Challenges To IHL

Spotlight On Issues Of Contemporary Concern In
International Humanitarian Law And International Criminal Law

THE CHALLENGES TO INTERNATIONAL HUMANITARIAN LAW
AND THE PRINCIPLES OF DISTINCTION AND PROTECTION
FROM THE INCREASED PARTICIPATION OF CIVILIANS IN
HOSTILITIES
Avril McDonald1
1. INTRODUCTION
2. THE PRINCIPLES OF DISTINCTION AND PROTECTION AND
CONTEMPORARY CHALLENGES TO THEM
2.1
Defining civilians and civilian status
2.2
Threats to the principle of distinction
2.3.1
Contemporary trends in armed conflicts
2.3.2
The civilisation of the military
2.3.2.1 The privatization of formerly military functions
2.3.3
Terrorism and counter-terrorism
3. THE CONCEPT OF DIRECT PARTICIPATION IN HOSTILITIES
3.1 What is meant by the term hostilities?
3.2
What is meant by the term direct participation in hostilities?
3.2.1
Which types of activities constitute direct participation?
3.2.1.1 To what extent is the intention of the participant or the results achieved
relevant?
3.2.2. Which types of activities do not constitute direct participation?
3.2.3 Grey areas
3.2.4 The temporal element
3.2.5 In order to directly participate in hostilities, must there be a nexus with the
armed conflict?
3.2.6
In order to directly participate, does the civilian have to be a member of or
have a link with a party to the conflict?
4. THE CONSEQUENCES OF UNLAWFUL PARTICIPATION
5. CONCLUSIONS
1. INTRODUCTION
Most of the casualties of modern conflicts, as is well known, are
mainly civilians and not soldiers. When these casualties are
reported, the word civilian is often prefaced by the adjective
innocent, with the suggestion being that there are other civilians
who are not so innocent, and whose deaths or injuries are not as
unfortunate and haphazard as might at first appear.
This is a background working paper for a presentation by the author in April 2004
at the University of Teheran at a Round Table co-hosted by the University of
Teheran and the Harvard Universitys Humanitarian Law Research Initiative on the
Interplay Between International Humanitarian Law and International Human
Rights Law. The author thanks the organizers of the event, in particular,
Professors Nasrin Mousaffa and Djamchid Momtaz of the University of Teheran and
Mr Claude Bauderlaine and Ms Margaret Kowalsky of Harvard University.
1

As a general principle, civilians are entitled to protected status
under international humanitarian law and may not be attacked.
Moreover, the greatest of care must be exercised in conducting
military operations in order to minimize civilian casualties. However,
the laws of war recognize that some civilians are more innocent and
deserving of protection than others, and that those who take a
direct part in hostilities during an armed conflict forfeit their
protected status and may be attacked. Article 51(3) of the 1977 First
Protocol Additional to the 1949 Geneva Conventions (Additional
Protocol I) encapsulates this principle of protection, and its
conditionality: Civilians shall enjoy the protection afforded by this
section, unless and for such time as they take a direct part in
hostilities.
Notwithstanding this recognition in the law that civilians do not
always deserved protected status, international humanitarian law
applicable during armed conflicts is premised on a fundamental
assumption that war fighting is the work and privilege of soldiers
and that civilians are generally to be considered as protected
persons, at a remove from and not involved in hostilities. While this
supposition may have reflected the actuality of armed conflict prior
to the adoption of the four Geneva Conventions in 1949, it was
already becoming divorced from reality by the time of the adoption
of the Additional Protocols to the Geneva Conventions in 1977 and
today increasingly seems a quaint and archaic notion, out of step
with the reality of todays wars.
The main fruit of the 1974-1977 Diplomatic Conference leading to
the adoption of the Additional Protocols was Additional Protocol I
applicable in international armed conflicts, which were even by then
becoming increasingly uncommon. Additional Protocol II, applicable
in non-international armed conflicts, is a pale shadow of that
achievement, inadequate to regulate all or many aspects of such
conflicts, even though they were already becoming the norm
amongst armed conflicts, and responsible for the greater proportion
of civilian casualties.
While Additional Protocol I recognizes the traditional distinction
between combatants and civilians,2 Additional Protocol IIlargely for
political reasons3does not acknowledge the concept of
combatancy during non-international armed conflicts. Thus, aside
Article 48 of Additional Protocol I (Basic Rule) provides: In order to ensure
respect for and protection of the civilian population and civilian objects, 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.
3
It was considered that to recognize combatant status for rebels would be to
grant them legitimacy, a bridge too far for most states represented at the
Diplomatic Conference.
2

from members of a states armed forces, all persons taking up arms
during a non-international armed conflict are legally civilians and
not combatants. Given that the vast majority of conflicts around the
world today are non-international in character, this means that the
majority of persons engaged in fighting them (or at least those
fighting as part of armed opposition groups against states) have no
privileged combatant status under international humanitarian law
and are technically unlawful or unprivileged 4 combatants, that is,
they are civilians who are unlawfully engaged in combat and who
may be punished for that fact alone by the national authorities. 5 As
there is no legal distinction between combatants and civilians during
a non-international armed conflict, fulfilment of the fundamental
rule of protection of genuine civilians during a non-international
armed conflict depends on an understanding of what actions trigger
a loss of civilians protected status and expose them to legitimate
attack.
Even in an international armed conflict distinguishing between
combatants and genuine civilians is in reality not always easy or
clear-cut. As states armed forces come to rely on civilians to
perform an increasing number of roles formerly the preserve of
military personnel, the odds of a civilian being involved in conflict,
both directly and indirectly, have dramatically increased. Decisive
may be not the fact of wearing a uniform and carrying arms
(although in many cases, civilians do) but the nature and degree of
an individual civilians involvement in hostilities.
In relation to both non-international and international armed
conflicts, therefore, as well as other types of conflict which
international humanitarian law does not yet recognize, it is essential
for the sake of upholding the principle of protection of the so-called
innocent civilian population to identify criteria to assist in
determining when an individual civilian crosses the rubicon and
These are terms of art rather than terms with a precise and conventionally
defined legal meaning. See R.R. Baxter, So-called Unprivileged Belligerency:
Spies, Guerrilla, and Saboteurs, 28 BYIL (1951) pp. 323 at 328 where he states
that unprivileged belligerents are: A category of persons who are not entitled to
treatment either as peaceful civilians or as prisoners of war by reason of the fact
that they have engaged in hostile conduct without meeting the qualifications
established by Article 4 of the Geneva Prisoners of War Convention of 1949 . . .
According to Watkins: An unprivileged belligerent is a civilian (ie. A person not
having combatant status) who takes part in hostilities thereby committing a
belligerent act and having neither the protection from attack associated with
civilian status nor qualifying for the privilege of being a prisoner of war. Colonel
K.W. Watkin, Combatants, Unprivileged Belligerents and Conflicts in the 21 st
Century, Background Paper prepared for the Informal High-Level Expert Meeting
on the Reaffirmation and Development of International Humanitarian Law,
Cambridge, June 27-29, 2002, pp. 4-5.
5
Although Article 6(5) of Protocol II urges states at the end of the noninternational armed conflict to grant the broadest possible amnesty to persons
who have merely participated in the armed conflict (that is, excluding those who
have committed crimes related to the conflict, namely, war crimes).
4

becomes a de facto (if not a de jure) combatant, with all the
consequences that implies.
The exercise is complex and there are many uncertainties. It is
beyond the scope of this working paper to attempt any
comprehensive analysis of the problem or to propose considered
solutions; that will require a far more in depth analysis of the
relevant legal issues and study of the roles that civilians play in
contemporary conflicts.6 This paper will confine itself to attempting
to identify and briefly comment on some of the legal problems
arising out of the phenomenon of increased civilian participation in
hostilities.
Part 3 of the paper will therefore explore the following main legal
questions: What is meant by the term direct participation in
hostilities? Which types of activities constitute direct participation,
and which types of activities do not? Which are some of the gray
areas? Is there a required mental element for direct participation?
What is the temporal duration of direct participation in hostilities
(i.e., the time during which unlawfully participating civilians may be
attacked)? What, if any, link must there be between a civilian
participant and both an armed conflict and a party to the conflict?
Part 4 will then examine some of the consequences of direct
participation. What if any residual protection do civilians who take a
direct part in hostilities enjoy under international humanitarian law
and international human rights law when they lose their protected
status? What is the status of civilians who unlawfully participate in
hostilities upon capture? To what extent are civilians who directly
participate in hostilities criminally liable, including for war crimes,
under international humanitarian law? Finally, Part 5 draws a few
conclusions.
Before turning to the substantive legal questions, some preliminary
matters must be addressed by way of background. In Part 2,
therefore, the relevance and fundamental importance of the
principles of distinction and protection are outlined, followed by a
brief examination of some contemporary threats to these norms.
2.
THE PRINCIPLES OF DISTINCTION AND PROTECTION AND

