Modern warfare has for a considerable time presented a challenge for the application of the classical laws of war, thereby contributing to their distortion. One of the foundational rules of international humanitarian law, which has been affected by this very symptom, is the principle of distinction. In other words, the question that is asked of attacks taking place as part of an armed conflict, be it international or non-international, is whether a particular object is civilian and whether it is a legitimate military target.
The legal issue of “direct participation in hostilities” (DPIH) becomes a complex matter where one of the parties to the conflict is a non-state actor, i.e. an armed international group. Most recently, this was the case of the Hamas group in the Gaza Strip. There are a number of contentious points that have emanated out of the discussion surrounding the Article 51(3) AP I terminology, i.e. “unless and for such time as they take a direct part in hostilities”.
The ICRC, who has engaged in an extensive consultation process on the interpretation of this particular provision with a group of legal experts in the field, has collated a number of different conclusions the extent of which is yet to be seen in the report that the Committee is planning to release in the upcoming months.
The following presenting a number of critical points that should be recalled in the appreciation of the DPIH discussion…