram Dinstein considers that the direct participation in hostilities does not depend on a specific action attributed to a civilian but on his/her proven membership in an OAG. Indeed, since an OAG has for only vocation to take directly part in hostilities against a State, the membership of a civilian in one OAG qualifies him as a direct participant in hostilities so that he may legitimately be the subject of lethal targeting. Consequently, Dinstein considers that any action for OAG purposes, even “peaceful”, stems from DPH, whatever it is cooking or providing and managing the finances of the movement: striking remain possible for as long as the civilian is not de facto disengaging from the OAG. For practical/political reasons, the political leaders are not in this view subjected to targeting since the end of the armed struggle supposes to be able to negotiate with a valid (and alive) interlocutor.
It is however advisable to recall and stress the inexistence of the category of “members of organized armed groups” in NIAC law and its lack of relevance except maybe to distinguish a criminal act from an hostile act (criterion of belligerent nexus) : can/may be targeted whoever “takes directly part in hostilities for the duration of this participation”.
2) The definition of military operations as a precondition.
The definition of the hostilities provided below calling upon the concept of military operations, this last concept must be defined before that of hostilities.
The military operations do not only consist in military equipment or troop movements/activities to include weapons release but cover the whole spectrum of military activities conducted by a staff. Thus should be included/understood but not limited to:
• the command and control of the armed operations as well as armed operations themselves;
• the civil-military or cooperation missions;
• the information operations.
3) The definition of hostilities.
By defining hostilities as “the sum of the acts of violence within a conflict”, the IG intentionally equals the notion of “attacks”[28] to that of “hostilities” in order to restrict the targeting of the civilians.
a) Distinction of the hostilities in Jus Ad Bellum and Jus In Bello.
a. Hostilities within the meaning of Jus Ad Bellum.
The National Center for textual and lexical resources defines the hostilities as war itself for the purposes of Jus Ad Bellum.
B. Hostilities within the meaning of the Jus In Bello.
When the Hague Convention defines armistice as the suspension of military operations[29] while ensuring that a serious violation of armistice makes it possible for the offended Party to legitimately re-open hostilities[30], it poses the equivalence of the terms “military operations” and “hostilities” in the Jus In Bello .
It is so that the word “hostility” comes from the Latin “hostīlis, e” which designates any harmful act committed by the enemy. So “hostilities” must be disconnected from the concept of violence (without excluding it), because it comprises of any act having in fine for object or for effect to reduce the capabilities of one of the parties to the conflict.
Some authors, lastly, have suggested that, “hostilities” should not be included/understood as a sum of specific acts of hostility (or harmful acts) but as a globally understood activity so that the occurrence of an act of hostility must be reasonably certain even if not specified and has not yet occurred as such. So then, taking part in an act of non specific hostility amounts to directly participating in hostilities and leads to losing one’s general protection. Thus, enlisting in an OAG would incur a direct attack liability and a party to the conflict would not have to wait for a specific act of hostility to target that individual, that with a view to avoiding further damages to itself or protected persons or goods. The fact for that individual to enlist in an OAG where hostile acts are planned and regularly carried out, where DPH is reasonably certain, would suffice in itself to allow for a permanent targeting. But as mentioned above, the notion of OAG cannot be used to replace that of direct participation in hostilities. DPH imposes with the principle of general protection afforded to civilians, that it ceases to be granted when no doubt is left as to the evidence of the commission of an harmful act and at that more than once.
It is then advisable not to confuse “hostilities” within the meaning of Jus Ad Bellum i.e. the conflict/war, and the hostilities within the meaning of the Jus In Bello, the military operations without giving “hostilities” un unduly large spectrum .
b) The distinction between the hostile act and the preparatory measures.
Direct participation in hostilities covers two types of actions, each one being of a nature sufficient to suppress the protection associated with article 13-1 AP II: the first one is the hostile act and the second consists in preparatory measures to this act.
Hostile act include all harmful activities, comprising of acts of violence or not, conducted by one of the parties to the conflict or harmful to the protected people: propaganda, intimidation, IED emplacement, the collection of military value information, decision-making in military matters, use of weapons… “Hostile act” also includes activities which, although distinct, form an integral part of the hostile act, in particular the deployment, the redeployment and the supplying of weapons, in ammunition or gas of any weapon/equipment.
