An evaluation of the meaning and practical implications of the concept of direct participation in hostilities

Abstract

The regulatory structure created by the Law of Armed Conflict ( LOAC ) incorporates terms and concepts that, on initial scrutiny, appear uncomplicated but their meaning and practical application has proven to be highly contested and ambiguous. The notion of Civilian Direct Participation in Hostilities ( C-DPH ), found, arguably, in Common Article 3 of the Geneva Conventions of 1949 ( GC s ) and explicitly in Additional Protocol I of 1977 ( API ), Article 51(3) and Additional Protocol II ( APII ), Article 13(3), is one such concept. C-DPH is a cornerstone concept in LOAC on the conduct of hostilities and has attained the status of customary international law. This is based on the assumption that, on a conceptual level, civilians should be protected from intentional attack unless, and for such time , as they directly participate in hostilities . However, despite the serious practical and legal consequences resulting from C-DPH, neither the GC s nor the AP s define the concept, nor do they outline the actions that amount to C-DPH. C-DPH in asymmetrical hostilities, as a result, currently elicits more disagreement than assent and its novelty creates confusion due to analytical limitations. A universal, comprehensive and practical definition of C-DPH will be useful as LOAC rights can only be comprehensively understood when the meaning and content thereof is defined and clear. The ICRC has produced an Interpretative Guidance on C-DPH but could not publish the document by consent with LOAC experts. There is thus scope for the development of LOAC relevant to C-DPH based on a holistic interpretation thereof, which should include reference to the relevant LOAC instruments, customary LOAC, State practice, judicial reasoning, expert analysis and reference to human rights on the interpretation of C-DPH.