CONTEMPORARY CHALLENGES TO THEM
The principle of distinction is one of the foundation stones upon
which the edifice of international humanitarian law rests. As Fenrick
The International Committee of the Red Cross and the TMC Asser Institute for
International Law are co-organising a series of high-level expert meetings in The
Hague, in an effort to shed more light on the subject of direct participation in
hostilities. The first Joint Expert Meeting took place in June 2003; the second
meeting on 25 and 26 October 2004; and a third meeting is planned for 2005.
6

has stated: Military commanders are obligated to distinguish
between civilian objects and military objectives and to direct their
operations against military objectives.7
The principle of distinction was expressed as early as 1868 in the St.
Petersburg Declaration in the following words: That the only
legitimate object which States should endeavour to accomplish
during war is to weaken the military forces of the enemy. 8 In other
words, no military necessity justifies direct attacks on civilians or
civilian objects. Respect for the principle is what makes it possible
for humanitarian law to fulfil its aim of protecting the civilian
population from the consequences of armed conflict. According to
Watkins: The ability of combatants to plan and conduct their
operations and defend the state, as well as the capacity of a state or
the international community to hold them accountable for failure, is
significantly dependant upon the clarity and relevance of the
distinction principle.9
Several key provisions of The Hague Regulations annexed to the
1907 Fourth Hague Convention, the 1949 Geneva Conventions and
their Additional Protocols of 1977 enshrine the principle of
distinction between civilians and civilian objects and military
objectives.
Article 25 of The Hague Regulations prohibits the attack or
bombardment, by whatever means, of towns, villages, dwellings or
buildings which are undefended. Article 27 states: In sieges and
bombardments all necessary steps must be taken to spare, as far as
possible, buildings dedicated to religion, art, science or charitable
purposes, historic monuments, hospitals and places where the sick
and wounded are collected, provided they are not being used at the
time for military purposes.10
The whole thrust of the Fourth Geneva Convention of 1949 is
towards providing for the protection of civilians and civilian objects,
in particular Part II concerning the General Protection of Populations
Against Certain Consequences of War, and a number of provisions
provide specific protection from attacks against civilian objects,
including Article 18 prohibiting attacks on civilian hospitals 11 and
W. Fenrick, The Law Applicable to Targeting and Proportionality after Operation
Allied Force: A View from the Outside, 3 Yearbook of International Humanitarian
Law (2003) pp. 53 at 66.
8
Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under
400 Grammes Weight, Reprinted in A. Roberts and R. Guelff, Documents on the
Laws of War, 2nd edn. (Oxford, Clarendon Press 1989) pp. 30-31.
9
See Watkin, loc. cit. n. 4, p. 3.
10
Regulations Respecting the Laws and Customs of War on Land, Annex to the
1907 Hague Convention IV Respecting the Laws and Customs of War on Land,
Reprinted in Roberts and Guelff, op. cit. n. 8, pp. 48 at 53.
11
Article 19 of the Fourth Convention provides: The protection to which civilian
hospitals are entitled shall not cease unless they are used to commit, outside their
7

Article 33 concerning collective punishment and reprisals against
protected persons and their property.12
Additional Protocol I augments these provisions of the Geneva
Conventions, without replacing them.13 The additional protections
are set out in Part IV Civilian Population of the Additional
Protocol. Article 48 of Additional Protocol I Basic Rule has already
been alluded to.14 It is supplemented by the very detailed Article
51,15 which sets out specific rules concerning the protection of the
civilian population against military operations; Article 52, 16 which
addresses general protection of civilian objects; Article 53, which
humanitarian duties, acts harmful to the enemy. Protection may, however, cease
only after due warning has been given, naming, in all appropriate cases, a
reasonable time limit, and after such warning has remained unheeded.
12
Article 33 of the Fourth Convention provides: No protected person may be
punished for an offence he or she has not personally committed. Collective
penalties and likewise all measures of intimidation or of terrorism are prohibited.
Pillage is prohibited.
Reprisals against protected persons and their property are prohibited.
13
Article 49(4) of Additional Protocol I provides: The provisions of this Section [i.e.,
Section I, General Protection against the Effects of Hostilities, of Part IV of the
Additional Protocol] are additional to the rules concerning humanitarian protection
contained in the Fourth Convention, particularly in Part II thereof, and in other
international agreements binding upon the High Contracting Parties, as well as to
other rules of international law relating to the protection of civilians and civilian
objects on land, at sea or in the air against the effects of hostilities.
14
Supra n. 2.
15
Article 51 provides: 1. The civilian population and individual civilians shall enjoy
general protection against dangers arising from military operations. To give effect
to this protection, the following rules, which are additional to other applicable
rules of international law, shall be observed in all circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the
object of attack. Acts or threats of violence the primary purpose of which is to
spread terror among the civilian population are prohibited.
3. Civilians shall enjoy the protection afforded by this Section, unless and for such
time as they take a direct part in hostilities.
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) Those which are not directed at a specific military objective;
(b) Those which employ a method or means of combat which cannot be
directed at a specific military objective; or
(c) Those which employ a method or means of combat the effects of which
cannot be limited as required by this Protocol; and consequently, in each
such case, are of a nature to strike military objectives and civilians or
civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as
indiscriminate:
(a) An attack by bombardment by any methods or means which treats as a
single military objective a number of clearly separated and distinct military
objectives located in a city, town, village or other area containing a similar
concentration of civilians or civilian objects; and
(b) An attack which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct military
advantage anticipated.
6. Attacks against the civilian population or civilians by way of reprisals are
prohibited.

protects cultural and religious property; Article 54, which addresses
protection of objects indispensable to the survival of the civilian
population; Article 55, which addresses protection of the natural
environment; and Article 56, which concerns protection of works and
installations concerning dangerous forces. Other articles in Part IV
focus on other ways to increase the protection of the civilian
population, by, for example, the obligation to take precautions in
attacks (Article 57) and against the effects of attacks (Article 58).
Articles 59 and 60 concern localities and zones under special
protection.
Support for the principle of distinction has also come from other
sources. Resolution XXVIII adopted by the 20 th International
Conference of the Red Cross and Red Crescent, held in 1965 in
Vienna, declared that all governments and other authorities
responsible for action in armed conflict should, inter alia, conform to
the principle that distinction must be made at all times between
persons taking part in the hostilities and members of the civilian
population to the effect that the latter be spared as much as
possible. The International Court of Justice, in its Nuclear Weapons
Advisory Opinion, stated that the principle of distinction between
combatants and non-combatants is one of the cardinal principles of
international humanitarian law, and that these fundamental rules
are to be observed by all States whether or not they have ratified
the conventions that contain them, because they constitute
intransgressible principles of international customary law.17
7. The presence or movements of the civilian population or individual civilians

shall not be used to render certain points or areas immune from military
operations, in particular in attempts to shield military objectives from attacks or to
shield, favour or impede military operations. The Parties to the conflict shall not
direct the movement of the civilian population or individual civilians in order to
attempt to shield military objectives from attacks or to shield military operations.
8. Any violation of these prohibitions shall not release the Parties to the conflict
from their legal obligations with respect to the civilian population and civilians,
including the obligation to take the precautionary measures provided for in Article
57.
16
Article 52 provides: 1. Civilian objects shall not be the object of attack or
of reprisals. Civilian objects are all objects which are not military
objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are
concerned, military objectives are limited to those objects which by their nature,
location, purpose or use make an effective contribution to military action and
whose total or partial destruction, capture or neutralization, in the circumstances
ruling at the time, offers a definite military advantage.
3. In case of doubt whether an object which is normally dedicated to civilian
purposes, such as a place of worship, a house or other dwelling or a school, is
being used to make an effective contribution to military action, it shall be
presumed not to be so used.
17
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July
1996, para. 79.

2.1
Defining civilians and civilian status
While the Fourth Geneva Convention of 1949 is exclusively devoted
to the protection of the civilian population, it contains no definition
of civilian. Under Article 4 of the Fourth Convention, persons
protected by it are those who, at a given moment and in any
manner whatsoever, find themselves in case of a conflict or
occupation, in the hands of a Party to the conflict or Occupying
Power of which they are not nationals.18 Article 3 indicates that
during non-international armed conflicts the persons who enjoy
protection against the various forms of violence and infringement
mentioned are [p]ersons taking no active part in the hostilities,
including members of armed forces who have laid down their arms
and those placed hors de combat by sickness, wounds, detention or
any other cause, without any adverse distinction founded on race,
colour, religion or faith, sex, birth or wealth, or any other similar
criteria.
The first attempt in international humanitarian law to identify who
are civilians came in 1977 with Article 50 of Additional Protocol I
(read together with Article 4(A) of the Third Geneva Convention and
Article 43 of the First Additional Protocol). And yet, Article 50(1)
avoids giving any definition of civilians and instead defines civilians
in the negative: civilians are all persons who are not combatants.
Paragraph 1 provides that civilians are persons who are not (1)
members of the armed forces of a Party to the conflict, as well as
members of militias or volunteer corps forming part of such armed
forces; (2) members of other militias and members of other
volunteer corps, including those of organized resistance
movements, belonging to a party to the conflict and operating in or
outside their own territory, even if this territory is occupied,
provided that such militias or volunteer corps, including such
organized resistance movements, fulfill the four conditions of
combatancy.19 The aforementioned combatants qualify for prisoner
However, in the elebii case, a Trial Chamber of the International Criminal
Tribunal for the Former Yugoslavia (ICTY) found that civilians can be considered as
protected persons under Article 4 despite having the same nationality as the
power in whose hand they find themselves. Applying the Nottebohm test, as
applied by the International Court of Justice in the case of Liechtenstein v.
Guatemala, ICJ Reps. (1955) pp. 4 at 23, the ICTY stated that the International
Tribunal may choose to refuse to recognize (or give effect to) a States grant of its
nationality to individuals for the purposes of applying international law. The
Chamber emphasised the necessity of considering the requirements of article 4
of the Fourth Geneva Convention in a more flexible manner. The provisions of
domestic legislation of citizenship in a situation of violent State succession cannot
be determinative of the protected status of persons caught up in conflicts which
ensue from such events. Prosecutor v. Zejnil Delali, Zdravko Muci also known
as Pavo, Hazim Deli, and Esad Lando also known as Zenga, Case No. IT-9621-T, Judgement, 16 November 1998, para. 263.
19
Set out in Article 1 of the Hague Regulations: 1. To be commanded by a person
responsible for his subordinates; 2. To have a fixed distinctive emblem
recognizable at a distance; 3. To carry arms openly; and 4. To conduct their
operations in accordance with the laws and customs of war. Regulations
18