Preparatory measures are those required for the commission of hostile acts. Indeed, the later would not be possible unless a number of actions or several activities immediately necessary to the achievement of the considered hostile activities (and not of a specific hostile act) be undertaken: according to the Air Commodore Boothby, “it therefore seems proper to regard [such an activity] with the explicit purpose off doing something preparatory[31] to an act that itself amounts to participation in hostilities as amounting to DP”[32]. Preparatory measures may be:
• hiding of materials and/or personnel having committed of for the purposes of committing hostile acts;
• combat training (to include psychological preparation to suicide bombing);
• design and production of weapons (to include IED);
• supplying ammunition or gas;
• the maintenance of communication networks.
Proposal for a definition:
Hostilities are made up of any action, armed or not, which have as for object or for effect to negatively affect the military capacity or the military operations of a party to a conflict, or alternatively to harm the protected civilians or property when this action has a link with the armed conflict.
If the ICRC, in its comments, at paragraph 1679, defines the acts of hostility as covering “any act of war which by their nature or their purpose aims at concretely striking the personnel and the equipment of the enemy armed forces”, it also admits the existence of a certain margin of appreciation since “to restrict the concept of hostilities only to combat and military operations would be too narrow minded”. It thus does not appear impossible to include preparatory measures into “hostilities” but also the actions of a non kinetic character whose results on the military capabilities of a party present a sufficient degree of foreseeability (see below for the example of propaganda).
The authors of these actions are then de jure legitimate targets, which does not preempt the retained course of action regarding the type of targeting, lethal, or non lethal. It is though, important that the lethal targeting remains legally possible.
c) The distinction between the tactical and strategic levels.
The direct participation in hostilities does not cover only the hostile/harmful/detrimental acts and their preparatory measures at the tactical level: they have their equivalent at the upper levels.
To define hostilities as any action resulting in or having for objective to negatively affect the military capacity or the military operations of a party to the conflict, lead to include as DPH the decisions made in strategic matters such as the choice of general military orientations.
Thus, decision makers organizing the preparatory convoys for the supply of a possible military operation or allocating material and human resources may be the subject of lethal strikes. In the same way the people in charge of deciding or directing the orientation of military research[33] or of distributing appropriations[34] between various branches of an organized armed group, must be regarded as directly participating in hostilities. Because propaganda cannot by nature only have tactical effects, it must be generally classified like a hostile act of strategic level: consequently, only decision makers[35] can be targeted at any time and any place.
On the other hand, those who distribute propaganda media and distort information, propagate rumours without being themselves in charge of the information operations, that is, without an active role in the definition of the message, without being at the origin of the action of propaganda must be regarded merely as relays and not as legitimate targets : if by their action they contribute to a failure of our military operations, it is only a case of indirect participation in hostilities, unsufficient to make them lose their protection.
Preparatory measures regarding these hostile acts of a mostly strategic nature are primarily confined within specialists, or advisers and analysts : these civilians, because they take part directly in hostilities, constitute legitimate targets but cannot be targeted apart from their daily work, that is during the actual preparation of hostile acts.
4) Relative relevance of the IG criteria.
If the criteria of the IG do seem relevant, it is advisable to specify the range and consequences of certain assertions:
• An act negatively affecting a party to the conflict, or people and goods protected by the LOAC : the hostile act.
The purpose of the act must have for object or for effect to negatively affect the military operations or the military capability of a part to a conflict. Moreover, any harmful act related to the conflict, armed or not, towards protected people or protected objects is an intervention negatively affecting one of the parties to the conflict.
Thus, an insurgent hacker sabotaging, within the framework of the conflict, the banking sites/systems, a Stock Exchange network/servers or in real space, a nuclear power plant control system would lose its protection against lethal targeting. The same applies to a leader propagandist because his actions tend to affect negatively our military capacities.
• A necessary causal link with the act of hostility
There is direct participation in hostilities only in case of commission of a hostile act and/or a preparatory measure to the hostile act.
• A link with the conflict (belligerent nexus)
The act must be conceived to cause, directly or not, a damage to the detriment of a party to the conflict, within the framework of the conflict, but not necessarily in support of another party.
Indeed, during a conflict, autonomous groups can be formed and attack the parties to the conflict without favoring any or be willing to support one of them particularly. In a context of armed conflict, any attack against the armed forces of a party to the conflict should automatically be described as DPH making the authors lose their protection against attacks. Should be considered as direct participation in hostilities the commission of hostile acts to the detriment of protected people and protected objects when a link with a party to the conflict is established, or when the size (organization, concerted operations control over a portion of the territory..) of the criminal group is likely to qualify it like as a party to the conflict.
