2015-9. ‘IHL no longer adequately protects civilians against the dangers arising from military operations, particularly given the marked shift of the conduct of hostilities into civilian population centres and the unprecedented intermingling of civilians and armed actors’.
Modern warfare is characterized with unprecedented intermingling between civilians and combatants. For example, military base in many countries may offer civilian facilities, such as restaurant, civilian residences etc; Ministry of Defence and some other military objectives are located in densely populated area; low accuracy explosives are being used in city warfare; civilians may involve in military acts as human shields either voluntarily or involuntarily, etc. Against this background, it may be argued that current IHL could not address these complicated scenarios. This essay, however, argues that current rules and principles of IHL could cover these situations, however, devil lies in detail. How states and case law actually interpret and apply relevant rules of IHL differ largely and it is therefore necessary to further clarifying rules governing targeting in international armed conflicts. This essay will argue by focusing on some contentious issues in practice in relation to application of the principle of distinction and principle of proportionality.
A. Principle of distinction
It is generally accepted that attacks shall only be directed against combatants and military objectives while civilians and civilian objects are immune from direct attacks. It has been argued in my previous post that uncertainties in relation to the scope of ‘military objective’ defined in Art. 52(2) of AP in practice may subject to disputes (see Scope of Military Objectives and Modern Warfare and some case analysis see Targeting and Dual-Use Facilities: the case for a moot question) So this essay will focus on the distinction between civilians and combatants by addressing some difficulties in the notion of ‘direct participating in hostilities’ (DPIH).
(1) Disputes on the notion of ‘DPIH’
This essay argues that the notion of DPIH is not clearly defined, which might impair protection of civilians intermingled with combatants (such as the case for human shields). Art. 51(3) of AP I prescribes that civilians shall not be subject to direct attack unless for such time as they take a direct part in hostilities. The standards of DPIH varies between states and scholars, and a general agreement has not been achieved. ICRC Interpretive Guidance, for example, provides for a three-element based criteria: (1) threshold of harm (2) direct causal link and (3) belligerent nexus. It considers that not only harm to military operations and capacities of enemy forces, but also damage, injury to civilian objects or civilians could constitute DPIH. It also adopts a ‘direct’ causality, for example, general support of war efforts by providing strategic geo-political intelligence, military training, transfer of weapons and munitions do not constitute ‘direct’ causal link, while those designed to support a specific operation could suffice. However, this criteria raised by ICRC based on discussions between IHL experts have not achieved general agreement by states and even by some scholars (eg. M. Schmitt). For example, ‘Targeted killing’ case is Israel although generally accepts the three elements raised by the ICRC, it add additional emphasis on the timing issue here. The Israeli court claimed to apply customary international law and interpret the term ‘for such time as they take a direct part in hostilities’ as to cover the situations where civilians join terrorist organizations and perform a function of carrying out a chain of hostilities, in such a case, the civilian is targetable even during intervals of acts of hostilities. While under the ICRC interpretive guidance approach, the ‘revolving door’ phenomenon (eg. farmer by day and fighter by night) does not necessarily constitute DPIH at the time the civilians do not engage in acts of hostilities.
When interpreting the timing element (‘for such time as’), the ‘Targeted killing’ case also introduced an interesting requirement by interpreting the rule of IHL in light of human right obligation of principle of proportionality. It requires that states should not kill the civilians taking part in hostilities when they have lesser lethal choices, eg. to capture them. This point gives rise to the dispute on whether IHL obligates states to capture rather than to kill. It is argued by some that the principle of necessity and Art. 35 of AP I provide basis for such an obligation (R. Goodman, N. Melzer) while others would argue that such a duty does not exist in lex lata of IHL and the similar result should be achieved through a broad approach to ‘hor de combat’ (M. Schmitt).
As a result, the notion of DPIH is far from being clarified and a general agreement has not been accepted, which might be detrimental to protection of innocent civilians. This is the case in relation not ‘human shields’.
(2) The issue of human shields.
Human shield is a good case demonstrating how civilians intermingled with combatants are not well protected under ill-defined rules of IHL. In practice, for example, states justify their attacks on civilians by arguing that the fact they act as human shield constitute participating in hostilities (eg. Israel in relation to civilians supporting Hezbollah). ICRC Interpretive Guidance suggests the decisive factor in relation to whether they could be directly attacked is whether the three elements of DPIH has been satisfied. It suggests to distinguish between involuntary and voluntary human shields. For the former, as there exist no belligerent nexus ( it is not specifically directed to support a party to hostilities), thus DPIH test has not been satisfied. While for voluntary human shields, it might introduce a lot of difficulties. The approach taken by ICRC Interpretive Guidance is to distinguish between different modes of fighting. For voluntary human shields in ground warfare, they constitute DPIH. While for warfare where more heavy armament are used (eg. air bombardment) the presence of civilians could not virtually impede the advancement of enemy or impair the military operations or capabilities of the enemy. The fact that they may cause a legal obstacle on the enemy does not constitute ‘direct causal link’. Thus in the latter case, they do not constitute DPIH. However, this is not the end of story, ICRC’s approach is also subject to controversy. It is criticism that the distinction based on mode of fighting is artificial, whatever mode of fighting civilian participate, they could constitute DPIH. (Dinstein). The controversies in this regard again demonstrate the uncertainties in relation to the notion of DPIH and the fact that civilians are not well protected under the ill-defined rules of IHL. It is therefore suggested in case of voluntary human shields, the rule of doubt should be introduced. As it is almost impossible in practice to distinguish between voluntary and involuntary ones unless the civilians expressly purport to act as human shields, in such cases, they should be presumed to be involuntary human shields, especially when children are used as human shields. (M. Schmitt) But whether this is an extant rule of IHL in relation to treatment of human shields is still not clear.
For further discussion, see the forthcoming post on principle of proportionality: On the Principle of Proportionality in Contemporary Warfare
See more discussion on the controversies of DPIH in my previous post: Controversies on the Notion of ‘Direct Participation in Hostilities’: an Introduction
