This is the second part in a series of a weekly commentaries on the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, adopted by the Assembly of the International Committee of the Red Cross on February 26, 2009.
The first caveat for the Interpretive Guidance is found on the first page of the document, and reads: “the 10 recommendations made by the Interpretive Guidance, as well as the accompanying commentary, do not endeavour to change binding rules of customary or treaty [international humanitarian law (IHL)], but reflect the ICRC’s institutional position as to how existing IHL should be interpreted in light of the circumstances prevailing in contemporary armed conflicts.” Although the Interpretive Guidance was the end product of a joint project initiated by the T.C.M. Asser Institute and the ICRC to clarify the definition of “direct participation in hostilities,” and included five meetings of between 40 and 50 experts in IHL from academic, government, NGO and military backgrounds, the resulting Guidance “does not necessarily reflect a unanimous view or majority opinion of the experts.” Ultimately, the Guidance is solely the ICRC position on the meaning of “direct participation” in IHL.
The Interpretive Guidance states that although civilians have always been present on the battlefield or indirectly participated in hostilities, providing service and support— food, shelter, equipment, weapons, political, economic and administrative support—the nature of current armed conflicts blur the line between civilians and combatants and pose problems for distinction on the battlefield. An unprecedented number of contractors have been used in the conflicts in Iraq and Afghanistan, filling not only combat service and support (CSS) roles—food, shelter, maintenance and other logistical missions—but also fill combat service (CS) missions—armed security details, intelligence gathering, prisoner detention and interrogation—missions that require civilian contractors to work within a chain of command, openly carry arms and wear uniforms or distinctive emblems. On the other end of the spectrum, many of the current international and non-international armed conflicts find traditional military forces facing insurgent or rebel groups who do not openly carry arms or wear uniforms, and much of the fighting is taking place in civilian population centers.
The Interpretive Guidance seeks to answer three key legal questions that the ICRC believes are required for the principle of distinction—to distinguish between civilian and armed forces and between civilians who do and do not directly participate in hostilities. Those three questions are: (1) “who is considered a civilian for the purposes of the principle of distinction,” (2) “what conduct amounts to direct participation in hostilities,” and (3) “what modalities govern the loss of protection against direct attack”?
Part III of this series will explore the first two sections of the Interpretive Guidance—the concept of “civilian” in international armed conflict and non-international armed conflict.
Click here to download the full text of the IRCR commentary