Thus, within the framework of a conflict, people kidnapping others in order to put them under the control of an OAG for a price when this situation influences the conduct of military operations or the allocation of military resources take directly part in hostilities.
Definition:
Takes directly part in hostilities any person who contributes immediately to the realization of the hostilities as defined above. Preparatory measures having for object or effect, in a manner reasonably certain, to contribute to the conduct of the hostilities as defined above are equivalent to a direct participation in hostilities.
5) Duration of the direct participation in hostilities.
If direct participation in hostilities leads to the loss of the special protection granted to civilians, the duration of the loss of this protection is not the same depending on whether the civilian in question commits a hostile act or participates in a preparatory measure.
a) Duration of direct participation in hostilities in the case of a hostile act.
According to Air Commodore (RAF) Bill Boothby, the “participation” can apply to specific actions taken separately as well as to an activity extended in time and globally considered. Thus, a civilian directly and regularly taking part in hostilities, takes part in hostilities during all the time where he continues to have such an activity. He is thus not protected from the attacks during the time intervals when he remains dormant.
Indeed, the goal of the LOAC and AP II is to protect the victims from the conflicts – whichever because they do not participate in hostilities or because they are hors de combat - not to ensure impunity to a person regularly taking part in hostilities: the strategy of the “revolving door” must be legally neutralized.
For Boothby, the true distinction is to be made between civilians who take part (in hostilities) in a isolated and sporadic way and civilians who take part in a repeated or persistent way, and not between the members of armed groups having a continuous combat function and others. For him, civilians taking part in a sporadic way must be protected from the attacks between the hostile acts, whereas those taking part in a repeated way must be able to be attacked as long as they do not cease taking part in hostilities defined as a general activity. Any person having voluntarily taken part more than once in a hostile act is considered to take part regularly in hostilities until the demonstration is satisfactorily provided of the suspension of this participation.
It is incidentally advisable to distinguish between the cases where the DPH is performed under duress and the cases where it results from a free choice. A person acting under a physical[36] or moral[37] constraint is not morally responsible for his/her acts; however, because the aggression is objectively characterized, one must conclude that “the attacks achieved by an insane person or a child can bring about legitimate responses”[38]. Nevertheless, because a person under duress cannot be presumed to be willing to carry out hostile acts continuously, that person should not be presumed as taking regularly part in hostilities and must thus be protected from any direct attack until his/her next direct participation in hostilities.
b) The duration of the direct participation in hostilities in the case of a preparatory measure
Preparatory measures, whereas legitimately regarded as direct participation in hostilities, are however acts objectively less harmful than the hostile act itself. Consequently, civilians regularly committing hostile acts can be targeted as long as they do not cease taking part in hostilities but civilians taking part in preparatory measures can be targeted only for as long as this actual participation lasts.
Proposal for definition:
The concept of “unless and for such time” such as it appears at article 13-3 of the Protocol Additional II is understood as follows:
Any person having voluntarily taken part more than once in a hostile act is considered to take part regularly in hostilities until evidence of the suspension of this participation is provided. The determination of this suspension must be made in good faith and reasonably using concrete, objective and verifiable facts.
Any person taking part in a preparatory measure aiming at the commission of a hostile act loses his/her protection for as long as this taking part in a preparatory measure lasts.
B) An approach in adequacy with the conduct of an asymmetrical conflict.
The approach hereby offered has the advantage of maintaining a high level of liberty in the choice of the tactics to be used by the commander (1) while challenging the confusion that the IG allows to settle between the principle of proportionality of the law of armed conflicts and the principle of proportionality of the human rights law (2). The latitude conferred on the commander is however moderated by the principle of doubt regarding the civilian’s direct participation in hostilities (3).
1) Safeguarding the freedom of choice of the commander.
a) A refusal to condemn the principle of the indirect strategy.
In his “Strategy”, Sir Basil Liddell Hart develops the most clearly systematized ideas regarding indirect approach: Liddell Hart recognizes the principle according to which the military objectives second the political purposes, shows that the strategy itself is subjected to the “Grand Strategy”, insists on the concepts of surprise, movement, economy of forces, disruption of the enemy rather than its destruction[39].
How is disruption obtained? Threatening the supply lines of the enemy seems obvious but there are other operations that can destabilize the enemy psychologically, such as for example disturbing its lines of communication. “To cut the lines of communication of an army is to paralyse its material organization, to close its line of retreat is to paralyse its moral organization; and to destroy the internal lines of communication by which orders and reports are transmitted is to paralyse its nervous system, the essential connection between the brain and the body”[40]. To neutralize the system on which all the effort at conflict of the adversary rests is more effective than to only attack its military operations.
b) Legitimate examples of targets.
