Article

Opportunity lost : organized armed groups and the ICRC "direct participation in hostilities" interpretive guidance

Kenneth Watkin

• Journal of international law and politics, Vol. 42, no. 3, 2010, p. 641-695

English, English

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The treatment of “organized armed groups” will be analyzed in four parts. In the first part, the principle of distinction and the need to ensure respect for, as well as provide acredible interpretation of, the law, thereby enhancing compliance with the Rule of Law, is discussed. Second, the conclusions reached in respect of organized armed groups in the Interpretive Guidance will be set out in order to provide a base-line from which to conduct a critical analysis. This includes separate charts for international and non-international armed conflict that summarize the categories of direct participants and the criteria by which they may be targeted. These charts highlight the complexity of the approach suggested in the Interpretive Guidance. In the third part the analysis will critique the Interpretive Guidance by looking at how well it has assessed the applicable law in respect of contemporary armed conflict and recognized the lingering impact of Just War theory on participation in conflict. It will also look at how armed groups are organized in practice and compare that reality to the approach adopted by the Interpretive Guidance. In the fourth part an alternate theory of membership in organized armed groups will be provided which reflects the common attributes of all members in armed forces regardless of whether they are fighting for a State or a non-State actor.

• The ICRC interpretive guidance on the notion of direct participation in hostilities under international humanitarian law / Ryan Goodman... [et al.]