Rule 28
Civilians lose their protection from attack if and for such time as they take a direct part in hostilities.
[Commentary]
- Rule 28 is exclusively concerned with the “protection of civilians from attack” and has no bearing on other protections accorded to civilians, such as those which apply during detention.
- The phrase “for such time” is not in dispute as a reflection of customary international law. What it means is that, ordinarily, once direct participation in hostilities is over, the civilian concerned can no longer be attacked. However, three major controversial issues have emerged.
- The first issue concerns the exact moment in time at which direct participation in hostilities begins and, similarly, the exact moment when it ends. On this, opinions are divided. One view — reflected in the ICRC Interpretive Guidance[277] — takes the position that only concrete preparatory measures and deployment constitute the earliest point of direct participation, and withdrawal from the particular engagement terminates it.[278] The opposing view is that one could go “downstream” and “upstream” as far as the causal connection would stretch. For example, an individual acquiring materials in anticipation of building an improvised explosive device would qualify as a direct participant in hostilities from the moment of doing so.
- The second issue relates to the question of individuals who are members in non-State organized armed groups. Civilians who directly participate in hostilities may act entirely on an individual ad hoc basis. Often, however, non-State organized armed groups emerge which are joined by multiple individual civilians. Such groups, while organized and while participating in hostilities on behalf of one Belligerent Party and against another, do not necessarily “belong” to the Party which they generally support.[279] Of course, if they belong to a Belligerent Party they become part of its armed forces and are no longer civilians, i.e. they are combatants. There is no question that, if such organized armed groups belong to a Belligerent Party, the members are susceptible to attack at all times. The bone of contention relates to non-State organized armed groups in an international armed conflict which do not belong to a Belligerent Party. One view is that if an individual is a member of such a group, that person (at least when in a combat role) is continuously to be regarded as a civilian taking a direct part in hostilities, irrespective of any specific military action against the enemy. The other view, reflected in the ICRC Interpretive Guidance,[280] is that members of an organized armed group not belonging to a Party to the international armed conflict must either be regarded as organized criminals retaining their civilian status or, if the violence reaches the required thresholds of intensity and organization, may qualify as a Party to a separate non-international armed conflict. In the latter case, the organized armed group qualifies as the armed forces of that Party and the individuals concerned lose their civilian status.
- The third issue relates to the question of the so-called “revolving door” phenomenon, whereby a person directly participates in hostilities on a recurrent basis (in the mode of “farmer by day, fighter by night”). According to one view, the issue of membership in a non-State organized armed group does not exhaust the possibilities of the revolving door phenomenon and anyone who is attempting to be a “farmer by day, fighter by night” is to be considered as directly participating in hostilities at all times, meaning that he can be attacked in between military operations. According to the other view, absent membership in an organized armed group, each specific act of direct participation in hostilities must be considered in isolation from the others. Hence, the fact that the same individual is recurrently participating in hostilities, does not mean that he can be attacked in between these specific acts.
- Loss of protection against attack does not mean that the individuals concerned fall outside the protection of the law. The force used against civilians directly participating in hostilities must fully comply with the law of international armed conflict.
- Finally, it ought to be noted that organized armed violence failing to qualify as an international or non-international armed conflict remains an issue of law-enforcement.
- ICRC Interpretive Guidance, at pages 65–68.
- In accordance with this view, general preparation and capacity building (such as civilian factory workers producing weapons, ammunition and military equipment) may contribute to the general war effort but traditionally is not regarded as direct participation in hostilities.
- However, according to the ICRC, directly participating in hostilities “on behalf” of a party means nothing else than “belonging to” that party.
- ICRC Interpretive Guidance, at page 24.
Categories: Section F: Direct Participation in Hostilities