The understanding offered here of the DPH, the suggested legal solution, takes into account the realities of modern conflicts and has the advantage of not barring the structures of support of OAGs from being targeted in consideration of the fact that no operation can take place without a financial, logistic organization and orderly communications. Indeed, it would be illogical to fight enemy armed forces if their infrastructure remains intact, because sanctuarized by a certain understanding of the law of armed conflicts
It is also a matter of common sense since, for example, under the interpretation of DPH here favored, the IED experts who consciously produce the bombs or create new devices without knowing where and when they shall be used or without emplacing them, would not be protected behind a Byzantine legal screen. In the same way the political leaders of OAGs could be legitimately targeted since that they are the living incarnation of the insurgent movement and in fact lead the campaign.
a. The elimination of propagandists
I. Propaganda as core part of hostilities.
In “The Art of War”, Sun Tzu lectures his reader at the same time about combat tactics and influence techniques. For him, “Those who are experts in the art of war win over the enemy armies without combat. They take cities without attacking and throw over a State without prolonged operations". Numerous precepts regarding influence techniques can be found in “The Art of War” : to discredit the enemy leaders, to disorganize the authority, to ridicule the traditions, to plant discord between the citizens, to disrupt the economy, to spread amorality and vice, to use “vile men” and to draw up the young people against the old ones[41].
Influence techniques are part of the corpus of military doctrines and are thoroughly used in military operations by several States. In particular, the Atlantic Alliance in a proactive way defines these techniques as information operations (INFO-OPS) and among them PSY OPS. They are “planned psychological activities, aimed in peace time as in times of conflict at hostile or friendly public or at neutral ones, with a view to influencing attitudes and behaviors affecting the achievement of political and military objectives. They include strategic psychological activities, psychological consolidation activities and battle field psychological activities ”[42].
Affecting the achievement of the political and military objectives of one of the parties to the conflict, INFO-OPS/PSYOPS are part of the hostilities and find all their place in military command structures as well as in insurgents command and control structures .
II. The targeting of the propagandists.
The action of propagandists has a harmful effect on our troops or the civilian population, and must be included in the definition of “hostilities”[43]. Consequently any enemy leader at the head of a propaganda campaign is considered as taking directly part in hostilities and may be the subject of an attack within the meaning of article 49-1 of the Additional Protocol I (AP I).
B. The neutralization of the propaganda virtual or physical network
I. The neutralization of the virtual network.
Article 49-3 of AP I lays out that the rules relating to general protection against the effects of the hostilities apply “to any land, air or sea warfare which may affect, the civilian population, individual civilians or civilian objects on land”.
Operations in cyberspace being unrelated to a land, air or naval operation, those operations do not seem to require that military targets and objects of a civil nature be distinguished. Furthermore, cyberspace objects being of an immaterial nature, their destruction do not seem to be covered /prohibited (see also AP II 14).
Consequently, it is thus legal to neutralize (even definitively) any virtual network or any Internet site being used for the diffusion of enemy propaganda. However, if the operation aims at causing material damages via an action in the cyberspace, its legality would be more dubious and would rather be described as pertaining to the destruction of the physical network/world. It is also likely that a distinction should be made, in the first case, at least in terms of Roes, between targeting operating sytems -sofware- and data.
II. Destruction of the physical network.
If propaganda belongs without doubt to the spectrum of the hostilities, it is though more difficult to satisfy in case of attack, the two criteria of article 52-2 of AP I. Indeed, if only the military objectives[44] can be the subject of an attack (art. 52-1), those are defined as the “objects which, by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization in the circumstances ruling at the time offers a definite military advantage”.
According to the “Final Report to the Prosecutor by the Committee established to review the NATO bombing campaign against the Federal Republic of Yugoslavia”, “disrupting government propaganda may help to undermine the moral of the population and the armed forces, but justifying an attack on a civilian facility on such grounds alone may not meet the “effective contribution to military action” and “definite military advantage” criteria required by the Additional Protocols”.
It is advisable to stress from the start that the report does not have the legal value of a judgment rendered by an international jurisdiction and that the report itself expressly qualifies the legal base justifying a strike on an installation intended for propaganda of “debatable” and not “irrelevant”.
1. The criterion of the effective contribution to military action.
The first condition, the effective contribution to military action, may be defined as an activity producing a specific effect on military action: propaganda contributes to the demoralization of enemy personnel and affect in all cases the pursuit of political and military objectives, like for example, the support of the population against an insurgent movement.