of war (POW) status upon capture. Thus, civilian is a residual
category: whoever is not a combatant shall be deemed to be a
civilian. But, In case of doubt whether a person is a civilian, that
person shall be considered to be a civilian. (Article 50(1) The
civilian population comprises all persons who are civilians (Article
50(2)). Significantly from the perspective of protection of the civilian
population: The presence within the civilian population of
individuals who do not come within the definition of civilians does
not deprive the population of its civilian character. (Article 50(3)
Other sources similarly adopt a negative approach to defining
civilians. The United States Annotated Supplement to The
Commanders Handbook on the Law of Naval Operations, for
example, defines non-combatants as individuals who do not form a
part of the armed forces and who otherwise refrain from the
commission or direct support of hostile acts.20 Watkins notes that
that term also includes a more diverse mix of persons such as
medical officers, corpsmen, chaplains, contractors, civilian war
correspondents and armed forces personnel who are unable to
engage in combat because of wounds, sickness, shipwreck or
capture (ie. POWs). Here, non-combatant is used in the
context of those persons, civilian and military, who should not
be targeted and not in the sense of the combatant/civilian
distinction.21
The quid pro quo for the special protected status enjoyed by
civilians is that they are strictly prohibited from participating in
hostilitiesexcept in the exceptional case where they are
participating in a levee en masse, in which case they shall be
regarded as belligerents provided that they carry their arms openly
and respect the laws and customs of war 22and if they do, they lose
the protections of the Fourth Geneva Convention and the Additional
Protocols safeguarding civilians from attack (although, as shown in
Part 4, they are not devoid of protection). However, legally, civilians
who unlawfully participate in hostilities are not transformed into
combatants, even for the duration of their unlawful participation and
Respecting the Laws and Customs of Land, Annex to 1907 Hague Convention IV
Respecting the Laws and Customs of War on Land, Reprinted in Roberts and
Guelff, op. cit. n. 8, pp. 44 at 48.
20
A.R. Thomas and J.C. Duncan, eds., Annotated Supplement to The Commanders
Handbook on the Law of Naval Operations, 73 International Law Studies (1999)
pp. 296-297.
21
Watkin, loc. cit. p. 4.
22
Article 2 of the 1907 Hague Regulations Respecting the Law and Customs of War
on Land provides that: The inhabitants of a territory which has not been
occupied, who, on the approach of the enemy, spontaneously take up arms to
resist the invading troops without having had time to organize themselves in
accordance with Article 1 [the qualification of belligerents], shall be regarded as
belligerents if they carry arms openly and if they respect the laws and customs of
war.

even if they de facto fulfil some of the conditions of combatancy,
such as carrying their arms openly and respecting the laws and
customs of war. They are what has become known colloquially as
unlawful combatants or unlawful belligerents, that is, they remain
civilians, albeit ones who are unlawfully participating in hostilities.
International humanitarian law applicable in non-international armed
conflicts does not explicitly distinguish between combatants and
civilians (as it does not recognize combatant status) yet it does
recognize that persons who do not take part in hostilities retain their
protected status as civilians (and implies that those who do, lose it).
Under Article 4(II) of Additional Protocol II:
All persons who do not take a direct part or who have ceased
to take part in hostilities, whether or not their liberty has been
restricted, are entitled to respect for their person, honour and
convictions and religious practices. They shall in all
circumstances be treated humanely, without any adverse
distinction. It is prohibited to order that there are no survivors.
Equally, Additional Protocol II provides that those civilians who do
unlawfully participate in hostilities shall lose their protected status
as civilians. Article 13(3) provides: Civilians shall enjoy the
protection afforded by this Part, unless and for such time as they
take a direct part in hostilities.
2.2 Threats to the principle of distinction
The principle of distinction is a corollary of the principle of
protection: without the former, the latter is impossible to uphold.
However, the paradigm of lawful combatants on the one side,
engaged in fighting, and innocent civilians on the other side, not
involved in and protected from hostilities, hardly reflects the reality
of conflict today, if it ever did. The sanctity of the principles of
distinction and protection is threatened by a number of
contemporary phenomena. Several particularly significant ones
deserve mention.
2.3.1 Contemporary trends in armed conflicts
As noted above, the distinction between combatants and civilians is
rooted in international humanitarian law applicable in international
armed conflicts, conflicts which comprise a very small minority of
contemporary armed conflicts. Further, todays non-international
armed conflicts barely conform to the model envisaged by
international humanitarian law for such conflicts. The principle of
distinction is rarely observed in practice in such conflicts. Such
conflicts may not be confined to the territory of a single state, yet
international humanitarian law does not recognize or regulate non-
10

international armed conflicts fought between various armed groups
on the territory of more than one state, or the challenge to
international peace and security presented by localized or
transnational terrorism. It is unclear whether it recognizes the
possibility of an armed conflict that is fought by an armed opposition
group against a state not of its nationality, or various other possible
permutations of conflict, which are no longer merely theoretical
possibilities.
Clausewitzs trinitarian model of war, as a battle fought between
sovereign states, which are composed of a government, an army
and the people, seems increasingly anachronistic in a world in which
many conflicts involve clashes between opposing ethnic, racial or
religious groups within one or more states, or where the goal of the
fighting does not conform to the Clausewitzian view of military
strategy as the continuation or advancement of (the states)
political ends23 but may be driven by rivalry amongst groups for
control over scarce resources, or by religious or ethnic hatred or
competition, etc.24 In such conflicts, the ambition may not be a
resolution of and end to the conflict in ones favour but the
continuation of instability and lawlessness in order to promote a
climate which allows business interests to thrive and criminality to
flourish. Simmering, low-level conflicts in some states and regions
can provide a cover for lucrative organized crime, including
trafficking in drugs, arms and people.25
In some countries, the government has lost the monopoly on
violence. Armed opposition groups may pose a threat to state
security, and where a state does not exercise full control over its
territory, warlords or criminal syndicates often yield de facto
authority. Many states today suggest that their security is even
more threatened by terrorists, in particular the possibility of
terrorists yielding weapons of mass destruction or so-called dirty
bombs, than by other states, although the exaggeration of the
threat for political ends cannot be discounted.
There is also the effect of shifting allegiances and identities to
consider: civilians within a state may have transferred their primary
allegiance from their state of nationality or residence to a religion or
to a non-state actor. This may in some states be exacerbated by the
The views of the Prussian military strategist, Karl von Clausewitz, are set out in
his classical work, On Warfare (London, Penguin Classics 1982). He is most
famous for his view that war is the continuation of politics by other means.
24
For a discussion of some of the new manifestations of conflict see H. Mnkler,
The Wars of the 21st Century, 85 International Review of the Red Cross (2003) p.
7.
25
For a cogent analysis of the changing nature of war away Clausewitzs Trinitarian
model, see M. Van Creveld, The Transformation of War (New York, The Free Press
1991).
23
11

fact that the relationship between states and their citizens is in
reality often far removed from the Weberian ideal.
2.3.2 The civilisation of the military
The past decades have seen the increasing civilianization of the
military in many states, but especially in the United States, home to
the worlds most powerful military, and the involvement of civilians
in many former military tasks.26 Civilians are increasingly recruited
to design, manufacture, maintain and operate several weapons
systems and are involved in some tasks that could potentially be
considered as direct participation in hostilities when carried out in
the context of an armed conflict. This is confirmed by the US
Department of the Army, which stated that:
Historically, civilians have played an important role in the
conduct of U.S. military operations. More recently, Army
civilians have established themselves as an integral and vital
part of Americas Army team. With distinction, they perform
critical duties in virtually every functional facet of Combat
Support and Combat Service Support, both at home and
abroad. Serving beside their deployed uniformed compatriots
they also provide the critical skills necessary to assure the
availability of essential combat systems and weaponry; thereby
maximizing the fighting capability of the combat soldier and
success of the Army wartime and emergency missions.27
A significant factor driving civilianization is cost. It is considered that
the transfer of functions performed by military personnel to civil
service personnel is one way to save costs while affecting force
effectiveness minimally.28 Research carried out by the RAND
Corporation found that civilization can produce cost savings under
many, but not all, circumstances.29 Civilians come without their
families and the perceived need for the same support structures as
military personnel. Civilians receive less investment in training and
education. In particular, they can be employed on flexible terms, as
the need arises. Downsizing or upsizing of civilian employees is
much easier than of military employees. Of course, the lack of
investment in civilian personnel, including in their education and
training, could also have negative consequences.
For a good general overview see M.E. Guillory, Civilianizing the Force: Is the
United States Crossing the Rubicon? 51 Air Force Law Review (2001) p. 11.
27
US Department of the Army Pamphlet 690-47, Civilian Personnel, DA Civilian
Employee Deployment Guide, Headquarters of the Army, 1 November 1995.
28
Rand Research Brief 7520 (1998): Can Civilianization Save on Costs?
http://www.rand.org/publications/RB/RB7520/.
29
S.M. Gates and A.A. Robbert, Comparing the Costs of DoD Military and Civil
Service Personnel, RAND National Defense Research Institute, MR-980-OSD, 1998.
26
12

