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Who is a civilian in Gaza? The dangers of adopting a membership approach to "direct participation in hostilities"

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…

The vague language of Article 51(3) AP I

There are, as others have noted, some vague terminology to be found in the wording of Article 51(3), which governs the determination of legitimate military targets. It holds that if a particular individual is taking a “direct part in hostilities” he becomes “for such time” a legitimate military target.

On the face of it, the meaning, being considerably broadly phrased, transpires as to legitimize only those individuals who are up in arms, in the midst of an attack and only for such time that they are conducting the particular attack. This would be the literal interpretation of the provision and also arguably the most complaisant interpretation thereof considering the rules applicable to the other party to the conflict, particularly when the case concerns a state actor with a classically organized army.

The membership approach and the ‘equal application’ principle

Despite the implications of the literal interpretation of the provision as outlined above, they have suggested to adopt a teleological, or otherwise seen as purposive, interpretation of its terms by considering, as they have noted, both experience from practice and the difficulties on the ground as relaxing factors. The conclusion was that the membership approach should be adopted, which would, on the fact of it, allow the state actor party to the conflict to target members of armed groups regardless of whether they are up in arms, allowing for a general imprudence in the pursuit of the military advantage.

The proposition that those who are members of the Qassam brigades, regardless of the frequency and scope of their participation in the hostilities as a whole, become legitimate targets by virtue and on the sole basis of their membership, is problematic to say the least. The question then of whether they become legitimate targets whilst they are teaching or when they are having dinner with their families, is answered in the positive – targeting members of the brigades even when they are not ‘up in arms’ would make for a legitimate military attack.

It should be recalled that the laws of war applicable to the conflict, whether international or non-international, are the same for both sides. International humanitarian law applies symmetrically to all parties to the conflict; in other words, the same rules and standards apply to each party. This foundational basis of the ‘equal application’ principle is the source of a number of problems in the DPIH discussion, the most complex of which is the applicability of the membership approach to state parties with a traditionally organized military force.

It should be further noted that the Program on Humanitarian Policy and Conflict Research at Harvard University has previously released a position paper on DPIH and have outlined the various standpoints on the classification spectrum. Namely, it notes that whilst the membership approach would indeed mean that an overly permissive attitude is adopted towards the definition of legitimate targets, the limited membership approach, which is positioned vaguely half-way between the specific acts approach, applicable to the “ad hoc” participants mentioned above, and the membership approach.

‘Important’  vs. ‘Ad hoc’ participants in hostilities and the ‘revolving door’ situation

It has been noted that in non-international armed conflict there is a difference between combatants and fighters – the fighters are civilians as per IHL who participate in the hostilities in violation of international law, whilst the combatants are classically the members of the army or a military wing of the armed group who fulfill the definition of a “combatant” found in Article 4 of the Third Geneva Convention. This, namely, makes them lose the protection afforded to them by IHL as civilians, but does not, however, give them any additional protection as those who pretend to undertake a combatant role, illegally.

Not apart from this is the fact that those who had taken up arms, with being granted the fully fledged status of a combatant, were claimed by the United States, amongst others, to have formed a new category of combatants, namely, that of “unlawful combatants”. This should be distinguished from the situation of a “levé en masse”. Such a classification does not allow for an intermediate, third category of classification – there are either combatants or civilians, and if an individual does not fall under the definition of a combatant, he is consequentially a civilian.

The first question in the application of the DPIH rule regards the determination of who is “participating directly in hostilities”, particularly when faced by the complex reality presented by international armed groups. Although there is only one type of combatant according to IHL, some experts who participated in the ICRC initiative would then suggest to distinguish between, on the one hand, members of the Hamas Qassam brigades who have a continuous, “important combat function”, and, on the other, those who sporadically participate in hostilities on an “ad hoc” basis without being members of a brigade. Both are combatants, according to their attribution to the brigades, making up the military arm of the Hamas group, but the two are nevertheless segmented in terms of the time that they spend on the battlefield.

One of the most complex issues arises out of the fact that Qassam brigadiers are often in a ‘revolving door’ situation, where they are teachers or doctors during the day, and participants in military operations by night. What has been promoted by a certain group of legal experts and scholars, as a result of the factual blurring of the definition of a combatant, is the adoption of the membership approach.

The extent of “participation” and its temporal scope of application

Recalling the examination of the terms of Article 51(3) above, an individual becomes a legitimate military target only if he is attacked during, before or after the act of combat, or, giving way to the wider terminology, “participation”. Similar to the promotion of the membership approach, a number of scholars have also noted that “participation” may in certain situations include financial wirings and even information transfers, making the temporal scope of application outlined above a much more difficult thing to uphold. In the former case of a brigadier, according to some experts, the particular individual is a legitimate target at all times; however, what are then the implications of such a legal conclusion for the other party to the conflict, i.e. Israeli reservists, who would be subjected to the same legal rules under the abovementioned ‘equal application’ principle.

The case of police officers is a good example for attesting to the problem discussed above. The present interpretations of the DPIH provision illustrate that everything depends on the role that the particular officer performs at the time of attack and/or in general, as a member of a particular international armed group. If he is involved in some way in the fighting operations then he becomes a legitimate target, if he carries a weapon but is a traffic cop and there is no future (as opposed to anticipated) threat that he will participate in the hostilities, he is not a legitimate target. The pivotal question is whether the individual is performing a “continuous combat function”?

The forthcoming publication of the ICRC position on DPIH

The ICRC’s last report on the DPIH issue was published in 2005, following a series of meetings conducted with experts and practicing military legal advisers from around the globe. The process has continued since and the Committee is planned to release its final position report on the DPIH question in the area of March-April 2009, hence the topicality of this particular subject matter in the academic milieu, alongside with its growing relevance on the battlefield.

If the membership approach is to be adopted it should be asked to what extent this could be reconciled with the prime principle of ‘equal application’ or more crucially, the definitional difficulties already evident in the ICRC previous reports. If this approach is adopted, it is likely to endanger the very pillar foundations of international humanitarian law, which serves at its inherent basis to protect the civilian population and not, as it emerges, to facilitate and advance the military effort.

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