Who May be Lawfully Targeted in Non-International Armed Conflicts? - A Legal Analysis of the Notion of Direct Participation in Hostilities

Abstract: The regulations applicable in non-international armed conflicts, Common Article 3 to the Geneva Conventions I-IV and Additional Protocol II, offer protection to civilians who do not directly participate in the hostilities. There is no commonly accepted definition of direct participation in hostilities in treaty-based international humanitarian law, State practice or international jurisprudence. This thesis focuses on examining how the notion of direct participation in hostilities is interpreted by looking at various views of the notion. The thesis also examines the consequences of these different views. The International Committee of the Red Cross, whose humanitarian mission is to protect and help people affected by armed conflict, have issued a detailed interpretative guidance with their interpretation of the notion, which is examined and presented in the thesis. Since their guidance has faced wide criticism, the thesis also presents criticism from Michael N. Schmitt, who participated in the project resulting in the guidance but withdrew his name upon reviewing the final draft since he did not support its findings. Conclusively, the thesis shows that the notion of direct participation in hostilities is ambiguous. The ambiguity has consequences for all actors in international law, both individuals, States and organizations. The absence of a commonly accepted interpretation opens up the possibility for States and organized armed groups to unilaterally interpret the notion and such interpretations are often not made public. This is problematic since low predictability and lack of transparency is never desirable regarding legal problems. Further, the thesis shows that the interpretation of the notion by the International Committee of the Red Cross can be abused by the parties to an armed conflict. Finally, their interpretation stands a risk to not balance the military necessity against humanitarian concerns well enough.