The civilian population is made up of individual civilians, in other words, individuals who do not belong to any of the various categories of combatants. Under international humanitarian law, civilians in general are granted protection from the dangers of military operations, and certain categories of civilians are entitled to reinforced protection.
International humanitarian law is based on the principle of the distinction between civilians (and civilian objects) and combatants (and military objectives). The civilian is defined in opposition to the combatant. Literally, a “civilian person” is any individual who is not a member of armed forces. In international armed conflicts, the notion of “member of the armed forces” initially contained in the Third Geneva Convention of 1949 was expanded in 1977 by Additional Protocol I to grant equivalent protection to all those engaged in combat. Therefore, a civilian is any individual who is not a member of one of the following groups:
- the regular armed forces, even one that professes allegiance to a government or authority not recognized by the adverse power;
- the armed forces of a party to the conflict, as well as militias or volunteer corps forming part of such armed forces;
- all organized groups and units, as long as these groups and units are under a command that is responsible for the conduct of its subordinates, even if the party to the conflict to which it responds is represented by a government or authority not recognized by an adverse party. This last category includes organized resistance movements and other small armed groups (GCIII Arts. 4.a.1–3, 4.a.6; API Arts. 43, 50).
The customary international humanitarian law applicable to international conflicts now recognizes that “the armed forces of a party to the conflict are made up of all the organized armed forces, groups and units that are under the authority of a commander responsible for the conduct of his subordinates” (Rule 4).
In non-international armed conflicts, official governmental armed forces are opposed to dissident groups in the national armed forces or other non-state armed groups. The status of combatant is not recognized by the law of non-international armed conflicts to members of these non-state armed groups. Indeed, this would challenge the monopoly on the use of force entrusted to the State by both national and international law. The members of such armed groups, therefore, have a hybrid status. They are considered by national law as civilian criminals because of their use of force. International humanitarian law, however, is silent on the issue of their status. At the moment, it treats them by default as civilians taking part in hostilities.
International humanitarian law has taken note of the difficulty of distinguishing combatants from the civilian population both in terms of the law and in practice, not only in non-international armed conflicts but also in certain types of international armed conflicts.
In international armed conflicts, civilians may take part in popular uprisings or resistance movements, particularly in occupied territories. In internal armed conflicts, guerrilla movements and non-state armed groups may maintain close links with the civilian population, particularly in the parts of the national territory controlled by them.
The two Additional Protocols of 1977 took account of this change in methods of warfare to provide better protection for combatants and civilians in both types of armed conflict.
The two Protocols expanded the definition of combatant by opening it up to members of national liberation movements.
The Additional Protocols provided for the specific case of civilians who take a direct part in hostilities in both types of armed conflict (API Arts. 45.1, 51.3; APII Art. 13.3). They confirm that such people retain their civilian status and do not lose the protection that international humanitarian law provides for civilians, except during the period of direct participation in hostilities.
They also increased the guarantees applicable to people who do not or no longer participate in hostilities contained in Common Article 3 to the four Geneva Conventions (API Art. 75, APII Art. 4). The change is directly aligned with the objective of the Additional Protocols to strengthen the “protection of victims of armed conflict” alongside and complementary to the traditional principle of distinguishing between civilians and combatants.
In so doing, IHL reaffirms that armed conflict consists of two categories only, each of which is exclusive of the other, namely civilians and combatants. Against this background, the use by some States of a third category composed of “unlawful combatants” does not fill the supposed legal void in the law of armed conflict but, on the contrary, contributes to creating it. IHL also excludes any challenge to the protection of civilians based on accusations of support for non-state armed groups or indirect participation in hostilities.
The doctrine of the ICRC and international case law are beginning to provide clarifications on the interpretation of these notions (infra).
The “civilian population” includes all civilians. The presence, within the civilian population, of isolated individuals who do not come under the definition of civilians shall not deprive the population as a whole of its civilian character or of the protection to which it is entitled (API Art. 50).