Technology is another factor driving civilianization. Advances in
weapons technology outpace the ability of the military to train its
own. Some weapons systems come as package deals, which
include maintenance, training and even operation by civilians. 30 As
some states, in particular the USA, come to rely increasingly on
high-tech and computer-driven warfare, reliance on civilian experts
will only increase.
Due to the technological advantage it enjoys in conducting war, the
US currently has the luxury of being able to strike targets thousands
of miles away, but yet enjoy relative immunity from counter-attack.
Thus, the consequences that its widespread and growing civilisation
of the military has for the concept of direct participation have not
yet become fully manifest: the chickens have not yet come home to
roost. The civilians who maintain and operate its weapons systems
that are used in combat in Iraq, for example, and who may be
located a continent away from the targets that they strike probably
do not consider that they are directly participating in hostilities in
Iraq, although probably they are, and they remain for the moment
immune from attack given the limited capabilities of Iraq or the
various resistance groups which the coalition is fighting. But had
Iraq been able to launch long-range missiles at such targets in the
US, it would be difficult to argue that it was doing anything other
than striking legitimate military targets.
Finally, it is important to note that some civilians deployed in
combat situations are physically almost indistinguishable from
military personnel. They may wear uniforms, body armour, helmets,
etc. Even though US civilians working for the military have to wear a
distinguishing patch on their uniform, this would hardly be sufficient
to avoid the enemy confusing them with combatants.31
2.3.2.1 The privatization of formerly military functions
The trend in recent years has been away from direct employment of
civilians by the armed forces and towards privatisation or
corporatiation of the military. In the US, inter alia, many formerly
military functions have been privatised, in particular, logistics and
maintenance functions.32 The Armed Forces have contracts with
hundreds of defense contractors, which provide an array of services.
Many military subcontractors are former military personnel.
Although now civilians, they are hired because of their military
training, often to engage in tasks requiring military skills and which
See on this point M.N. Schmitt, Direct Participation in Hostilities and 21 st
Century Armed Conflict, Festscrift for Dieter Fleck (forthcoming 2004), pp. 501 at
509. (Thanks to the author for providing an advance copy.)
31
See Department of the Army, Pamphlet 690-47, DA Civilian Employee
Deployment Guide (1 November 1995); Department of the Air Force, Instruction
36-801, Personnel, Uniforms for Civilian Employees (29 April 1994).
32
Supra n. 27.
30
13

raise the question of their direct participation in hostilities.
According to Ricks:
Faced with the need to cut personnel, and seeking to preserve
its war-fighting tooth, the post-Cold War military has sought
to privitize much of its support tail. This privitization, which
promises to reduce the number of soldiers in civilian
occupations, is occurring not only on U.S. soil, where
maintenance work is being farmed out to corporations, but also
in other countries where U.S. soldiers operate.33
According to Markusen:
Since the 1970s, the share of American defense effort
performed directly by members of the armed forces and
Pentagon-employed civilians has declined substantially, while
that performed by employees of private sector firms has risen,
for everything from whole weapons system to operations
support and troop training. Since the mid-1990s, politically well
organized constituencies have pressed for more privitization. In
the past two years, the Pentagon has accelerated its efforts to
outsource under the rubric of the Revolution in Military Business
Affairs and has begun experimenting with military training
contracts in selected international spheres of operation. 34
Today, civilian subcontractors are engaged in a wide range of
services for the military in the US and elsewhere, including:
operations planning; maintenance and logistics expertise; computer
and communications technical support; weapons manufacture,
maintenance and operations; engineering; information and
electronic warfare operations; space operations; intelligence
gathering and analysis; scientific research and development;
security; administration, managerial and logistical support;
humanitarian aid delivery; fire fighting; catering; and mail delivery.
In fact, there is almost no area of the US Armed Forces where
civilian subcontractors do not play a vital role.
2.3.3 Terrorism and counter-terrorism
Terrorism constitutes a fundamental and deliberate attack on the
principles of distinction and protection. Indeed, not only do some
T.E. Ricks, The widening gap between the military and society, The Atlantic
Monthly, July 1997. http://www.theatlantic.com/issues/97jul/milisoc.htm.
34
A. Markusen, The Case Against Privatizing National Security, Paper dated 24
September 1999 prepared for discussion at the Study Group on the Arms Trade
and the Transnationalization of the Defense Industry, Council on Foreign Relations,
New
York,
1
October
1999.
http://www.cfr.org/public/armstrade/MarkusenNatSec.html.
33
14

terrorists demonstrate a lack of precision and precaution in their
tactics or a cavalier attitude to civilian safety, often their very
purpose and aim is to attack civilians and inflict as much damage,
suffering and fear as possible. Terrorists who attack civilians within
the context of an actual armed conflict are civilians unlawfully
participating in hostilities, if they have a nexus to the armed
conflict, and terrorism constitutes a war crime.35
What is prohibited during warfare in a fortiori prohibited during
peacetime. Terrorist attacks against civilians in peacetime, while not
violations of international humanitarian law (which does not apply,
as the conditions precedent for its application do not exist) are
prohibited under international criminal law and the national criminal
law of every state.
While nothing justifies callous terrorist attacks on civilians,
unfortunately sometimes counter-terrorist reactions of states are
equally blunt. States reacting to terrorist violence often overreact
and demonstrate a less than exemplary regard for the principles of
distinction and protection of the innocent civilian population.
The noticeable tendency by some states during the war on terror,
particularly the USA, to apply conduct of hostilities rules to attacks
against terrorists undertaken outside the context of an armed
conflict also challenges the principle of distinction. Peacetime
security operations are becoming increasingly militaristic, and states
are justifying resort to lethal force against civilians, for example, on
the grounds that the latter are directly participating in terrorism.
Increasingly, states are asserting that, when faced with an
unconventional and ruthless enemy, such as terrorists, new
methods of policing and combat and an unconventional military
response may be required. In the new security environment, the
lines between war and peace are blurred, and civilians are becoming
targeted in operations which are military in all but name. By the
same logic, the persons involved in fighting the war on terror, who
are mainly civilians, could be considered to be directly participating
in these hostilities. For example, the CIA was responsible for the
operation conducted in Yemen whereby an unmanned military drone
fired a hellfire missile at a car carrying six suspected terrorists. 36
3. THE CONCEPT OF DIRECT PARTICIPATION IN HOSTILITIES
It should be noted at the outset that great uncertainty surrounds
several aspects of the concept of direct participation by civilians in
Article 51(2) Additional Protocol I provides: Acts or threats of violence the
primary purpose of which is to spread terror among the civilian population are
prohibited. Article 4(2)(d) of Additional Protocol II prohibits [a]cts of terrorism.
36
See S.M. Hersh, Manhunt: The Bush administrations new strategy in the war
against terrorism, The New Yorker, 23 and 30 December 2002.
35
15

hostilities, and this area of the law merits close examination. The
need for clarity is obvious, given the serious consequences that
result from unlawful participation and the danger to innocent
civilians posed by unlawful combatants. Not only does the unlawful
participant jeopardise his or her own security and safety but he or
she potentially exposes other civilians to danger, directly and
through contributing to a weakening of the principle of distinction.
3.1 What is meant by the term hostilities?
Hostilities has a narrower meaning than armed conflict. According to
the Dictionary of the International Law of Armed Conflict, hostilities
means an act of violence by a belligerent against an enemy in order
to put an end to his resistance and impose obedience. 37 Needless to
say, the hostilities must occur within the context of an armed
conflict, whether international and non-international. The term
armed conflict refers to the sum of the hostilities, from the
outbreak of conflict to its resolution. Hostilities are violent incidents
occurring within that timeframe.
The term hostilities has both a temporal and a material aspect.
Regarding the former, hostilities covers both the time spent in the
preparation for, the execution of and the return from an attack.
According to the authoritative ICRC Commentary on the Additional
Protocols: It seems that the word hostilities covers not only the
time that the civilian actually makes use of a weapon, but also, for
example, the time that he is carrying it, as well as situations in
which he undertakes hostile acts without using a weapon.38
Regarding the material aspect, hostilities covers acts of war which
are specifically intended by their nature or their purpose to hit the
personnel and the materiel of the armed forces of the adverse
Party.39
3.2 What is meant by the term direct participation in hostilities?
To take a direct part in hostilities is usually taken to mean to engage
in a specific attack or attacks on an enemy combatant or object
during a situation of armed conflict. Article 49(1) Additional Protocol
I explains that: Attacks means acts of violence against the
adversary, whether in offence or defence. The ad hoc International
Criminal Tribunal for the Former Yugoslavia (ICTY) in its judgement in
Prosecutor v. Krnoljelac said that: An attack can be defined as a
P. Verri, Dictionary of the International Law of Armed Conflict (Geneva, ICRC
1992) p. 57.
38
Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949, Y. Sandoz, C. Swinarki and B. Zimmerman, eds.
(Geneva, ICRC/Martinus Nijhoff 1987) (Geneva, ICRC 1987) para. 1943, pp. 618619.
39
Ibid., para. 1942, p. 618.
37
16

