Article

Keeping the balance between military necessity and humanity : a response to four critiques of the ICRC's interpretive guidance on the notion of direct participation in hostilities

Nils Melzer

• Journal of international law and politics, Vol. 42, no. 3, 2010, p. 831-916

English, English

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The purpose of the present article is to respond to four critiques of the ICRC's interpretive guidance prepared by four authors who participated along with more than 50 other experts in the ICRC's clarification process on the notion of "direct participation in hostilities" (DPH). As the topics of the four critiques illustrate, a number of particularly difficult issues remained controversial until the end, including, most notably: (1) the criteria for distinguishing civilians from members of organized armed groups; (2) the so-called "revolving door" of protection according to which civilians can repeatedly lose and regain protection against direct attack; and (3) the restraints imposed on the use of force against legitimate military targets. Finally, although the three defining elements of DPH were far less controversial, their application to certain activities, such as voluntary human shielding and hostage taking, still gave rise to significant disagreement among the participating experts.

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