At times, civilians may take part in hostilities without formally belonging to any regular armed force. This may happen, most notably, in the context of spontaneous uprisings in occupied territories. It may also occur in the context of internal armed conflicts in which the distinction between civilians and combatants becomes more difficult. Civilians who take part directly in hostilities keep their status as civilians despite the fact that they directly participate in hostilities. Nonetheless, they temporarily lose the protection provided for civilians for the duration of their direct participation (API Art. 51.3, APII Art. 13.3).
In case of doubt concerning the status of an individual, he or she must be considered a civilian (API Art. 50).
In case of capture, they benefit from the special guarantees applicable to people who are detained or tried for actions related to the conflict, provided for situations of international armed conflict (API Art.), non-international armed conflict (APII Arts. 5, 6), and occupation.
Rule 5 of the ICRC Study on customary international humanitarian law defines civilians as “persons who are not members of the armed forces. The civilian population comprises all persons who are civilians.” Rule 6 recalls that “civilians are protected against attack, unless and for such time as they take a direct part in hostilities.” Those two rules are applicable in international and non-international armed conflicts ▸ Combatants
Protection of the Civilian Population
International humanitarian law only recently accorded specific protection to civilians. Before 1949, the main international conventions only regulated the conduct of hostilities and the fate of wounded, sick, or shipwrecked combatants or prisoners of war. The protection granted to civilians was only an indirect result of the general obligation to attack only military objectives and the specific obligation of combatants to wear a military uniform and to conduct military operations openly.
Since 1949, the Fourth Geneva Convention specifically protects the civilian population. It is aimed particularly at protecting civilians from acts carried out by the adverse party to the conflict. In this respect, humanitarian law establishes a general system of protection for civilians, and it reinforces this protection in certain specific situations—such as in occupied territories or in cases of internment or evacuation—or for certain specific categories of persons, considered more vulnerable—such as children, sick and wounded persons, or detainees (all of GCIV, API Arts. 48–56, APII Arts. 13–18).
In 1977, Additional Protocol I to the Geneva Conventions reinforced the protection foreseen for the overall civilian population in the context of international armed conflicts. Additional Protocol II to the Geneva Conventions extended this protection to civilians in non-international armed conflicts, in which they are particularly exposed to danger because of the increased difficulty of distinguishing between combatants and civilians in such conflicts and because they oppose individuals to their own govenment and army.
Protection of Civilians in International Armed Conflicts
General Protection of the Population against Attacks
The respect for and protection of the civilian population and civilian objects rests on the obligation of the parties to the conflict to distinguish between the civilian population and combatants, on one hand, and between civilian objects and military objectives, on the other (API Art. 48). This obligation is one of the foundations of humanitarian law.
All civilians, without any adverse distinction and in all situations, must be protected from the effects of military operations (GCIV Art. 13). Hence, they may not be the target of fighting or attacks, and they have the right to receive the necessary assistance.
This general system of protection is defined in Article 51 of Additional Protocol I. Articles 52 to 56 protect civilian objects, including those indispensable to the survival of the civilian population (API Art. 54). These provisions are reinforced by precise rules and definitions relating to the concept of attacks (API Arts. 49–51) and by the specific precautions that must be taken during attacks (API Art. 57): ▸ Attacks
- The civilian population, as such, must not be the object of attacks. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited (API Art. 51.2).
- Attacks that may hit military objectives and civilians or civilian objects indiscriminately are prohibited. “Indiscriminate attacks” are defined as those not directed at a specific military objective, those that employ a method or means of combat that cannot be directed at a specific military objective, or those that employ a method or means of combat the effects of which cannot be limited (API Art. 51.4).
- Attacks in the form of reprisals may not be aimed at the civilian population (API Art. 51.6).
- Civilians must not be used to shield military objectives or operations or to render them immune from attacks (API Art. 51.7).