course of conduct involving the commission of acts of violence. The
concept of attack is distinct and independent from the concept of
armed conflict. In practice, the attack could outlast, precede, or
run parallel to the armed conflict, without necessarily being a part of
it.40
Both the terms direct and active participation in hostilities occur
in Geneva law, although it can be questioned whether there is any
substantive difference between them. Many commentators use
these terms interchangeably.41 According to Dinstein: In essence,
taking an active part in hostilities (which negates the status of
civilians) implies participation in military operations.42
The jurisprudence of the ad hoc International Criminal Tribunal for
Rwanda (ICTR) indicates that there is no substantive difference
between the terms active and direct. In the Akayesu Trial
Judgement, the Trial Chamber found that these terms should be
treated synonymously.43
3.2.1 Which types of activities constitute direct participation?
According to the ICRC Commentary on Additional Protocol I: Direct
participation in hostilities implies a direct casual relationship
between the activity engaged in and the harm done to the enemy at
the time and place where the activity occurs. 44 The Commentary on
Additional Protocol II states in a similar vein that: The notion of
direct participation in hostilities implies that there is a sufficient
casual relationship between the act of participation and its
immediate consequences.45
But, in fact, this view, like the term direct participation in hostilities
itself is somewhat misleading as it suggests that only direct
participation in a literal sense in activities amounting to attacks or
which enable the launching of attacks on an enemy are covered. On
the contrary, it is generally and increasingly considered that there
are many activities which involve a more indirect role for civilians,
where the civilian is one or more steps (geographically or
temporally) away from the actual application of violence (which may
be virtual rather than physical) and may not even consider him or
herself to be a direct participant in hostilities, and which do not
actually involve attacks in the literal or kinetic sense, or where the
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25, 15 March 2002, para. 54.
Y. Dinstein, The Conduct of Hostilities Under the Law of International Armed
Conflict (Cambridge, Cambridge University Press 2004) p. 152.
42
Ibid., p . 152.
43
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, 2 September 1998, para.
629.
44
Commentary, op. cit. n. 40, op. cit., para. 1679.
45
Ibid., para. 4787.
40
41
17

causality relationship is more indirect, yet which are also considered
as direct participation in hostilities.
One can observe that at both ends of a spectrum of activities lie
acts about which there appears to be consensus or at least little
controversy that they constitute direct participation in hostilities or
that they do not. It is those that lie somewhere in between that give
rise to uncertainty.
Before focusing on the difficult cases, it is useful to first identify
what are generally considered as clear-cut cases of direct
participation by civilians in hostilities. According to Kalshoven: [T]o
take a direct part in hostilities must be interpreted to mean that the
person in question performs hostile acts, which, by their nature or
purpose, are designed to strike enemy combatants or materiel; acts
in other words, such as firing at enemy soldiers, throwing a Molotovcocktail at an enemy tank, blowing up a bridge carrying enemy war
materiel, and so on.46 The US Navy manual states:
Civilians who take a direct part in hostilities by taking up arms
or otherwise trying to kill, injure, or capture enemy personnel or
destroy enemy property lose their immunity and may be
attacked. Direct participation may also include civilians serving
as guards, intelligence agents, or lookouts on behalf of military
forces. Direct participation in hostilities must be judged on a
case-by-case basis. Combatants in the field must make an
honest determination as to whether a particular civilian is or is
not subject to deliberate attack based on the persons behavior,
location and attire, and other information available at the
time.47
A person who delivers ammunition within combat zones is generally
considered to be directly participating in hostilities. 48 Yet, in this
case, these persons are not themselves directly participating in an
actual attack, but engaging in an activity which makes possible the
direct participation in an attack by another person. Still, they are
considered by most authorities to be legitimate military targets for
the duration of their participation.
Civilians do not have to be located in the zone of hostilities or bear
arms themselves in order to be considered as direct participants in
hostilities and as subject to attack themselves. Where civilians are
involved in operating weapons systems during situations of
See F. Kalshoven and L. Zegveld, Constraints on the Waging of War (Geneva,
ICRC March 2001) p. 99.
47
U.S. Navy/Marine Corps/Coast Guard, The Commanders Handbook on the Law
of Naval Operations (NWP 1-14M, MCWP
P5800.7, para. 11.3 (1995).
http://www.cpf.navy.mil/pages/legal/NWP%201-14/NWPCH11.htm.
48
A.P.V. Roger, Law on the Battlefield (Manchester, Manchester University Press
1996) p. 8.
46
18

hostilities, even where they are at a geographical remove from the
zone of hostilities, they can be considered as directly participating.
For example, civilians manning computers which remotely control
drones flying over foreign territory, gathering intelligence, selecting
targets, or engaging in attacks, could certainly be considered to be
directly participating in hostilities. Civilians involved in computer
network attacks against an enemy could also be said to be directly
participating in attacks.
The essential contribution that certain civilians make to the war
effort may render them targetable. For example, certain civilians
participating in strategic weapons programs, and at a geographical
remove from the hostilities, could be considered as directly
participating in hostilities and liable to attack. In 1989, a US
memorandum of law concerning the prohibition of assassination
stated:
The technological revolution in warfare that has occurred over
the past two centuries has resulted in a joining of segments of
the civilian population with each nations conduct of military
operations and vital support activities. one rule of thumb with
regard to the likelihood that an individual may be subject to
lawful attack is his (or her) immunity from military service if
continued service in his (or her) civilian position is of greater
value to a nations war effort than that persons service in the
military.49
The memorandum gives the example of civilian scientists occupying
key positions in a weapons program that is regarded as vital to a
states national security or war effort. It noted that the participation
of civilians in the Manhattan Project (more than 90 percent of the
staff were civilians) was of such importance that they could have
been considered as liable to attack.
Mike Schmitt has proposed a criticality test, specifically the
criticality of the act to the direct application of violence against the
enemy.50 He states that an individual performing an indispensable
function in making possible the application of force against the
enemy is directly participating. In other words, the appropriate test
is whether that individual is an integral facet of the uninterrupted
process of defeating the enemy.51
US Executive Order 12333 and Assassination, Memorandum prepared by the

Chief of the International Law Branch, Office of the Judge Advocate General,
Department of the Army, 2 November 1989.
50
See Schmitt, loc. cit. n. 30, pp. 501 at 505.
51
Ibid., at p. 525.
49
19

3.2.1.1 To what extent is the intention of the participant or the results achieved
relevant?
It was stated above that some persons who might be considered as
direct participants in hostilities might not actually be aware of their
participation, begging the question, to what extent is the civilians
state of mind relevant. What type of mens rea must a civilian
possess in order to be considered as a direct participant in
hostilities? It seems that one necessary mental element is that the
civilian participant must intend to gain a military advantage or
cause harm to the enemy. Indeed military responses to unlawful
civilian involvement in hostilities acknowledge that there must be a
certain intention on the part of the civilian who participates. This is
clear even from the Commentaries to the First Additional Protocol,
which states that direct participation encompasses act which by
their nature and purpose are intended to cause actual harm to the
personnel and equipment of the armed forces.52
Suppose that a civilian peace activist in a state under occupation
decides to destroy the enemys fighter planes, not in a bid to further
the war effort (i.e., consciously to attain a military advantage) but
for the opposite reason: in order to make a political protest against
war and occupation and prevent the use of those planes for attacks
on civilians. Is such a person taking a direct part in hostilities or
engaging in an act of civil disobedience (albeit one that is a crime)?
Most if not all military persons would argueand correctly, it is
submittedthat such an action constitutes direct participation in
hostilities, as the destruction of the planes causes harm to the
enemy and has a direct military consequence for the armed forces,
as it lessens their ability to wage war.
In this respect, while intention is important, it is the intention
to participate (that is, to engage in the activities actually engaged in
and to cause harm or gain a military advantage by doing so) that is
important, not the political or other motivation underlying the
participation. In the above example, the civilian protester clearly
intends to engage in actions that produce the result (the destruction
of the planes). Whether his motivations are positive (he is really
peace-loving) or negative , while not entirely irrelevant to the
decision to target him, would not render him immune from attack,
and in any case, such subjective intentions are in many cases
impossible to discern: in this sense, objective intention, as in the
intention to participate in hostilities, must be distinguished and
separated from (possible political) subjective motivation.
Another question to consider is to what extent the impact of
participation of a civilian in hostilities should be considered. That is,
should a results-oriented approach be adopted or an objective
intention-oriented approach (in the narrow sense used above) or
both? This is particularly relevant with regard to the choice of
52
Commentary, op. cit. n. 38, para. 1942.
20

