Two sides of the combatant coin : untangling direct participation in hostilities from belligerent status in non-international armed conflicts
Geoffrey Corn and Chris Jenks
Host item entries:
University of Pennsylvania Journal of International Law, Vol. 33, no. 2, Winter 2011, p. 313-362
The Article begins by discussing the law of armed conflict’s categorization of civilians and belligerents (combatants in International Armed Conflict), and how a lack of an explicit treaty definition of combatant in the Non International Armed Conflict context (NIAC) is an obstacle to acknowledging analogous categorization in NIAC. The Article then explores organizational membership and how subordination to command and control is the fundamental difference between belligerents and civilians in any armed conflict. It will explain the difference between status and conduct based targeting and why a focus on conduct to assess belligerent status is merely a permutation of traditional status recognition analysis. The Article then contrasts that approach by examining why the use of conduct undermines the extension of the Direct Participation in Hostilities (DPH) rule to define enemy belligerent forces. These problems result in the [ICRC] DPH Study’s problematic and arguably schizophrenic imposition of a minimum force requirement even when targeting those engaged in Continuous Combat Function (CCF). The Article will then address why treating all non-state opposition personnel as civilians taking a direct part in hostilities—even when applying the CCF concept—provides these operatives with an unjustifiable windfall and conflates law and rules of engagement. The Article concludes with a proposal of how to reconcile the DPH Study with status based targeting presumptions : maintain the distinction integrity.