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DIRECT

PARTICIPATIONIN HOSTILITIES

The CIVILIAN'S

LOSS OF

PROTECTION

And

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Contents

1. Legal Setting and Problem

2. The ICRC InterpretiveGuidance Document

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Lawful Practice of Warfare:

NECESSITY

DISTINCTION

PRECAUTION

BASIC RULECivilians are PROTECTED against directattack unless and for such time as theydirectly participate in hostilities.

AP I, Art. 51(3)

AP II,Art. 13 (3)GC I-IV Common Art. 3 (1)Rule 6 CLS

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Basic Targeting Rules

Civilian objects"all objects which are not military objectives."

AP I, Art. 52 (1)

Military objects

" objects which by their nature, location, purpose or usemake an effective contribution to military action and whosetotal or partial destruction, capture or neutralization, in thecircumstances ruling at the time, offers a definite militaryadvantage."

AP I, Art. 52 (2)

D

IS

T

I

NC

T

I

O

N

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The Parties to the conflict shall at all times distinguish between

the civilian population and combatants and between civilian

objects and military objectives and accordingly shall direct their

operations only against military objectives.

AP I, Art 48

In case of doubt whether a person is a civilian, that person shall

be considered to be a civilian.AP I, Art. 50 (1)

D

I

S

T

I

N

CT

I

O

N

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Each party to the

conflict must do

everything feasible toverify that targets are

military objectives

P

R

EC

A

U

T

IO

N

S

All feasibleprecautions must be

taken to avoid, and in

any event to

minimise, incidentalloss of civilian life,

injury to civilians and

damage to civilian

objects.

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Parties must do

everythingfeasible to cancel

or suspend an

attack if it

becomesapparent that the

target is not a

military objective

P

R

E

C

A

U

T

IO

N

S

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THE PROBLEMS:

Who may be directly attacked?

When does a civilian lose protection

against direct attack?

Which actions lead to this?

How long does it last?

What are the consequences?

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ICRC Clarification Process

Interpretive Guidance Document

(2003 2008)

Aims to enhance protection of civilians

from arbitrary targeting

Not a law-making exercise:

Gives ICRC Opinion

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Who may be directly attacked?

State Armed Forces

Organised Armed Groups(Continuous Combat Function)

Civilians Directly Participating in

Hostilities

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Organised Armed Group?

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The "armed military wing" of non-

State party to the conflict

Not the same as "party to the conflict" itself:

Not the political wing

Not the administrative branch

Not the humanitarian branch

Not based on abstract or arbitrary affiliation:

Same ethnic group

Family ties to fighters

Geographic proximity

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Organised Armed Group?

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WHO in an Organised Armed Group

may be targeted directly ?

ONLY those members who have assumed a

"continuous combat function"

This DOES NOT equal "combatant privilege"

Problems with this?

Example: People running a training camp?

Sleeper cells?

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Who may be directly attacked?

State Armed Forces

Organised Armed Groups(Continuous Combat Function)

Civilians Directly Participating inHostilities

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Which Acts Constitute DPH

Threshold of Harm

Direct Causation

Belligerent Nexus

(cumulative)

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Threshold of Harm

A specific act must be likely "to adversely

affect the military operations or capacity

of the enemy"

or

"to inflict death, injury, or destruction onpersons or objects protected against

direct attack"

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Directly participating civilians?

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Direct Causation

There must be a direct causal link between

a specific act and the harm likely to result

from it.

Not "war effort" or "moral support".

Not "indirect" causation

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Belligerent Nexus

The hostile act must be "specifically

designed to directly cause the required

threshold of harm in support of a party to

the conflict and to the detriment ofanother".

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Directly participating civilians?

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When does a civilian lose protection?

Preparation

Deployment

Return

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How long does it last?

CIVILIANS lose protection against directattack for the duration of each specific act

amounting to direct participation inhostilities.

MEMBERS of ARMED FORCES orgroups of a party to the conflict lose civilian

protection for the duration of their

membership.

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Can Civilians regain their Protection?

CIVILIANS who have stopped directlyparticipating

MEMBERS of ARMED FORCES whohave abandoned or disengaged from the

Combat Function.

1. May no longer be attacked

2. May be arrested and prosecuted

3. Direct Participation not by itself prohibited in

IHL

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\

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Thank You