Propaganda having thus an impact on military operations or the political objectives assigned to the forces, the installations used to spread/broadcast it, contributes indeed to the military action within the conflict taken as a whole.
2. The criterion of the concrete and direct[45] military advantage
The second condition, the concrete and direct military advantage, appears more difficult to define since “concrete and direct” can be understood by ‘real, measurable’ and “caused immediately”. It is largely impossible to measure the precise effects to be expected from the destruction of an organization dedicated to propaganda: what would have been the quantifiable effect of a physical elimination of Dr. Joseph Goebbels on the ulterior course of the 2nd World War ? Admittedly the effect could only have been positive but it is probably impossible to measure it, in terms of efficiency and with regard to the campaign timeframe.
The same applies though, to a more consensual military objective such as a weapons factory: the loss of production (more or less measurable) has a negative effect on the enemy military operations but the military advantage thus acquired by the destruction of a military target cannot be measured precisely within the frame of the overall conflict. Indeed, it is not possible to determine the exact share which this event may have in the end state of the conflict taken as a whole.
However, the concrete and direct character of such a strategic advantage is generally not disputed since in the end, one does not quite as much take in consideration the concrete and direct character of the acquired advantage as the unquestionable or certain character of the expected effect.
Still, the concrete and direct, unquestionable character of the advantage must result from its measurable nature. The large quantity of academic and military writings around the concept of propaganda and psychological operations makes in our opinion a strong case in favor of the foreseeable effects of propaganda[46], and this may be found to be confirmed by its wider and wider uses in modern conflicts by the opposing parties.
Even if the concrete military advantage with regard to the overall conflict is not easily measured, it remains that the total or partial destruction, the capture or the neutralization of the installations intended for propaganda offer an unquestionable and certain military advantage.
One should add that LOAC give a strong indication with regard to the harmful nature of propaganda and the associated means. Thus, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, stipulates that the refuges for cultural goods should not be placed in the neighbourhood of “important military objective constituting a vulnerable points such as (…) broadcasting stations (…). (art 8.1.a). As professor Dinstein submits, there is here some evidence that at least since 1954, the infrastructure of propaganda, and by extension the propagandists, are regarded as legitimate targets.
C. Voluntary human shields.
The IG confuses the voluntary human shields with the involuntary human shields. Indeed, article 51-7 of AP II lays out that “The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations”: this wording does not cover explicitly the civilians exposing themselves to danger to slow down an enemy attack. The fact that the parties to the conflict should not direct the civilian population’s movements introduces an element of extraneity whereas article 51-7 underlines contrariwise the daily and regular movements of the civilian population.
If the civilian population, whose normal flow was deviated in order to protect military installations does not lose its protection[47], the civilians deliberately protecting by their presence these same installations are not covered under article 51-7 of AP II: they take a voluntary part in the displacement.
Decreasing our ability to move and to strike, using treacherously a special protection that they actually lose as they take a direct part in hostilities, voluntary human shields are legitimate targets.
D. Hackers.
In April and May 2007, and for three weeks, Estonia was the object of coordinated cyber attacks which caused the government’s operations and the public and private economic sector to stop and suffer a general slow down, to include the private use of networks by the citizens.
The present memo does not have for purpose to precisely define the level of violence necessary to qualify a situation of armed conflict, i.e. an act of war, nor does it intend to offer a precise view of the conditions under which an act of cyber war could be assimilated to an armed attack and consequently lead to the implementation of the law of armed conflicts for this new combat method[48].
Indeed, direct participation in hostilities is a concept broader than that of attack and thus of physical damage. Hacking techniques may or may not cause damage, regardless, it is enough in a NIAC frame that they generate harmful effects against the military capacity of one of the parties to the conflict or paralysis of systems particularly necessary for the civilian infrastructure of one of the parties to the conflict, in particular Treasury, banks, governmental system, health, transport and communications).
E. Political and/or religious leaders.
The political and/or religious leaders of an OAG often are the incarnation of the movement.
In order to protect their political leaders from military attacks or simply from arrest, the majority of the terrorist/insurgent organizations often resort to creating a dual structure with a political branch siding by a military branch : IRA, NSDAP, ETA, Fatah, FARCS and Hamas offer the same institutional characteristics where the political leader exhorts in general terms the followers to launch acts of violence or defines certain general objectives whose achievement is to be pursued by an autonomous military branch.
