This is the third 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 ICRC explains that several changes on the modern battlefield necessitated a new look at civilian participation in hostilities. The shift of hostilities into population centers increases civilian intermingling with armed actors, which consequently brings civilians into what might have been distinctly military operations on a linear battlefield—building shelters, collecting and growing food, transporting supplies, law enforcement, providing medical aid and other routine civilian occupations with military counterparts.
Civilians in international armed conflict are neither member of the armed forces of parties to an armed conflict nor participants in levée en masse. This ICRC guidance points out that, for the principle of distinction in international humanitarian law (Additional Protocol I to the Geneva Conventions (AP I)), everyone who does not fit into one of the two aforementioned categories is a civilian, even if they are participating in hostilities.
Article 43 of AP I states that the armed forces of a party to a conflict include all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates. Geneva Convention III article 4(A)(2) gives the requirements for POW status of a militia, volunteer group, or organized resistance movement—that they are under a responsible command, carry arms openly, have a fixed distinctive insignia and accord to the laws of war.
The ICRC Guidance states that, although irregular armed forces might not meet the requirements set out above, it would still make sense to consider them members of the armed forces of a party to the conflict—to avoid placing them under the more protective legal regime afforded civilians. However, in making this argument, the ICRC ignores the intentional gap left between the protection of Geneva Conventions III and IV, a gap that AP I article 75 was explicitly created to fill. Members of irregular armed groups can loose the protections afforded civilians under Geneva Convention IV, yet fail to meet the standards set out in Geneva Convention III for the protection of POWs.
Groups engaged in organized armed violence against a party engaged in international armed conflict, according to the ICRC Guidance, are not members of a party to an armed conflict, and therefore must be regarded as civilians. The Guidance points to a decision by the Israeli Court of Justice, Public Committee Against Torture et al. v. The Government of Israel, et al., (HCJ 769/02), which found that independent Palestinian groups operating in the context of a belligerent occupation are civilians for the purposes of IHL. However, the Court also found that “a civilian who has joined a terrorist organization which has become his ‘home’, and in the framework of his role in that organization he commits a chain of hostilities, with short periods of rest between them, looses his immunity from attack ‘for such time’ as he is committing the chain of acts. Indeed, regarding such a civilian, the rest between hostilities is nothing other than preparation for the next hostility.” This suggests that, although members of such a group are considered civilians for the purposes of IHL, they have lost any protection offered to civilians, thus occupying that gap between Geneva Conventions III and IV.
Part IV of this series will explore the second section of the Interpretive Guidance—the concept of “civilian” in non-international armed conflict.
Click here to download the full text of the IRCR commentary