1. ATHA Specialized Training on International Humanitarian Law
Direct Participation
in Hostilities
ATHA Specialized Training on
International Humanitarian Law
May 31, 2010
Stockholm, Sweden

2. Direct Participation of Civilians in Hostilities
Civilian v. Combatant
Civilians defined in contradistinction to combatants
Civilians and those hors de combat are protected against direct attack
Article 50, AP I
1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.
Article 51(3), AP I
Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.

3. Three Cumulative Elements (ICRC)
1. Threshold of harm
Act in question must be likely to:
Adversely affect the military operations or military capacity of a party to the conflict; or
Inflict death, or destruction of persons or objects protected against direct attack
2. Direct causation
Must be direct causal link between the resulting harm and:
Specific act; or
Military operation of which act constitutes an integral part
3. Belligerent nexus
Act in question must be specifically designed to support one party to conflict against another party

4. Beginning, End, and Consequences
Beginning and End
A specific act:
Concrete preparatory measures
Deployment to location and execution of act
Return from location following execution of act
Consequences of DPIH
If (re)gained protections against direct attacks:
Can no longer be attacked
Remains subject to violations of domestic and international law which they may have committed during earlier direct participation
DPIH itself is not a violation of IHL, though it may be a violation of domestic law

5. Two Different Approaches
1. Functional membership approach
Civilians v. combatants
Members of armed forces
Look to domestic law
Members of organized armed groups/organizations
Look to whether there is an assumption of a continuous combat function for the group
2. Temporal scope approach
Members of organized armed groups lose protection for duration of membership
Non-members of organized armed groups lose protection against direct attack only for duration of each specific DPIH act

6. ICRC Interpretive Guidance (2009)
10 Recommendations
The concept of civilian in international armed conflict
The concept of civilian in non-international armed conflict
Private contractors and civilian employees
Direct participation in hostilities as a specific act
Constitutive elements of direct participation in hostilities
Beginning and end of direct participation of hostilities
Temporal scope of the loss of protection
Precautions and presumptions in situations of doubt
Restraints on the use of force in direct attack
Consequences of regaining civilian protection

7. Three Difficult Cases 1. Inter-civilian violence
Should amount to DPIH only where it causes either military harm or death, injury, or destruction of person/objects not “in the hands” of the attacker and has a belligerent nexus
2. Voluntary human shields
Should amount to DPIH only where it constitutes a physical obstacle to military operations and thus directly cases military harm
Otherwise: part of proportionality assessment
3. Hostage-taking
Should amount to DPIH only where it directly causes military harm
Otherwise: exclusive law enforcement issue

8. Not DPIH “Levée en Masse’’
Inhabitants on the approach of the enemy spontaneously take up arms
Carry arms openly
Respect IHL
If captured will be treated as POW
“Civilians who accompany armed forces’’
Not members of the armed forces
For instance, GC III Art. 4: War correspondents, supply contractors, members of services responsible for the welfare of the armed forces