According to Clausewitz, the control of the policy cannot be separated from the control of the conflict. Indeed, if the decision, the planning and the control of attacks against certain objectives (civil or military) belong to the military leader, the decision to proclaim a truce or to start the conflict and thus all the attacks led by the military branch are ultimately decided by the political leader.
Thus the French CIA-0.8, above cited stresses the operational requirement “to behead [the] politico-administrative organization” of OAGs[49].
in 2004, Israel decided to lethally target sheik Yassin justifying the attack by his direct participation in hostilities. However, it is not because it exhorted and legitimized the terrorist attacks of the military branch of Hamas, but in reality, still according to Israël, because he was planning himself some operations.
The successor of Yassin, Dr. Rantissi, in the same way legitimizes the attacks and has the capacity to order a cease-fire: in remarks directed at the ''military wing'' of Hamas, he declared: '' The door is open for you to strike all places, all the time and using all means. ''[50]
If ever a political leader or a religious figure, having an effective authority, calls for the commission of serious violations of the law of armed conflicts, he or she must be regarded as directly participating in hostilities[51]. It would thus be the case with an imam who, with an unquestioned religious authority upon followers, would call for suicide bombings or the decapitation of prisoners.
2) The criticism of confusion between the principle of proportionality in the law of armed conflicts and the principle of proportionality within the frame of human rights law.
Many experts expressed reservations with regard to the confusion in the Interpretative Guidance[52] between these principles to be found in those two different set of laws. They consider that there is not any obligation in the law of armed conflicts to capture rather than to kill, and than to impose such an obligation amounts to mixing the human rights law and the law of armed conflicts to the detriment of the latter. Interpreting the principle of humanity in a direction well too generous, the ICRC makes a reasoning which carries the risk to mix the principle of proportionality as defined by the Human Rights law with the advisability of using the lethal force against a civilian taking a direct part in hostilities under a LOAC framework. Those legal frameworks are, if not mutually exclusive, not concurrently applicable when it comes to military action.
The IG as the same time as it states that there is no legal obligation to capture rather than to kill within the framework of the law of conflict[53] also stresses the idea that “the fact that a particular category of persons is not protected against offensive or defensive acts of violence is not equivalent to a legal entitlement to kill such persons without further considerations (IG p 78 eng version)”..
If it is true that the Israeli supreme Court has stated that civilians taking a direct part in hostilities cannot be attacked if less violent means can be employed in order to apprehend or render him/her harmless[54], it seems that this last jurisprudence has been based on national law and on the corpus of the human rights law, and not on the corpus of the law of armed conflicts.
To state that only the minimal force is authorized, the IG also utilizes the principles of the law of armed conflict of unnecessary suffering and military necessity[55], both very broad concepts which perimeter never were precisely defined, despite specific provisions in weapons law and in Hague and Geneva Conventions[56]. Neither is a common practice, internationally recognized established. The principles of the LOAC may be useful for educational purposes and as an analysis grid but cannot replace the careful examination of legally binding instruments.
For the time being there is indeed neither preceding jurisprudence nor State practice which would recognize as compulsory such a general constraint in the use of lethal force, based on the corpus of the law of armed conflicts. Actually, the restraints internationally accepted as jus positum in the use of the force are “the precautions in attack” which govern the direction, time and means of attack in order to, insofar as possible, reduce the losses and the damage known as collateral (principle of proportionality of the law of conflict) and prohibition to use certain means and methods of conflict being the subject of specific conventions already. The principle of humanity does “underlie and inform the entire normative framework of IHL”but is nevertheless limitatively implemented through specific provisions of the law[57].
The choice between capturing or killing a civilian taking a direct part in hostilities does not amount in any way to implementing a principle of law of armed conflicts but, within the applicable law, to making a command decision, consistent with extant military objectives : when the legitimacy of the targeting has been adjudicated, no other consideration predetermines the type of targeting, soft or lethal, ultimately applied under the prevailing circumstances, based on a military requirement/goal.
3) The assumption of non direct participation to the hostilities as applied to civilians.
A fundamental goal of the law of armed conflicts is the protection of the civilian population. The International Court of Justice has made of the principle of distinction[58] one of the cardinal principles of the international law. The protection of the civilian population is notably the purpose of AP I. Article 51-3 which at the section I “general protection against effects of hostilities” states that “Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities”, this wording being used as well in AP II, article 13.3. So the protection is the principle, and the loss of protection is an exception. It is then necessary to comply with the general rule as long as the conditions of the exception are not met, and in case of doubt, to consider that civilians are entitled to be protected from direct attacks.