- Such protection also covers civilian objects, which also must not be the object of acts of violence, direct or indiscriminate attacks, or reprisals (API Art. 52). This protection also specifically concerns objects indispensable to the survival of the population (which may not be attacked, destroyed, removed, or made the object of reprisals; API Art. 54), cultural objects and places of worship (Art. 53), the natural environment (Art. 55), and works and installations containing dangerous forces (Art. 56). ▸ Protected objects and property
The Right to Receive Assistance
The system of protection regulates the humanitarian assistance to which civilians are entitled if they do not have sufficient food, medical supplies, clothing, bedding, means of shelter, and other supplies essential to their survival. The relief actions foreseen in Protocol I address the specific case of civilians in occupied territory, but they also apply to all other cases in which the civilian population is affected by a situation of armed conflict (API Arts. 69–70). ▸ Relief
Additional Protection for Specific Categories of Protected Persons
Humanitarian law specifies that civilians in the power of a party to the conflict—in particular, a party of which they are not a national—must be granted reinforced protection, as established by the Fourth Geneva Convention and Additional Protocol I. These categories of protected persons are:
- civilian populations in occupied territories (GCIV Arts. 47–77, API Arts. 68–71);
- civilian detainees in occupied territories (GCIV Arts. 64–77);
- civilians in the power of a party to the conflict (API Arts. 72–75);
- civilian internees (GCIV Arts. 79–135);
- foreigners, refugees, and stateless persons (GCIV Arts. 35–46);
- women and children (API Arts. 76–78);
- wounded and sick persons, who must be cared for without adverse discrimination or delay; medical personnel, installations, and means of transportation, which must be respected and must be able to carry out their work despite any hostilities (GCIV Arts. 16–26, Part II; API Arts. 10–31; APII Arts. 7–11);
- pregnant women, newborn infants, and infirm persons, who are included in the humanitarian law definition of “wounded and sick,” in order to better ensure their protection (API Art. 8);
- relief and humanitarian personnel, who are always protected as civilians (API Art. 71). ▸ Protected persons
Fundamental Guarantees for All Individuals, Regardless of Their Status
All individuals must be treated in conformity with the fundamental guarantees set forth by humanitarian law (API Art. 75). ▸ Children ▸ Detention ▸ Fundamental guarantees ▸ Internment ▸ Medical duties ▸ Protection ▸ Relief ▸ Women ▸ Wounded and sick persons
Protection of Civilians in Noninternational Armed Conflicts
The distinction between combatants and civilians tends to be less straightforward during internal armed conflicts; therefore, Additional Protocol II does not establish a clear definition of combatants on one hand and civilians on the other. Instead, it only distinguishes between those who are fighting and those who are not, or no longer, fighting.
Additional Protocol II hence assumes that the entire population is civilian and therefore must be granted the protection established by humanitarian law, “unless and for such time as they take a direct part in hostilities” (APII Art. 13.3).
In non-international armed conflicts, humanitarian law establishes that individuals may belong to the category of civilians yet participate directly in hostilities at certain times. Additional Protocol II establishes that such individuals shall benefit from the protection granted to civilians. This protection may be suspended only for the duration of their direct participation in hostilities.
General Protection of the Civilian Population
Articles 13 to 18 of Additional Protocol II define the protection and means of protection that must be adopted for the benefit of civilians.
- “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” To this effect, they must never be the object of attacks or of any acts or threats of violence the primary purpose of which is to spread terror (APII Art. 13).
- Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, or remove objects indispensable to the survival of the civilian population (APII Art. 14).
- Works or installations containing dangerous forces—namely, dams, dikes, nuclear plants, and electrical generating stations—must never be the target of an attack if such an attack may cause the release of dangerous forces and consequently cause severe losses among the civilian population (APII Art. 15).
- Cultural objects and places of worship that constitute the cultural or spiritual heritage of peoples must never be attacked or used in support of the military effort (APII Art. 16).
