Direct participation and the principle of distinction : squaring the circle
Contemporary challenges to the laws of war : essays in honour of professor Peter Rowe
Cambridge : Cambridge University Press, 2014
Additional Protocol I in 1977 controversially narrowed the distinction between combatants and civilians. Article 44(3) API has proved to be one of the most controversial provisions in the Protocol. The speed of the transition from civilian to combatant, by simply producing a weapon, has been criticised for shifting the balance between regular and irregular forces too much to the latter's advantage. It also means that civilians are more likely to be targeted. This chapter explores how ICRC has effectively disposed of this with the proposal that members of organised armed groups have a continuous combat function and can be targeted as such. This designation is based on a lasting integration into that group with involvement in the preparation, execution or command of acts that amount to direct participation in hostilities. A person recruited, trained and equipped by the group for direct participation in a conflict can be assumed to have this function, even if not actively engaged in hostilities. However, this does not extend to more peripheral, but still essential, participants, such as financiers, trainers and weapons manufacturers. The ICRC has considered that direct participation depends on three principles: (1) the threshold of harm involved (acts that cause. death, injury and destruction); (2) a direct causal link between an act and this harm (which excludes persons in a supporting role); and (3) a belligerent nexus (the act is in support and to the detriment of parties in a conflict). However the ICRC's Interpretive Guidance has raised as many questions as it has answered.