weapon used.53 Arguably, the results of the participation should not
be determinative of a civilians participation. When the question of
whether or not an individual civilian is considered to be directly
participating in hostilities is made contingent on the actual effects
achieved, it leaves too much to chance. If a civilian lobs a hand
grenade at a soldier during an armed conflict, few would argue with
the proposition that he intends to inflict serious injury or harm and is
a direct participant in hostilities. His objective intention is
discernable from the choice of weapon used. If the hand grenade
misses its target and ends up in a river, is the civilians act any less
illegal, or is he any less of a (future) military threat?
What if a child throws a stone at a soldier on patrol during a
situation of occupation? In this case, the choice of weapon could
indicate a certain intention (or lack of) on the part of the assailant. If
he had wanted to participate in hostilities and thereby inflict actual
harm, he might better have chosen a Molotov cocktail. The fact that
he has chosen as his weapon a stone could mean that he merely
intends to express his dissatisfaction with the occupation. Still,
accidents can happen and it is possible that the stone could strike
the soldier in the head, inflicting a mortal blow. Should his bad luck
in killing the soldier (a results-oriented approach) magically
transform him from a protester into a war criminal? A child who fires
a Molotov cocktail at a soldier might reasonably expect to inflict
serious harm on the recipient. Yet, fate might intervene, and the
Molotov cocktail could miss its target.
These examples hopefully illustrate that there are difficulties with a
results-oriented approach. For one thing, it leaves too much to
chance: a civilian may intend to directly participate, with the goal of
achieving a military advantage, but he may fail in his attempt, or
even be less successful than he had hoped. But for all that, he is no
less of a direct military threat, including an ongoing threat. Indeed,
his initial failure may simply spur him on to try again.
Apropos the example of the child throwing a stone, one can argue
that a child is not in a position to form the necessary intention to
directly participate in hostilities, and the presumption vis--vis every
minor should be that they are not direct participants unless there is
a preponderance of evidence to the contrary (which the use of
weapon could signify). It should also be mentioned that any military
response, even to a direct attack, must be proportionate. Even if the
child is concerned to be a direct participant in hostilities, a
53
It should be noted that the fact of a civilian being armed in a zone of hostilities
should not of itself be sufficient to transform a peaceful civilian into a direct
participant in hostilities. The weapon could be carried for various legitimate
reasons, including personal self-defense. It would at least be necessary for the
weapon to be used, with hostile intent, against an enemy combatant or military
objective in order for the civilian to be considered as a direct participant.
21

proportionate response (one that is informed by the rules of
international humanitarian law) would not involve the use of live fire
or even plastic bullets.
While it can validly be argued that in the cut and thrust of a
situation of armed conflict, there is simply no time to look at the
intention motivating an act, the idea is not to try and read the minds
of civilians engaged in hostilities but to discern their intention from
the available evidence, on a case-by-case basis. This seems indeed
to be consonant with the above-quoted US Navy Manual, which
enjoins combatants in the field to judge each action on its own
merits, and consider all the available information at the time before
reacting. Clearly, wars can only be waged and responses calibrated
based on visible and discernable action, not on the unknown (and
possibly unknowable) intention of an assailant. Bearing in mind that
where reactive force is used, it must be proportionate and militarily
necessary, one could argue that where a civilians clear (on its face)
intention is not the gaining of a military advantage or the infliction
of harm on the enemy, he is probably not directly participating in
hostilities.
3.2.2. Which types of activities do not constitute direct participation?
While, as noted above, making an essential contribution to the war
effort could involve a civilian in direct participation, a non-essential
contribution to the general war efforts (e.g., by supplying foodstuffs
to combatants) is not tantamount to active participation in
hostilities.54 Thus, working in a munitions factory, supplying food to
combatants, transport of food or humanitarian supplies, etc. are not
considered to constitute direct participation. According to A.P.V.
Rogers:
Taking a direct part in hostilities must be more narrowly construed
than making a contribution to the war effort and it would not include
taking part in arms production or military engineering works of
military transport.55
Combatants clearly rely on the munitions made in the factories
where civilians work and are equally dependent on the food they are
supplied with. But in this case, the causality is too remote, and there
is also no objective intention on the part of these civilians to
participate. The civilian does not intend to harm the enemy by his
actions or to gain any military advantage.
Notwithstanding the importance of certain key scientists to a
military effort, most civilian scientists working for the military could
not be considered as directly participating in hostilities where they
54
55
Dinstein, op. cit. n. 41, pp. 27-28.

Roger, op. cit. n. 48, p. 7.
22

are merely participating in the war effort. However, where by their
work civilians put their own lives in danger, they cannot claim the
protection against attack. As Kalshoven points out: civilians cannot
enjoy protection from attack when they enter military objectives
(e.g., by working in a military base or in a munitions factory) or
accompanying military units. This protection is diminished even
when civilians merely live near or pass by a military objective, by
dint of the very tangible danger of a legitimate collateral damage in
case of attack.56
3.2.3 Grey areas
There are numerous grey areas as concerns the question of civilian
participation in hostilities and this working paper can only point out
a few.
Among those activities giving rise to particular concern include
intelligence gathering, rescue operations and the defensive use of
force.
Regarding intelligence gathering, Dinstein distinguishes between a
person who gathers military intelligence in enemy-controlled
territory and a civilian who retrieves intelligence date from satellites
or listening posts, working in terminals located in his home
country.57 The former, in his view, would be a direct participant,
while the latter would not. Yet, what is really the essential difference
between them? These days, vital intelligence, including target
identification, may be gathered by drones remotely controlled by
civilians located thousands of miles away. Such a person may not be
directly participating in as much as he may not actually be
engaged in carrying out a direct attack, but the information he
gathers makes that attack possible, and without it, it would not be
possible to attack that target. There is a clear link and causality can
be shown. He is as much of a direct participantand his
contribution to the war effort is just as vitalas the person who
drives the truck that delivers ammunition in a war zone. As warfare
becomes increasingly technologically sophisticated, it seems almost
quaint to adjudge the question of ones direct participation in it
based on ones proximity to a possibly non-existent physical
battlefield.
As the waging of war comes to increasingly rely on civilians (and
actually, in many cases, simply could not be conducted without the
civilian contribution), the distinction between supporting the war
effort and making an essential contribution to the war effort is
becoming increasingly strained. One determinant could be: does the
civilian make such an essential contribution to the war effort that
without him or her, the attack could not be carried out? A danger
56
57
Kalshoven and Zegveld, op. cit. n. 46, p. 129.

Dinstein, op. cit. n. 41, pp. 27-28.
23

with such an approach is that it might implicate in direct
participation the civilians employed by the armed forces who
themselves may not realise that they are directly participatingat
least in particular attacks. This is why the mental element the
objective intention to participate is so important to establish.
As regards rescue operations, the US Air Force Commanders
Handbook states that
rescue of military airmen downed on land is a combatant
activity that is not protected under international law. Civilians
engaged in the rescue and return of enemy aircrew members
are therefore subject to attack. This would include, for example,
members of a civilian air auxiliary, such as the U.S. Civil Air
Patrol, who engage in military search and rescue activity in
wartime.58
However, the Handbook notes that the care of the wounded on land
and the rescue of persons downed at sea or shipwrecked are
protected activities under international law.
It should be pointed out, however and particularly so given the
increased resort to civilians to do formerly military work that in
reality, civilian crews are used to rescue military personnel downed
on land; indeed, Iraq provides more than one example of this.
Legally, these civilian subcontractors are unlawfully directly
participating in hostilitiesand particularly so if they have to
conduct the rescue operation under fireyet, the safety of army
personnel (and the accomplishment of the mission) may depend on
such direct participation. Clearly, the putting of civilian
subcontractors in harms way for the sake of force protection
without clarifying their legal status and the extent to which they can
use force for the rescue and protection of their military comrades is
unacceptable.
Another related gray area in fact more than in law concerns the
defensive use of force. While international humanitarian law permits
some civilians to carry arms, and in exceptional circumstances to
use arms during situations of armed conflicts, the situation
regarding military subcontractors is oblique. They are allowed to
carry arms and use force in personal self-defence, and it is clear that
the latter should be interpreted narrowly. Use of force in defense of
combatants (i.e., force protection) arguably constitute direct
participation. According to the US Army Field Manual, contractor
employees
cannot take an active part in hostilities but retain the inherent
right to self-defense. Because of their civilian background, they
58
U.S. Air Force Commanders Handbook (1980) paras. 2-8.
24

may posses neither the training nor experience to actively
participate in force protection measures, and the rules governing
warfare preclude them from doing so except in self-defense.59
Schmitt has argued correctly, it is submitted that [g]ray areas
should be interpreted liberally, i.e., in favour of finding direct
participation,60 given that an underlying purpose of the law is to
enable distinction to be made between combatants and civilians.
3.2.4 The temporal element
Article 51(3) of Additional Protocol I indicates that the protection lost
by civilians when they take a direct part in hostilities is temporary,
although the phraseology is somewhat circular and does not really
help to elucidate just how long that period is. It provides, as
mentioned earlier, that civilians lose their protected status for such
time as they take a direct part in hostilities, while not enlightening
on what is encompassed by taking a direct part in hostilities. The
Commentaries to the First and Second Additional Protocols suggest
that direct participation by civilians in hostilities should be
interpreted narrowly.61 Many scholars consider it to have a temporal
limitation which ends once the unlawful attack has been carried out
and the assailant has returned home. It is widely considered that
during the period of either preparing for and executing the attack
and returning home and only during this period the civilian may
be lawfully attacked using military force. According to Kalshoven:
Although certainly lacking on this point, military logic suggests
that the period indicated by these words encompasses both the
time during which the civilian is obviously approaching the
chosen target with a view to carrying out his hostile act
(although one should be aware here of the rule on cases of
doubt in Article 50(1)) and the time he needs to withdraw from
the scene after the act.62
The Commentary on Additional Protocol II notes, in relation to the
temporal aspect, that the civilian who is directly participating in
hostilities may be attacked for as long as his participation last.
Thereafter, as he no presents any danger for the adversary, he may
not be attacked.63
F.M3-100.21, 3 January 2003.
Schmitt, loc. cit., n. 30, p. 505.
61
During the course of the discussions on Additional Protocol I, several
delegations indicated that the expression hostilities used in this article included
preparations for combat and the return from combat. Similar problems arose in
Article 44 (Combatants and prisoners of war) with regard to the expression
military deployment preceding the launching of an attack. Commentary, op. cit.
n. 38.
62
See Kalshoven and Zegveld, op. cit. n. 46, p. 99.
63
Commentary, op. cit. n. 38, para. 4789.
59
60
25

