Article

Direct participation in hostilities as a war crime : America's failed efforts to change the law of war

David J.R. Frakt

• Valparaiso University law review, Vol. 46, no. 3, 2012, p. 729-764

English

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This article addresses, in part, the question of what to do with civilian direct participants in hostilities (DPH) who are not killed by opposing armed forces, but are captured. Specifically, the article address the potential criminal prosecution of detained DPHs. The ability to detain provides an opportunity to the detaining power to prosecute the DPH “for an offence arising out of the hostilities.” But is it a crime for someone who does not meet the Geneva Convention requirements for POW status to directly participate in hostilities? In other words, are all DPHs criminals? If so, are they war criminals, or, rather, common domestic criminals? The prevailing international view is that direct participation in hostilities in and of itself is not a war crime. Contrary to the prevailing international view, the United States has attempted, through the military commissions of Guantánamo, to treat direct participation in hostilities as a war crime. This article examines that effort, including the prosecutions of David Hicks and Omar Khadr, and the failed prosecution of Mohammed Jawad for alleged direct participation in hostilities. The article concludes that America's effort to convert all fighting against the U.S. by unprivileged enemy belligerents into a war crime has been a failure.

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