- “The displacement of the civilian population shall not be ordered for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand” (APII Art. 17). Thus, it must respect strict conditions. ▸ Population displacement
The Right to Receive Assistance
Additional Protection for Specific Categories of Protected Persons
Special provisions reinforce the protection, in non-international armed conflicts, for:
Fundamental Guarantees for All Individuals, Regardless of Their Status
All individuals must be treated in conformity with the fundamental guarantees set forth by humanitarian law (APII Art. 4). ▸ Fundamental guarantees
Direct Participation of Civilians in Hostilities
International Humanitarian Law (IHL) is based on the principle of distinction between the armed forces, who conduct the hostilities on behalf of the parties to an armed conflict, and civilians, who are presumed not to directly participate in hostilities and must be protected against the dangers arising from military operations. Nonetheless, aspects of contemporary warfare have led to an increased intermingling of civilians with armed forces as well as warfare in urban settings. Difficulties in effectively distinguishing between legitimate military objectives and civilian objects jeopardize the capacity of IHL to protect victims of war and limit armed violence in times of conflict.
The status of civilians who participate directly in hostilities is provided for in the two Additional Protocols of 1977 relating to international and non-international armed conflicts (API Arts. 45.1, 51.3; APII Art. 13.3).
This status provides that such civilians lose their protection as civilians during the period of their direct participation in hostilities. International humanitarian law seeks to control the consequences of this loss of protection of civilian status because it does not result, as such, in the acquisition of protection afforded to those with combatant status. This is therefore a dangerous, hybrid status, which the two Protocols attempt to limit in time and according to the situation of the persons concerned. The interpretation of this notion of duration has been restricted by the doctrine of the ICRC and by case law (infra).
- Loss of the protection afforded by civilian status is defined primarily as the right of the enemy to target a civilian directly participating in hostilities. Such casualties will not be considered as illegal per se, neither will they amount to collateral damages implying assessment of the proportionality of such loss to the military advantages expected from the attack and of the precaution taken in the attack.
- Loss of the protection afforded by civilian status also applies to their treatment when they are unable to participate in combat as a result of injury, illness, or capture by enemy armed forces. They will benefit from the general protection due to wounded and sick, but they will lose their civilian status without being granted the protection due to combatants in the case of arrest and detention. A specific category of persons deprived of their liberty or prosecuted for reason related to the armed conflict has been created to fill this void. ▸ Detention
- The loss of protection in terms of time, however, is strictly limited to the period of direct participation.
In non-international armed conflict, two articles in Additional Protocol II provide specific guarantees on the treatment of people detained in relation to the conflict. These include the right to impartial medical care (Art. 5). Additional Protocol II also provides judicial guarantees for people who are convicted for reasons associated with their active participation in the conflict (Art. 6). These articles compensate for the absence of combatant status for non-state armed groups opposed to the State.
In international armed conflict, Additional Protocol I includes an article relating to the protection of people who have taken part in the hostilities (API Art. 45). This article extends the possibility of benefiting from the treatment of a prisoner of war to people who are not categorized as members of the armed forces. It confirms that a person who takes part in hostilities and falls into the power of an adverse party is presumed to be a prisoner of war (API Art. 45.1). It provides that, if there is any doubt over the person’s entitlement to the status of prisoner of war, they shall continue to have such status and, consequently, be protected by the Third Convention and Additional Protocol I, until their status has been decided by a competent court. It also provides judicial guarantees should the person be convicted as a result of his or her participation in hostilities (API Art. 45.2). Finally, it sets minimum standards in relation to treatment and detention should entitlement to prisoner-of-war status ultimately be refused (API Art. 45.3).
These provisions of international humanitarian law, relating to the direct participation in hostilities by civilians, require a clear interpretation of the duration of direct participation during which the civilian has lost his or her protection as a civilian and part of its status, but also of the direct participation as opposed to indirect participation in or support for hostilities.
In so doing, international humanitarian law excludes any challenge to the protection of civilians based on any indirect form of support for or participation in hostilities. International jurisprudence has begun to clarify the interpretation of these notions.