The assumption hereas explicitly made in the Commentaryis
that once the attack has been carried out and the assailant has
returned home, he no longer poses a military threat which must be
neutralized using military force. Given the principle that the least
force necessary to achieve ones military or law enforcement
objectives ought to be employed, a person who has already carried
out an attack and who longer poses a military threat (at that
moment), should be neutralized using the least force possible. That
means that an individual who has earlier posed a military threat by
virtue of his or her direct participation should be arrested rather
than attacked using military force, where this is possible. In
contrast, a combatant is at all times considered to be a legitimate
military objective, even while off duty or asleep in bed.
The above reasoning, while sound in principle, does not necessarily
square with the nature of modern conflict. Indeed, this temporal
limitation vis--vis civilian who take a direct part in hostilities seems
increasingly artificial and impractical, and could even at times be at
odds with what might be presumed to be the underlying military and
law enforcement goals of reducing the security threat presented by
unlawful civilian participation in hostilities and upholding the
principles of distinction and protection.
The difficulty lies not so much with the civilians who carry out once
off attacks on military objectives but with civilians, including
terrorists operating in situations of armed conflict, who are
committed to ongoing attacks against military or civilian targets. It
is difficult to argue that such a person no longer poses a military
threat just because he has walked through his front door after an
attack, where his intention to directly participate in future attacks
has been stated or can be inferred from all the surrounding
circumstances (again, the objective intention). A sleeping
committed terrorist or rebel who is committed to armed struggle
against an opponent poses just as potentially lethal a military threat
as the sleeping combatant. The Israeli government has argued, at
times not without some justification, that the principle of distinction
might be better observed by a targeted military attack on a sleeping
terrorist than by attacking him while he is walking home through a
busy street in the middle of the day. While this should not be
interpreted as an endorsement of the Israeli policy of targeted
assassination64 and it is recognised that in reality drawing a line
between legitimate attacks on unlawful combatants and unlawful
assassinations may be very difficult it does seem that the
generally accepted view of the temporal limitation at least deserves
re-examination. A strict adherence to the temporal limitation (with
The Israeli Defence Forces, relying on a self-defense argument, would argue that
they are acting as a matter of necessity, given that there is, in their view, no other
or more effectiveway to neutralize the terrorist threat.
64
26

the participation ending once the civilian returns home) may not
always be the most efficacious, or the one best designed to
maximize respect for the principles of distinction and protection of
truly innocent civilians. All circumstances should be looked at,
including the ability of the respondent to employ other means to
neutralize the threat, its control over the territory where the civilian
assailant is to be found, necessity (in the context of self-defense)
and the proportionality of the military response. It may not, for
example, be possible to arrest a terrorist or an unlawful combatant
in cases where the state that is attacked does not control the
territory where the civilian is operating.
The generally accepted temporal limitation also requires states to
react quickly, which could lead to unfortunate results. It may not be
possible to gather the intelligence necessary to identify the
assailant in time to attack him while he is still on the job or returning
home from it. A targeted attack after the fact based on firm
intelligence could lessen the possibility of mistaken identity.
Undoubtedly, the subject is complex, politically incendiary and
fraught with difficulties which cannot be fully explored here. But if
the purpose of identifying the temporal duration of loss of immunity
is the minimization or neutralization of the military threat posed by
an individual civilian while he is directly participating in hostilities
(by allowing him to be attacked during these windows of
opportunity), then what seems important in fact are the (ongoing)
objective intentions and military capabilities of the civilian, rather
than the fact of particular incidents of unlawful participation.
Arguably, an individual civilian whose commitment to the unlawful
use of armed force is demonstrable and ongoing should be
targetable until such time as he or she has clearly renounced such a
commitment, and is no longer considered to pose a military threat.
The burden of proof could be put on the individual civilian with
respect to whom the objective intention to participate has been
demonstrated to show that he renounced that intention and is
longer committed to direct participation in attacks. This approach is
also supported by Schmitt, who writes: Once an individual has
opted into the hostilities, he or she remains a valid military objective
until unambiguously opting out. This may occur through extended
non-participation or an affirmative act of withdrawal.65
On the other hand, where there is no objective evidence that a civilian has directly
participated in hostilities or intends to participate in future attacks, the burden
of proving that such an individual can be attacked should lie with the power wishing
to do so. In any event, before any policy of reaction to unlawful civilian participation
is implemented, all the possible implications of removing or altering the temporal
limitation would need to be explored, to ensure that this would not be a case of the
medicine being worse than the disease.
65
Schmitt, loc. cit. n. 30, p. 506.
27

3.2.5 In order to directly participate in hostilities, must there be a nexus with the
armed conflict?
In order to participate directly in hostilities, there should be some
link between the individual civilian participant and the armed
conflict, i.e., the act should not be undertaken for purely private
reasons. During a situation of armed conflict, a man who shoots his
neighbour because of an argument about money is committing a
criminal act, but as the killing is unrelated to the conflict he could
not be said to be directly participating in hostilities or, beyond that,
committing a war crime.
This conclusion seems to be confirmedif only by deductionby the
recent jurisprudence of the ICTY and ICTR. In the Tadi case, an ICTY
Trial Chamber stated that: For a crime to fall within the jurisdiction
of the International Tribunal, a sufficient nexus must be established
between the alleged offence and the armed conflict which gives rise
to the applicability of international humanitarian law. 66 The
Chamber elaborated on the necessary link:
It would be sufficient to prove that the crime was committed in
the course of or as part of the hostilities in, or occupation of, an
area controlled by one of the parties. It is not, however,
necessary to show that armed conflict was occurring at the
exact time and place of the proscribed acts alleged to have
occurred, as the Appeals Chamber has indicated, nor is it
necessary that the crime alleged takes place during combat,
that it be part of a policy or of a practice officially endorsed or
tolerated by one of the parties to the conflict, or that the act be
in furtherance of a policy associated with the conduct of war or
in the actual interest of a party to the conflict; the obligations of
individuals
under
international
humanitarian
law
are
independent and apply without prejudice to any questions of
the responsibility of States under international law. The only
question, to be determined in the circumstances of each
individual case, is whether the offences were closely related to
the armed conflict as a whole.67
In Aleksovski, the Trial Chamber found that: Not all unlawful acts
occurring during an armed conflict are subject to international
humanitarian law. Only those acts sufficiently connected with the
waging of hostilities are subject to the application of this law. It is
necessary to conclude that the act, which could well be committed
in the absence of a conflict, was perpetrated against the victim(s)
concerned because of the conflict at issue. 68 In the Musema case,
the ICTR was even more explicit on the need for a nexus between
Prosecutor v. Dusko Tadic a/k/a Dule, Case No. IT-94-1-T, Opinion and
Judgment, 7 May 1997, para. 207.
67
Ibid., para. 573.
66
28

the accuseds acts and the hostilities, for the purposes of finding a
civilian criminally responsible for a war crime: offences must be
closely related to the hostilities or committed in conjunction with the
armed conflict to constitute serious violations of Common Article 3
and Additional Protocol II. In other words, there must be a nexus
between the offences and the armed conflict. 69 In Rutaganda, the
ICTR Trial Chamber followed Musema.70 [T]he evidence adduced in
support of the charges against the accused must satisfy the
Chamber that such a nexus exists. Thus, the burden rests on the
Prosecutor to prove beyond a reasonable doubt that, on the basis of
the facts, such a nexus exists between the crime committed and the
armed conflict.71
Obviously, being criminal courts, the ad hoc International Criminal
Tribunals have addressed the question of the relationship between
an individual civilian and the armed conflict for the purposes of
determining criminal liability of a civilian, and there has been no
substantive discussion of the question of direct participation in
abstracto. It is not altogether clear whether the same requirements
apply merely for the purposes of determining whether a civilian has
unlawfully participated in hostilities, short of criminal liability,
although it is not unreasonable to surmise that a similar conclusion
would be reached in determining whether certain acts constitute
direct participation (short of criminal behaviour).
3.2.6 In order to directly participate, does the civilian have to be a member of or
have a link with a party to the conflict?
The question has arisen whether, in addition to the nexus
requirement to the conflict, there is a further requirement that the
civilian is a member of a party to the conflict or has some other type
of link with a party to the conflict. This issue has also received
considerable attention in Tribunal case law, although again for the
purposes of finding criminal liability. A review of the relevant
jurisprudence leads to the conclusion that it is not necessary for
there to be a link between the acts committed and a party to the
conflict, at least for the purposes of finding criminal liability for acts
committed.
Until the recent decision of the Appeals Chamber in Akayesuwhich
appeared to settle the matterthere was some divergence in the
jurisprudence of ICTY and ICTR Trial Chambers on this question.
The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June
1999, para. 45.
69
The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement and
Sentence, 27 January 2000, para. 973. See also paras. 259-262.
70
The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR96-3-T, Judgement and Sentence, 6 December 1999, para. 104.
71
Ibid., para. 105.
68
29

