Report: Red Cross Task Force Defines "Direct Participation in Hostilities" and Protected Civilian Status

by Suraj Sazawal, 6/15/2009

Nonprofit Organizations and Counterterrorism Measures

As warfare moves away from the battlefield and armed forces of nation-states and is often conducted in densely populated cities and regions by organized armed groups, including terrorist organizations, the line between combatants and civilians has become increasingly blurred. To address the pertinent distinction, the International Committee of the Red Cross (ICRC) released Interpretive Guidance on June 2, 2009 that clarifies the meaning of "direct participation in hostilities."

Although the guidance addresses the definition of civilian for the purpose of identifying those protected from attack in an armed conflict, its principles may be useful for identifying who is considered a supporter of terrorism, and therefore off-limits for any type of contact, including aid, from U.S. organizations. The ICRC Seven Fundamental Principles and the 1949 Geneva Conventions establish an impartiality standard that grants humanitarian organizations the right of access to non-combatants during armed conflict. However, U.S. laws bars all access if it involves transactions with designated terrorist organizations. When humanitarian disasters occur in conflict zones, U.S. aid organizations find themselves in conflict with the 1994 International Red Cross Code of Conduct for Disaster Relief when adhering to the laws prohibiting "material support" of terrorism. It is often difficult to determine who is connected to a terrorist organization and thus directly participating in hostilities.

The recommendations offered in this report do not seek to change international humanitarian law (IHL), but "reflect the ICRC's institutional position as to how existing IHL should be interpreted in light of the circumstances prevailing in contemporary armed conflicts." These include respecting the "concept of civilian" in international or non-international armed conflicts and taking precautions in situations where the identity of those under evaluation are in doubt.

The task of clarifying the notion of "direct participation in hostilities" is complicated at best and impossible in the worst of scenarios. Neither the Geneva Conventions nor their Additional Protocols specify what conduct is considered "direct participation in hostilities." The correct identification of certain actors and accurate interpretation of their actions or intentions before or during an armed conflict is a muddled process that susceptible to abuse and error. To address this problem the ICRC's report, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, presents a standard for distinguishing "who may be lawfully attacked, and civilians, who are protected against attack unless and for such time as they directly participate in hostilities."

The report provides the specific standard an act must meet to qualify as direct participation in hostilities, which is:

The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death,injury, or destruction on persons or objects protected against direct attack (threshold of harm)
There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of whichthat act constitutes an integral part (direct causation)
The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detrimentof another (belligerent nexus)

The report was the result of six years of meetings and analysis by legal experts with backgrounds ranging from academic, military and the public and private sectors. After reviewing the information and opinions, a consensus in the report states, "all persons who are not members of State armed forces or of organized armed groups belonging to a party to an armed conflict are civilians and, therefore, are protected against direct attack unless and for such time as they directly participate in hostilities." State armed forces are defined as any organized armed group under the command of a government party participating in the conflict and an organized armed group, common during civil wars, is an armed force in the conflict, but acting independently from the state.

Identifying those persons who are civilians from those participating with an organized armed group is not a straightforward process. Support for insurgencies by civilians is fashioned in a variety of manners, including "the production and supply of weapons, equipment, food, and shelter, or through economic, administrative, and political support." The report says civilians providing assistance to the organized armed groups either sporadically or far from the main area of combat "cannot be regarded as members of an organized armed group unless they assume a "continuous combat function," i.e. unless they assume continuous function involving their direct participation in hostilities."

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