The International Committee of the Red Cross (ICRC) felt necessary to better frame the grey area of civilians “directly participating in hostilities,” which lies between the clear categories of civilians, combatants and the armed forces.
Under IHL, the notion of “direct participation in hostilities” describes individual conduct that, if carried out by civilians, suspends their protection against the dangers arising from military operations. Most notably, for the duration of their direct participation in hostilities, civilians may be directly attacked as if they were combatants. Derived from Common Article 3 to the Geneva Conventions, the notion of “direct” or “active” participation in hostilities is found in multiple provisions of IHL. Despite the serious legal consequences involved, however, neither the Geneva Conventions nor their Additional Protocols provide a definition of what conduct amounts to direct participation in hostilities.
In order to solve this issue, the ICRC initiated in 2003 a process of research and expert reflection on the notion of “direct participation in hostilities” under IHL. The aim was to clarify three questions: who is considered a civilian for the purpose of conducting hostilities and, therefore, must be protected against direct attack “unless and for such time as they directly participate in hostilities”? What conduct amounts to direct participation in hostilities and, therefore, suspends a civilian’s protection against direct attack? And, finally, what modalities govern the loss of civilian protection against direct attack?
The ICRC published its Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law in 2010. It provides the following ten recommendations as a legal reading of the notion of “direct participation in hostilities”:
- On the concept of the civilian in international armed conflict: All persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are civilians and, therefore, entitled to protection against direct attack “unless and for such time as they take a direct part in hostilities.”
- The concept of the civilian in non-international armed conflict: All persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack “unless and for such time as they take a direct part in hostilities.”
- Private contractors and civilian employees: Private contractors and employees of a party to an armed conflict who are civilians are entitled to protection against direct attack “unless and for such time as they take a direct part in hostilities.”
- Direct participation in hostilities as a specific act: The notion of direct participation in hostilities refers to specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict.
- Constitutive elements of direct participation in hostilities: In order to qualify as direct participation in hostilities, a specific act must meet the three following cumulative criteria requiring a threshold of harm, and a direct, causal, and intentional link between the act and its military effect:
- The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or , alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack ( threshold of harm ), and
- There must be a direct causal link between the act and the harm likely to result either from that act or from a coordinated military operation of which that act constitutes an integral part ( direct causation ), and
- The 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 of another ( belligerent nexus ).
- Beginning and end of direct participation in hostilities: Measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act.
- Temporal scope of the loss of protection: Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities, whereas members of organized armed groups belonging to a non-state party to an armed conflict cease to be civilians, and lose protection against direct attack, for as long as they assume their continuous combat function.
- Precautions and presumptions in situations of doubt: All feasible precautions must be taken in determining whether a person is a civilian and, if so, whether that civilian is directly participating in hostilities. In case of doubt, the person must be presumed to be protected against direct attack.
- Restraints on the use of force in direct attack: In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind and degree of force that is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.
- Consequences of regaining civilian protection: When civilians cease to directly participate in hostilities, or when members of organized armed groups belonging to a non-state party to an armed conflict cease to assume their continuous combat function, they regain full civilian protection against direct attack but are not exempted from prosecution for violations of domestic and international law they may have committed.
These guidelines have helped to identify the most problematic points of interpretation. State practices and jurisprudence have not yet reached a sufficient consensus for customary rules to have been established in this area, which remains at an embryonic stage in legal terms. The decisions of the Israel Supreme Court on targeted killings shed light on the issues surrounding this doctrine and the impact in terms of loss of protection they represent for civilians (infra).
The key points associated with this change in the doctrine cover a number of critical elements.
The ICRC guidelines draw a distinction between civilians who take part in hostilities for a limited duration and members of organized armed groups of a party to the conflict who do so on a permanent basis. However, it remains inconclusive on the legal consequences of this distinction, reflecting state reluctance to recognize the existence of non-state armed groups or afford them legal status in situations of armed conflict.
