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The past as prologue: the development of the ‘direct participation’ exception to civilian immunity

Published online by Cambridge University Press:  19 June 2009

Emily Camins
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Abstract

The ‘direct participation’ exception to the principle of distinction, found in Article 51(3) of Protocol I and Article 13(2) of Protocol II, embodies a long-recognized concept in the laws governing armed conflict. For centuries the broad notion that humanity demands the protection only of those citizens who are harmless has found expression in the rules and norms relating to war. This article traces the historical factors and trends which influenced the development of the ‘direct participation’ exception in its current form, revealing a tendency towards ‘humanizing’ the law in favour of civilians, notwithstanding their increased military value.

Type
Direct Participation in Hostilities
Information
International Review of the Red Cross , Volume 90 , Issue 872: Direct participation in hostilities , December 2008 , pp. 853 - 881
Copyright
Copyright © International Committee of the Red Cross 2009

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References

1 The term ‘laws of war’ will be used interchangeably, particularly in reference to pre-twentieth century manifestations of the law.

2 See, e.g., Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, Cambridge University Press, Cambridge, 2004, pp. 16–17.

3 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, opened for signature 29 November/11 December 1868 (no entry into force) (St Petersburg Declaration), preamble; see further Dinstein, above note 2, p. 17.

4 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, opened for signature 8 June 1977 (entered into force 7 December 1978) (Protocol I); see also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, opened for signature 8 June 1977 (entered into force 7 Dec 1978) (Protocol II), Article 13(3), in similar terms; and Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2005, Rule 6.

5 Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135, opened for signature 12 August 1949 (entered into force 21 October 1950) (Third Geneva Convention).

6 Protocol I, Article 50(1).

7 See Michael N. Schmitt, ‘War, technology and international humanitarian law’, Program on Humanitarian Policy and Conflict Research at Harvard University, No. 4, 2005, p. 5; Jean-François Quéguiner, ‘Direct participation in hostilities under international humanitarian law’, Program on Humanitarian Policy and Conflict Research at Harvard University, 2003 (working paper), pp. 5–6.

8 See Geiss, Robin, ‘Asymmetric conflict structures’, International Review of the Red Cross, Vol. 88, No. 864 (2006)CrossRefGoogle Scholar; Schmitt, above note 7, pp. 35–41.

9 See generally Schmitt, Michael N., ‘Humanitarian law and direct participation in hostilities by private contractors or civilian employees’, Chicago Journal of International Law, Vol. 5, No. 2 (2004), p. 511.Google Scholar

10 See, e.g., Nuremberg Military Tribunals, Hostage Case (USA v. List et al.), 11 NMT 1230, 1253 (1948).

11 As set out in Protocol I, Articles 48 and 51(1).

12 See Protocol I, Articles 43–45. See further Dieter Fleck, The Handbook of Humanitarian Law in Armed Conflicts, Clarendon Press, Oxford, 1995, p. 211, s. 501.

13 See Vienna Convention on the Law of Treaties, 1155 UNTS 331, opened for signature 23 May 1969 (entered into force 27 January 1980), Article 32, which allows recourse to be had to a treaty's preparatory works if the meaning of the text is ambiguous or obscure. The ongoing discussions about the meaning of Article 51(3) suggest that this is the case.

14 See, e.g., Quéguiner, above note 7; Schmitt, above note 9; N. Melzer, Targeted Killing in International Law, Oxford University Press, Oxford, 2008.

15 See, e.g., Richard Shelly Hartigan, Lieber's Code and the Law of War, Precedent, Chicago, 1983, p. 3.

16 Michael Howard, ‘Constraints on warfare’, in Michael Howard, George J. Andreopoulos and Mark R Shulman (eds.), The Laws of War: Constraints on Warfare in the Western World, Yale University Press, New Haven, 1994, p. 9.

17 Peace Treaty between the Holy Roman Emperor and the King of France and their respective Allies (Treaty of Westphalia), 24 October 1648, available at The Avalon Project, Yale Law School, http://avalon.law.yale.edu/17th_century/westphal.asp (last visited 8 December 2008). Article 118 provided that ‘the Troops and Armys [sic] of all those who are making War in the Empire, shall be disbanded and discharg'd [sic]; only each Party shall send to and keep up as many Men in his own Dominion, as he shall judge necessary for his Security.’

18 Draper, G. I. A. D., ‘The status of combatants and the question of guerrilla warfare’, British Yearbook of International Law, Vol. 45 (1971), pp. 173–5.Google Scholar

19 Ibid., pp. 174, 175.

20 Ibid., p. 174.

21 See ibid., p. 175.

22 Hugo Grotius, The Law of War and Peace (1625), reproduced in Leon Friedman (ed.), The Law of War: A Documentary History, Random House, Inc., New York, 1972, book III, ch. III, s. IX.

