"And for such time as" : the time dimension to direct participation in hostilities
Host item entries:
Journal of international law and politics, Vol. 42, no. 3, 2010, p. 741-768
The author examines the ICRC’s declared view that protection is lost only for the duration of a specific act of DPH and the related notion of the “revolving door of protection.” He evaluates when direct participation comes to an end, and thereafter evaluates what the time dimensions are to the rule as it appears, respectively, in customary and treaty law. There are three main grounds on which the ICRC’s analysis in the Interpretive Guidance can be criticized. First, in deciding what actions constitute direct participation, the ICRC interprets the concepts of preparation, deployment, and return too restrictively. Second, by limiting continuous loss of protection to members of organized armed groups with a continuous combat function, the ICRC gives regularly participating civilians a privileged, unbalanced, and unjustified status of protection in comparison to members of the opposing armed forces, who are continuously targetable. Third, at customary law there is no revolving door of protection and thus the ICRC’s interpretation of the word “participates” in the treaty rule excessively narrows the notion of DPH by inappropriately excluding the notion of continuous participation.