The really important question in practice, more than the existence or not of a presumption/assumption consists in determining which degree of certainty is necessary, as long as all interested parties are in agreement with regard to recognizing the absolute requirement to take precautions before authorizing the targeting. The degree of certainty necessary is based nevertheless on what is practically feasible in the prevailing circumstances, by taking into account information as available, the urgency of the situation and the probable damage.
General conclusion.
The Interpretative Guidance restricts the targeting possibilities without generally accepted legal base or consideration to the nature of modern conflicts and its conduct. In order to prevent France from being led forcefully to comply with such rigid recommendations, the authors of this study propose a grid of national analysis likely to define, in strict accordance with the law of armed conflicts, what is a legitimate target in a DPH frame.
The criteria of a direct participation in hostilities are as follows :
1 a threshold of harmful effect in hostilities comprising of :
- armed harmful acts.
- harmful acts of a non kinetic nature.
- hostile acts, of which, acts constituting an integral part of the former, are by nature part of the hostilities.
- preparatory measures to hostile acts are equivalent to hostilities.
- the act must be designed to cause or must be willingly at the origin of a damage to the detriment of a party to the conflict and within the framework of the conflict but not necessarily in support to another party.
- criminals attacking a party to the conflict are considered as taking part directly in hostilities.
- criminals attacking protected people and objects do not take part directly in hostilities except if acting on behalf of a party to the conflict or if their activity reaches the threshold of organization making them a party to the conflict.
1. the regular character of this participation:
- to take part directly but only once in hostilities grants the recovery of protection at the end of the participation in hostilities.
- to take part directly and more than once in hostilities leads to a permanent targeting as long as the engagement in hostilities lasts.
- to take part directly but under physical or moral duress in hostilities is not equivalent to a regular participation in hostilities.
- the nature of the act qualifying for direct participation in hostilities :
- to take part directly and regularly in hostilities via the commission of a hostile act allows a permanent targeting
- protection from direct attack should be granted at the end of the commission of a preparatory measure when regarded as direct and regular participation in hostilities.
APPENDIX 1: Inventory of the various legitimate and illegitimate targets.
Cases table .xls
APPENDIX 2: Doctrinal references.
W. Hays Parks, Share IX off Direct the ICRC “Participation in Hostilities” Study : No Mandate, No Expertise, and Legally Incorrect, 42 N.Y.U. J. INT Law . & POL. 769 (2010).
Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation in hostilities” Interpretive Guidance, 42 N.Y.U. J. INT Law & POL. 641 (2010).
Michael NR. Schmitt, The Interpretive Guidance on the Concept of Direct
Participation in Hostilities: A Critical Analysis, Harvard National Security Journal (2010).
Michael NR. Schmitt, Deconstructing Direct Participation in Hostilities : The Constitutive Elements, 42 N.Y.U. J. INT Law. & POL. 697 (2010).
Bill Boothby, “And for such time as”: The Time Dimension to Direct Participation in Hostilities, 42 N.Y.U. J. INT’L L. & POL. 741 (2010).
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.
[1] CIA -0.8 Operations against asymmetrical threats N° 131/DEF/CICDE/NP 2008, May, 22th, p18
[2] Afghanistan since 2001, Tamoul conflict, Sudan, Somalia etc..
[3] Legal advisers in a operational command
[4] The IG study refers abundantly to the ICRC Comments about Geneva Conventions (GC) and Additional Protocols (AP) interpreted in the light of the Vienna Convention on treaties to which France is, as it were, not a Party.
[5] Cour de Cassation 13 mars 2001 “Kaddhafi”: international custom is a source of French criminal law.
[6] Nils Melzer ICRC, IG, 2009 p47
[7] “Attacks” means acts of violence against the adversary whether in offence or in defense” Art 49 AP I, 1977.
[8] IG p 48
[9] Idem .
[10] Which is a crime against humanity.
[11] Despite also as a matter of law, the prohibition of threat of violence mentioned at AP II, 13, para 2
[12] IG p 54
[13] IG p 66
[14] Idem
[15] Ibid p 34
[16] Idem
[17] Research regarding WMD?
[18] Ibid p 53
[19] Cf Art 1para 1 AP II
[20] Ibid p 71
[21] Nils Melzer, Keeping the balance between military necessity and humanity : a response to four critiques of the ICRC’s Interpreative Guidanceon the notion of direct participation in hostilities, NYU Journal of International Law and Politics, Spring 2010, p 888. It is required that an an harmful act be committed in support of a party to the conflict and to the detriment of the other to be considered as being linked to the hostilities. An individual regularly taking part in hostilities may then be considered as belonging to the armed group he supports with his action, even if acting unbeknownst to the group or without formal relation with that group.