It is nonetheless essential that this category be strengthened to relieve the pressure it puts on the notion of civilian participation in hostilities. Indeed, the loss of protection for civilians for the limited period of their direct participation in hostilities loses its effectiveness if it serves to support a loss of protection covering the whole period of a conflict, in the case of people whose participation is not only occasional. Furthermore, it makes it impossible to take into account and limit the notion of direct participation if it is used for all the command, planning, and organizational functions of non-state armed groups. It cannot be used as an alternative to the refusal of government authorities to recognize the status of organized non-state groups with which they are in conflict.
- International Criminal Tribunals
- Definition of Civilians
In the Martić Case (IT-95-11-A, 8 October 2008), the ICTY Appeals Chamber held that persons hors de combat cannot be granted civilian status (paras. 292–96, 302). The Chamber adopted the definition of civilians entailed in Article 50 of Additional Protocol I of 1977; a civilian is any person who is not member of the armed forces, militias, or volunteer corps forming part of such armed forces, and who is not a member of organized resistant groups, provided that such groups are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war. As a result, if the victim is a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes does not accord him civilian status. Nonetheless, the Chamber ruled that this is not because a person hors de combat cannot be granted civilian status or that he cannot be the victim of a crime against humanity. ▸ War crimes/Crimes against humanity
- Direct Participation of Civilians in Hostilities
In the Milošević Case (Dragomir) (IT-98-29/1-A, 12 November 2009, para. 57), the ICTY Appeals Chamber recalled that the protection from attacks afforded to individual civilians is suspended “when and for such time as they directly participate in hostilities.” The Tribunal held that whether a victim was actively participating in the hostilities at the time of the offence depends on the nexus between the victim’s activities at the time of the offence and any acts of war that by their nature or purpose are intended to cause actual harm to the personnel or equipment of the adverse party ( Strugar Case , IT-0-42-A, 17 July 2008, para. 178) ▸ War crimes/Crimes against humanity
- Civilian Population vs. Civilian Zones
In the Milošević Case (Dragomir) (supra), the ICTY Appeals Chamber recalled that the principle of distinction requires parties to distinguish at all times “between the civilian population and combatants, between civilian and military objectives, and accordingly direct attacks only against military objectives” (para. 53). The Chamber further found that distinctions between civilians and combatants and between civilian objects (or “zones”) and military objectives shall be made on a case-by-case basis (para. 54). ▸ Combatants
- Israel Supreme Court
In Supreme Court Sitting as the High Court of Justice, the Public Committee against Torture in Israel (HCJ 759/02, 11 December 2005), the Israel Supreme Court confirmed that civilians who take part in hostilities are legitimate targets (para. 26). It stated that terrorists who take part in hostilities do not cease to be civilians but are deprived of civilian status as a result of their actions; nor are they entitled to the rights of combatants or to the status of prisoners of war (para. 31). It held that terrorists are not entitled to the status of combatants because they do not satisfy the criteria laid down in international humanitarian law, notably regarding wearing a distinctive emblem and compliance with IHL rules (para. 24).
Above all, however, the Court held that the concepts of combatant and civilian are mutually exclusive. There is no category of unlawful combatant. Such individuals, who are not entitled to the status of combatant, must therefore be treated as civilians, but civilians who lose part of their protection as a result of their direct participation in hostilities (para. 26).