In the Kunarac case, the ICTY Trial Chamber touched briefly on the
question of the need for a link between an accuseds acts and a
party to the conflict. Setting out the list of requirements identified in
elebii,72 it stated: It would appear to the Trial Chamber that
common Article 3 may also require some relationship to exist
between a perpetrator and a party to the conflict. 73 However, a
determination on this question was not necessary in this case, as all
of the accused fought on behalf of parties to the conflict.
In the decision of the Trial Chamber in Akayesu, the ICTR iterated
that both the Tokyo trials and other post-World War II trials
unequivocally support the imposition of individual criminal liability
for war crimes on civilians where they have a link or connection with
a Party to the conflict.74 As to what type and degree of connection
or link is required, the Chamber stated that:
For Akayesu [technically, a civilian] to be held criminally
responsible under Article 4 of the Statute, it is incumbent on the
Prosecutor to prove beyond a reasonable doubt that Akayesu acted
for either the Government or the RPF in the execution of their
respective conflict objectives. This implies that Akayesu would
incur individual criminal responsibility for his acts if it were proven
that by virtue of his authority, he is either responsible for the
outbreak of, or is otherwise directly engaged in the conduct of
hostilities. Hence, the Prosecutor will have to demonstrate to the
Chamber and prove that Akayesu was either a member of the
armed forces under the military command of either of
the
belligerent parties, or that he was legitimately mandated and
expected, as a public official or agent or person otherwise holding
public authority or de facto representing the Government, to fulfil or
support the war efforts.75
In Kayishema and Ruzindana, the Chamber also required a link
between the accused and the armed forces. It stated: If individuals
do not belong to the armed forces, they could bear the criminal
responsibility only when there is a link between them and the armed
forces.76
This requirement of a link between the accuseds acts and the
armed forces was reversed in the decision of the Appeals Chamber
decision in Akayesu, where the Chamber found that there is no
explicit provision in the [ICTR] Statute that individual criminal
Supra n. 18.
Prosecutor v. Dragoljub Kunarac, Radomir Kova and Zoran Vukovi, Case No. IT96-23-T&IT-96-23/1-T, Judgement, 22 February 2001, para. 407.
74
Akayesu Trial Judgement, supra n. 43, para. 633. Emphasis added.
75
Ibid., para. 640.
76
The Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-1T, Judgement, 21 May 1999, para. 175.
72
73
30

responsibility is restricted to a particular class of people. 77 it
does not follow that the perpetrators of a violation of Article 3 must
of necessity have a specific link with one of the above-mentioned
Parties.78 It found that the decision of the ICTY in Kunarac had no
support in either statute or case law. On the other hand, the Appeals
Chamber upheld the need for a link between the violations and an
armed conflict.79
It is submitted that this reasoning is equally valid for a finding of
direct participation short of the commission of any additional
criminal act, that is, a link to a party to the conflict or membership
of an armed group is not a necessary element of direct participation,
once a link to an armed conflict is proven.
4. THE CONSEQUENCES OF UNLAWFUL PARTICIPATION
The most serious consequence of taking a direct part in hostilities
has already been alluded to: the civilian loses his or her protected
status and may be attacked, for the duration of his or her
participation, however long that is determined to be.
Anyone who takes part in hostilities, be they a combatant or a
civilian, if captured, may be detained until the end of hostilities.
Only the applicable legal regime will differ, with combatants POW
status under the Third Geneva Convention of 1949 and Additional
Protocol I, and civilians falling under the Fourth Convention.
Since for combatants, participation in hostilities is not per se illegal,
while they may be detained upon capture they should not be
punished merely for the fact of their (lawful) participation.
Conversely, civilians, not being permitted to directly participate in
combat, may be tried and punished for the fact of their unlawful
participation alone, as such activity constitutes a war crime under
the national law of most states.80 Of course, they may also be tried
and published for any additional war crimes they may have
committed during the time of their unlawful participation.
Anyone who has participated in hostilities enjoys the benefit of the
doubt as regards their status. Article 45(1) of Additional Protocol I
provides:
1. A person who takes part in hostilities and falls into the
power of an adverse Party shall be presumed to be a prisoner
of war, and therefore shall be protected by the Third
The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June
2001, para. 436.
78
Ibid., para. 437.
79
Ibid., para. 444.
80
See Kalshoven and Zegveld, op. cit. n. 46, p. 99.
77
31

Convention, if he claims the status of prisoner of war, or if he
appears to be entitled to such status, or if the Party on which
he depends claims such status on his behalf by notification to
the detaining Power or to the Protecting Power. Should any
doubt arise as to whether any such person is entitled to the
status of prisoner of war, he shall continue to have such status
and, therefore, to be protected by the Third Convention and
this Protocol until such time as his status has been determined
by a competent tribunal.
Once his status has actually been determined by a competent
tribunal, pursuant to Article 5 of the Third Convention, and he has
been found not to be a POW, he can be held as a regular detainee
and, importantly, is not devoid of rights. Nor does he cease to be a
protected person under Article 4 of the Fourth Convention. Still,
parties have a certain discretion regarding the treatment of
detained civilians who have unlawfully participated in hostilities.
According to Article 5 of the Fourth Convention:
Where, in the territory of a Party to the conflict, the latter is
satisfied that an individual protected person is definitely
suspected of or engaged in activities hostile to the security of
the State, such individual person shall not be entitled to claim
such rights and privileges under the present Convention as
would, if exercised in the favour of such individual person, be
prejudicial to the security of such State. . . . In each case, such
persons shall nevertheless be treated with humanity, and in
case of trial, shall not be deprived of the rights of fair and
regular trial prescribed by the present Convention. They shall
also be granted the full rights and privileges of a protected
person under the present Convention at the earliest date
consistent with the security of the State or Occupying Power, as
the case may be.
Where civilians who have directly participated in hostilities are not
considered to pose a security risk, the states could grant them all
the rights and privileges of protected persons who are detained.
These rights and protected are set out in detail in Section IV
Regulations for the treatment of internees of the Fourth
Convention.
Article 45(3) of the Third Convention provides: Any person who has
taken part in hostilities, who is not entitled to prisoner-of-war status
and who does not benefit from more favourable treatment in
accordance with the Fourth Convention shall have the right at all
times to the protection of Article 75 of this Protocol. 81 In occupied
Article 75 of Additional Protocol I sets out a series of fundamental guarantees or
minimum standards that must be observed in relation to all persons who have
fallen into the hands of the enemy and who do not benefit from more favourable
81
32

territory, any such person, unless he is held as a spy, shall also be
entitled, notwithstanding Article 5 of the Fourth Convention, to his
rights of communication under that Convention.
As the law applicable during non-international armed conflicts does
not recognize the concept of combatancy, it does not explicitly
recognize any minimum standards of treatment for detainees who
have directed participated in hostilities.
The minimum standards recognized in common Article 3 of the
Fourth Geneva Convention apply specifically to [p]ersons taking no
active part in the hostilities. Similarly, the minimum standards of
protection recognized for civilians in Additional Protocol II (in Articles
4 and 13) are specifically applicable only to persons who do not
take a direct part or who have ceased to take part in hostilities
(Article 4). Under the law of most states, unlawful combatants will
be treated as common criminals, or worse, as treasonous a capital
offense in some countries.
This does not mean, of course, that these persons benefit from no
minimum standards of treatment in detention. Like any detainees,
they would benefit from the non-derogable universal and regional
human rights norms that continue to exist even during armed
conflicts.
5. CONCLUSIONS
The foregoing discussion has sought to identify some of the legal
issues arising from the troubling increase in civilian participation in
hostilities. The most obvious first conclusion is that more research
into this fairly opaque area of the law is urgently needed. Such
efforts are now being undertaken by various bodies and individuals,
but more is surely needed. Clearly, the investigation and the
discussions cannot be purely academic, given that the phenomenon
of unlawful civilian participation in hostilities has serious operational
consequences. The close involvement of the military in these efforts
is to be welcomed and further encouraged.
From the cursory examination conducted here, it seems that
amongst the most crucial questions to resolve are the mental
element (what is required?), the temporal aspect, the burden of
proof, and the military and law enforcement purposes sought to be
achieved or advanced through clarification of the notion of direct
participation.
Regarding the nexus to an armed group, the ICTY and ICTR have
indicated that membership of an armed group is not necessary in
treatment, including protection against violations to their physical integrity and
minimum standards of due process in case of trial.
33

order to find a civilian criminally liable for a war crime but even if a
link to a party is not an absolute requirement for a finding of direct
participation in hostilities, it could be one element indicating the
objective intention to participate unlawfully.
While efforts must be made to pinpoint the modalities of civilian
participation in hostilities, so that the law can keep pace with the
realities on the ground, the ultimate aim must surely be not to
produce an exhaustive list of the varying modes of civilian
participation in hostilities (an impossible and futile exercise) but to
try and identify criteria or common elements of participation which
can be applied across the board, and in both international and noninternational armed conflicts. These elements will have both
physical (actus reus) and mental (mens rea) aspects. Whatever
result is ultimately achieved, be it an elements-based or a
definitional approachmust be able to take account not only of
those forms of civilian participation currently manifest but those
which are likely to present themselves in the future, including in the
types of conflicts that are not yet recognized by international
humanitarian law but which may eventually come to fall under its
umbrella.
Underpinning and propelling forward all these efforts must be a
concern with supporting and strengthening the fundamental goals of
international humanitarian law, in particular, its core customary
principles of distinction and protection. While it is undoubtedly true
that unlawful civilian participation in hostilities weakens the
principles of distinction and protectionand often deliberately so
the response of states to these challenges must not be to weaken
these bulwarks against anarchy further still. If states do not show
leadership in taking the legal and moral high ground in approaching
the challenge of unlawful civilian participation in hostilities, the law
will be rendered an empty shell, and increased suffering of
innocents will be the inevitable result.
34

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