[22] When literally, the one and only criterion for loss of protection from direct attack in jus positum is direct participation in hostilities itself, regardless of membership to an OAG.
[23] Acting under an OAG umbrella or not.
[24] IG P 71
[25] See Bible Matthews, XXVI-52.
[26] Declaration of Saint Petersburg, 1868, Art 3
[27] IG p 82
[28] Cf AP I, art 49-1
[29] Hague Convention IV,1907, art36 “An armistice suspends military operations by mutual agreement
between the belligerent parties.. »
[30] Ibidem art 40
[31] This definition is close to the concept of criminal conspiracy defined by article 450-1 of the French code.pénal Indeed, the criminal conspiracy constitutes a specific offense, independent from the crimes prepared against either the people or property, even when committed by the members of the criminal association: are taken into account all the preparatory acts aiming at the commission of a crime even if there is no intention to commit a crime in particular. Cass, Crim, February 8th, 1979 and Ibid December, 15th, 1993.
[32] Commodore Boothby “ ”And for such time as”:The time dimension to direct participation in hostilities”, p 75
[33] The Manhattan Project comes to mind and its nowadays counterparts in the form of “dirty bombs”.
[34] As a military J8 does..
[35] A propagandist as Joseph Goebbels may be subjected to direct attacks at all times during a conflict as well as the broadcasters from Radio Mille Collines during the Rwandan NIAC (see also AP I 13.2)
[36] Which is the case of persons threatened with physical retaliation if they abstain from taking part in hostilities.
[37] Which is the case with children soldiers before the age of 18. Cf Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2000
[38] Stefani, Levasseur, Bouloc, Précis de Droit pénal général,, Dalloz 17ème édition, p333
[39] Wasisnski, Clausewitz et le discours stratégique américain de 1945 à nos jours, Chap IV.
[40] Sir Basil Liddell Hart, “Strategy”
[41] Which in a XXIst century frame amounts to using modern media such as Internet, television etc.
[42] AAP 6, NATO Glossary of terms of military significance and their definitions for use in NATO
[43] See also AAP 6 “deception / déception :Those measures designed to mislead the enemy by manipulation, distortion, or falsification of evidence to induce him to react in a manner prejudicial to his interests.”
[44] AP I art 49.1 “’Attacks’ means acts of violence against the adversary whether in offence or in defence.”
[45] But see also « Précis », « precise » in the French authoritative version of AP I for concrete and direct which could be translated as measurable.
[46] JOWETT, G.,S., Propaganda and communication :the reemrgence of research tradition, Journal of commnication, Winter 1987, P 97-114
[47] AP I 51-8.
[48] AP I, 36
[49] CIA-0.8 les opérations contre un adversaire irrégulier, Mai 2009, p 19.
[50] Greg Myre, New York Times, March 24th, 2004.
[51] See also again, AP I,13.2.
[52] IG footnote N°212, p78
[53] “Apart from the prohibition or restriction of certain means and methods of warfare, however, the specific provisions of IHL do not expressly regulate the kind and degree of force permissible against legitimate military targets. ” (IG p78, english version)
[54] Judgment “targeted killings” para 40
[55] Nils Melzer, Keeping the balance between military necessity and humanity : a response to four critiques of the ICRC interpretative guidance on the notion of direct particpation in hostilities, NYU Journal of Interantional Law and Politics, Spring 2010, P 907
[56] H IV 23, (g), GC I, 33, GC IV,53, H CP 4 and 11, AP I 54 (5) and 62.
[57] The statement of Lauterpacht cited in the IG that "the law on these subjects [i.e. on the conduct of hostilities] must be shaped – so far as it can be shaped at all – by reference not to existing law but to more compelling considerations of humanity, of the survival of civilisation, and of the sanctity of the individual human being" (cited in: Commentary AP (above N 10), § 1394) shows the actual goal of the IG. But if the LOAC from its origins was meant to relieve the further suffering of participants to a conflict or the extent to which people who are not participants in a conflict become victims, it never intended to elevate world consciousness, or prevent States from waging war, in this case to eliminate combatants.
[58] ICJ Advisory Opinion. Legality of threat or use of nuclear weapons, N°96/23, July 8th ,1996, para 74-87