3 - direct participation in hostilities - david maizlish
TRANSCRIPT
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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