Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC, June 2009)

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The International Committee of the Red Cross (ICRC) issued an interpretative guide on the issues surrounding direct participation in hostilities under international humanitarian law (IHL).

According to the introduction, “[t]he purpose of the Interpretive Guidance is to provide recommendations concerning the interpretation of international humanitarian law (IHL) as far as it relates to the notion of direct participation in hostilities.”

As such, the Guidance is not meant to replace rules already in place, but instead “reflect the ICRC's institutional position as to how existing IHL should be interpreted in light of the circumstances prevailing in contemporary armed conflicts.”

Part 1 of the Guidance enumerates the ICRC's recommendations on the issue of direct participation in hostilities, and Part 2 provides a detailed discussion on each of the recommendations. According to the guidelines, the transformation and modernization of warfare has led to “confusion and uncertainty as to the distinction between legitimate military targets and persons protected against direct attacks.”

As a result, there is a need to clarify three questions under IHL applicable in both international and non-international armed conflict:

Who is considered a civilian for the purposes of the principle of distinction?
What conduct amounts to direct participation in hostilities?
What modalities govern the loss of protection against direct attack?

The Guidance concludes that “IHL neither prohibits nor privileges civilian direct participation in hostilities.” In other words, once civilians discontinue their participation in hostilities or stop being members of an organized armed group, “they regain full civilian protection against direct attack.” On the other hand, “in the absence of combatant privilege, they are not exempted from prosecution under national criminal law for acts committed during their direct participation or membership.” Finally, civilians who directly participate in hostilities must abide by IHL rules and may be liable for war crimes and other types of international criminal law violations.