23 Ibid., book III, ch. IV, s. V.

24 Ibid., book III, ch. IV, s. VI.

25 Ibid., book III, ch. IV, ss. VI–XIV.

26 See ibid., book III, ch. I, s. II.

27 Ibid., book III, ch. I, s. II, and book III, ch. X, s. I. See further H. Lauterpacht, ‘The Grotian tradition in international law’, British Yearbook of International Law, Vol. 23 (1946), p. 5, and his criticism of Grotius' research methodology.

28 Grotius, above note 22, book III, ch. X, s. I.

29 See Baxter, Richard R., ‘So-called “unprivileged belligerency”: spies, guerrillas and saboteurs’, British Yearbook of International Law, Vol. 28 (1951), pp. 324–5.Google Scholar See further Quincy Wright, A Study of War, University of Chicago Press, Chicago, 1942, p. 308.

30 See Grotius, above note 22, book III, ch. XI, s. VIII.

31 See Judith Gail Gardam, Non-Combatant Immunity as a Norm of International Humanitarian Law, Martinus Nijhoff Publishers, Dordrecht, 1993, p. 13.

32 Grotius, above note 22, book III, ch. XI, s. XVI.

33 Ibid., book III, ch. XI, s. X.

34 Ibid., book III, ch. XI, s. IX.

35 Ibid., book III, ch. XI, s. X.

36 See, e.g., Meron, Theodor, ‘Shakespeare's Henry the Fifth and the law of war’, American Journal of International Law, Vol. 86 (1992), pp. 24–5CrossRefGoogle Scholar, citing Alberico Gentili, De Jure Belli Libris Tres, trans. J. C. Rolfe, ed. Carnegie Endowment for International Peace. Division of International Law, Clarendon Press, Oxford, and H. Milford, London, 1933, pp. 251–4, 427–8.

37 That is, the law as it exists.

38 Jean-Jacques Rousseau, Du Contrat Social, 1762, book I, ch. 4, reproduced in Geoffrey Best, Humanity in Warfare, Columbia University Press, New York, 1980, p. 56.

39 See Jochnick, Chris af and Normand, Roger, ‘The legitimation of violence: a critical history of the laws of war’, Harvard International Law Journal, Vol. 35 (1994), p. 62, n. 48.Google Scholar

40 Gardam, above note 31, p. 12.

41 Ibid., pp. 12–13; Best, above note 38, pp. 55–9 (although critical of the practical effects of Rousseau's ‘well-meaning but practically useless maxim’); Draper, above note 18; H. Lauterpacht (ed), Oppenheim's International Law, 7th edn, Longman, London (Vol. II), 1948–52, p. 205.

42 Geoffrey Best, War and Law Since 1945, Oxford University Press, Oxford, 1994, p. 32.

43 Percy Bordwell, The Law of War Between Belligerents: A History and Commentary, Callaghan & Co., Chicago, 1908, pp. 47–8; cf. Karma Nabulsi, Traditions of War, Oxford University Press, Oxford, 1999, pp. 36–7.

44 Gardam, above note 31, p. 12, citing Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1986, p. 255. On the notion that war in the seventeenth and eighteenth centuries was a game, see further Gunther Rothenberg, ‘The age of Napoleon’, in Michael Howard, George J. Andreopoulos and Mark R. Shulman (eds.), The Laws of War: Constraints on Warfare in the Western World, Yale University Press, New Haven, 1994, p. 86; Wright, above note 29, p. 810; and the Treaty of Amity and Commerce between the United States and Prussia, 8 Stat. 84, 9 July and 10 September 1785, reproduced in Meron, above note 36, p. 25.

45 Howard, above note 16, p. 4; Wright, above note 29, p. 810.

46 Best, above note 42, p. 34; see further, Howard, above note 16, pp. 9–10 (observing that up to the late eighteenth century non-combatants had rarely taken any substantial part in hostilities, and the status of those who did was anomalous).

47 Best, above note 38, p. 56.

48 Ibid.

49 Best, above note 42, p. 258.

50 See, e.g., Best, above note 38, pp. 55–9 (calling the famous maxim ‘pretentious and imprudent’, ‘defective and disadvantageous’ and a ‘well-meaning but practically useless maxim [which] merely encouraged self-deception among the French’); Trainin, I. P., ‘Questions of guerrilla warfare in the law of war’, American Journal of International Law, Vol. 40 (1946), pp. 537–8CrossRefGoogle Scholar; J. Westlake, International Law, Cambridge University Press, Cambridge, 1894, p. 259, quoted in Gardam, above note 31, p. 14.