- “That definition [of combatant] is ‘negative’ in nature. It defines the concept of ‘civilian’ as the opposite of ‘combatant.’ It thus views unlawful combatants—who, as we have seen, are not ‘combatants’—as civilians. Does that mean that the unlawful combatants are entitled to the same protection to which civilians who are not unlawful combatants are entitled? The answer is, no. . . . An unlawful combatant is not a combatant, rather a ‘civilian.’ However, he is a civilian who is not protected from attack as long as he is taking a direct part in the hostilities. Indeed, a person’s status as unlawful combatant is not merely an issue of the internal State penal law. It is an issue for international law dealing with armed conflicts. . . . It is manifest in the fact that civilians who are unlawful combatants are legitimate targets for attack, and thus surely do not enjoy the rights of civilians who are not unlawful combatants, provided that they are taking a direct part in the hostilities at such time. Nor, as we have seen, do they enjoy the rights granted to combatants. Thus, for example, the law of prisoners of war does not apply to them.” (para. 26)
- “That is the law regarding unlawful combatants. As long as he preserves his status as a civilian—that is, as long as he does not become part of the army—but takes part in combat, he ceases to enjoy the protection granted to the civilian, and is subject to the risks of attack just like a combatant, without enjoying the rights of a combatant as a prisoner of war. Indeed, terrorists who take part in hostilities are not entitled to the protection granted to civilians. True, terrorists participating in hostilities do not cease to be civilians, but by their acts they deny themselves the aspect of their civilian status which grants them protection from military attack. Nor do they enjoy the rights of combatants, e.g. the status of prisoners of war.” (para. 31)
The Court has confirmed, however, that the right to attack a civilian who is directly participating in hostilities is more restrictive than the right that applies to attacking combatants. The Court thus identifies five differences, which are deemed to take account of the consequences of this difference in status (para. 40):
- “A well based information is needed before categorizing a civilian as falling into one of the discussed categories. Innocent civilians are not to be harmed. . . . Information which has been most thoroughly verified is needed regarding the identity and activity of the civilian who is allegedly taking part in the hostilities. . . . The burden of proof on the attacking army is heavy. . . . In case of doubt, careful verification is needed before an attack is made.”
- “A civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed.”
- “After an attack on a civilian suspected of taking an active part, at such time, in hostilities, a thorough investigation regarding the precision of the identification of the target and the circumstances of the attack upon him is to be performed (retroactively). That investigation must be independent.”
- “If the harm is not only to a civilian directly participating in the hostilities, rather to innocent civilians nearby, the harm to them is collateral damage. That damage must withstand the proportionality test.”
Thus, if harm has been caused to innocent civilians alongside harm caused to a civilian who was directly participating in hostilities, it will be classed as collateral damage. Such damage must comply with obligations of proportionality. Proportionality must be assessed by a judicial body (paras. 55–59).
The Court also clarifies the boundaries of the notion of direct participation.
- “The ‘direct’ character of the part taken should not be narrowed merely to the person committing the physical act of attack. Those who have sent him, as well, take ‘a direct part.’ The same goes for the person who decided upon the act and the person who planned it. It is not to be said about them that they are taking an indirect part in the hostilities. Their contribution is direct (and active).” (para. 37)
- “The following cases should also be included in the definition of taking a ‘direct part’ in hostilities: a person who collect intelligence on the army whether on issues regarding the hostilities or beyond those issues; a person who transport unlawful combatants to or from the place where the hostilities are taking place; a person who operates weapons which unlawful combatants use, or supervises their operations, or provides service to them from the battlefield as it may. All those persons are performing the function of combatants. The function determines the directness of the part taken in the hostilities.” (para. 35)
With regard to civilians used as “human shields” to protect terrorists taking part in hostilities, the Court clarifies the notion of “human shield” by stating that if said civilians act freely and of their own free will as a sign of support for terrorist organizations, they should be treated as persons directly participating in the hostilities (para. 36).
Conversely, the Court states that a person who sells food or medicines to an illegal combatant is not participating directly but indirectly in the hostilities. The same applies to a person who helps an unlawful combatant with general strategic analysis, and who provides logistical resources and general support, including financial aid. This also applies to a person who distributes propaganda supporting those said unlawful combatants. If these people are wounded, there is no certainty that the State will be held responsible provided the situation can be included in the category of accidental collateral damage (para. 35).
The Court confirms that there is no customary definition of the notion of direct participation, nor any legal consensus on the notion of a period of direct participation, which limits the loss of protection in time.
- “On the one hand, a civilian taking a direct part in hostilities one single time, or sporadically, who later detaches himself from that activity, is a civilian who, starting from the time he detached himself from that activity, is entitled to protection from attack. He is not to be attacked for the hostilities which he committed in the past. On the other hand, a civilian who has joined a terrorist organisation which has become his ‘home,’ and in the framework of his role in that organisation he commits a chain of hostilities, with short periods of rest between them, loses his immunity from attack ‘for such time’ as he is committing the chain of acts. Indeed, regarding such civilian, the rest between hostilities is nothing other than the preparation for the next hostility” (para. 39)
The Court concludes that in the absence of a sufficiently precise definition, each situation must be examined on a case-by-case basis.
- “In the wide area between those two possibilities, one finds the ‘gray’ cases, about which customary international law has not yet crystallised. There is thus no escaping examination of each and every case” (para. 40).
- “The basic approach is thus as follows: a civilian—that is, a person who does not fall into the category of combatant—must refrain from directly participating in hostilities. . . . A civilian who violates that law and commits acts of combat does not lose his status as a civilian, but as long as he is taking a direct part in hostilities he does not enjoy—during that time—the protection granted to a civilian. He is subject to the risks of attack like those to which a combatant is subject, without enjoying the rights of a combatant, e.g. those granted to a prisoner of war. True, his status is that of a civilian, and he does not lose that status while he is directly participating in hostilities. However, he is a civilian performing the function of a combatant. As long as he performs that function, he is subject to the risks which that function entails and ceases to enjoy the protection granted to a civilian from attack.” (para. 31)
▸ Attacks ▸ Combatants ▸ Fundamental guarantees ▸ Human shields ▸ International humanitarian law ▸ Methods (and means) of warfare ▸ Military objectives ▸ Non-combatants ▸ Protected objects and property ▸ Protected persons ▸ Protection ▸ Reprisals ▸ Situations and persons not expressly covered by humanitarian law
For Additional Information: Camins, Emily. “The Past as Prologue: The Development of ‘Direct Participation’ Exception to Civilian Immunity.” International Review of the Red Cross 872 (December 2008): 853–81.
Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict . Cambridge: Cambridge University Press, 2004, esp. chaps. 5 and 6.
“Direct Participation in Hostilities.” Special issue, International Review of the Red Cross 872 (December 2008): 819–1055.
Gasser, Hans Peter. “New Rules Protecting Civilians in Armed Conflict: Was It Worth the Effort?” Humanitäres Völkerrecht 15, no. 4 (2002): 209–12.
Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Law . Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005, esp. part 5.
Jaworski, Eric. “Military Necessity and Civilian Immunity: Where Is the Balance?” In International Crime and Punishment, Selected Issues , Vol. 2, edited by Sienho Yee, 87–127. Lanham, MD: University Press of America, 2004.
Melzer, Nils. “ICRC Interpretative Guidance on the Notion of ‘Direct Participation in Hostilities’ under International Humanitarian Law.” International Review of the Red Cross 872 (December 2008): 991–1047. Available at http://www.icrc.org/eng/assets/files/other/irrc-872-reports-documents.pdf .
Plattner, Denise. “Assistance to the Civilian Population: The Development and Present State of International Humanitarian Law.” International Review of the Red Cross 288 (May–June 1992): 249–63.
Sandvik-Nylund, Monika. Caught in Conflicts: Civilian Victims, Humanitarian Assistance and International Law . Abo Akademi University, Turku: Institute for Human Rights, 2003.
Schmitt, Michael N. “Direct Participation in Hostilities and 21st Century Armed Conflict.” In Crisis Management and Humanitarian Protection: Festschrift fur Dieter Fleck , edited by H. Fischer et al., 505–29. Berlin: BWV, 2004.
Wenger, Andreas, and Simon J. A. Mason. “The Civilianization of Armed Conflict: Trends and Implications.” International Review of the Red Cross 872 (December 2008): 835–52.