51 See, e.g., Baxter, above note 29, p. 324 (arguing that war is a conflict against populations, in which each national of one belligerent is pitted against each national of the other); Griswold v. Waddington, 16 Johns 438, 448 (1819) (in which Chancellor Kent held that ‘[a] war on the part of the government is a war on the part of all individuals of which that government is composed’); The Rapid, 8 Cranch, 155, 161, 3 L. Ed. 520 (1814) (finding that ‘[e]very individual of the one nation must acknowledge every individual of the other nation as his own enemy – because the enemy of his country’), both cited in Nurick, Lester, ‘The distinction between combatant and noncombatant in the law of war’, American Journal of International Law, Vol. 39 (1945), p. 681.CrossRefGoogle Scholar

52 See above note 41.

53 St Petersburg Declaration, preamble.

54 Meron, above note 36, p. 25.

55 See, e.g., the French ‘Levée en masse’ decree from 1793: ‘Young men shall go to battle; married men shall forge arms and transport provisions; women shall make tents and clothing and shall serve in the hospitals; children shall turn old linen into lint; the aged shall betake themselves to public places in order to arouse the courage of the warriors and preach hatred of kings and the unity of the Republic’, reproduced in Best, above note 38, p. 59. See further Rothenberg, above note 44, p. 86 (dating the development from 1792–1815).

56 Nabulsi, above note 43, p. 42.

57 The phrase ‘francs-tireurs’ was used, loosely speaking, to denote citizens who took up arms to resist invading forces. See Nabulsi, above note 43, p. 47. For Lieber's definition of ‘guerrilla parties’, see below note 75.

58 The levée en masse referred to citizens who, on express or assumed orders of the government, took up arms for purely defensive purposes. Nabulsi, above note 43, p. 52.

59 See Jochnick and Normand, above note 39, p. 63. On the treatment of irregular troops in the revolutionary wars in the late eighteenth century, see Best, above note 38, pp. 118–19.

60 A. Brenet, La France et l'Allemagne devant le droit international, pendant les opérations militaires de la guerre 1870–1871, A. Rousseau, Paris, 1902, p. 29, quoted in Nabulsi, above note 43, p. 48.

61 Nabulsi, above note 43, p. 45.

62 Ibid., p. 42.

63 Ibid.

64 Ibid., p. 46.

65 But see Best, above note 38, p. 199 (discussing instances of German armed forces in 1870 shooting not only at civilians who shot at them, but also those ‘who were not so clearly doing so’).

66 Trainin, above note 50, p. 536.

67 See generally, Hartigan, above note 15, pp. 1–29.

68 Ibid., p. 9.

69 Ibid.

70 Ibid., p. 2.

71 See Francis Lieber, Guerrilla Parties Considered with Reference to the Laws and Usages of War, D. Van Nostrand, New York, 1862, reproduced in Hartigan, above note 15, p. 31. Hereafter all references to this work are to its reproduction in Hartigan.

72 Hartigan, above note 15, p. 2.

73 For the initial essay produced in response to Halleck's request, see Lieber, above note 71, reproduced in Hartigan, above note 15, pp. 31–44. This was implemented by General Order No. 30: Official Orders Dealing with the Application of Lieber's Essay on Guerrilla Warfare, approved 22 April 1863 (General Order No. 30).

74 Lieber, above note 71, p. 31.

75 By ‘guerrilla parties’ Lieber meant

self-constituted sets of armed men in times of war, who form no integrant part of the organized army, do not stand on the regular pay-roll of the army, or are not paid at all, take up arms and lay them down at intervals, and carry on petty war (guerrilla) chiefly by raids, extortion, destruction, and massacre, and who cannot encumber themselves with many prisoners, and will therefore generally give no quarter. (ibid., p. 41).

76 Ibid., p. 34.

77 Ibid., p. 41.

78 That is, a member of the regular army who operates separately from the main force: ibid., pp. 35, 42.

79 Ibid., p. 42.

80 Ibid., pp. 38–9.

81 Ibid., pp. 39–40.

82 On the importance of ‘openness’, see Draper, above note 18, p. 174.

83 General Orders, no. 100: Instructions for the Armies of the United States in the Field, approved 24 April 1863 (Lieber Code) (reproduced in Hartigan, above note 15, pp. 45–71).

84 Hartigan, above note 15, pp. 6–7.

85 Frank Freidel, Francis Lieber, Louisiana State University Press, Baton Rouge, 1947, quoted in Hartigan, above note 15, p. 15; but see Jochnick and Normand, above note 39, pp. 65–6 (arguing that the Code condoned ‘a barbarous system of warfare’).

86 That is, ‘the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war’. Lieber Code, Article 14.

87 Lieber Code, Article 21, provided that the citizen of a hostile country is an enemy and as such subjected to the hardships of war.

88 Lieber Code, Article 15.

89 The Code went on to observe that in modern European wars, the protection of the inoffensive citizen of the hostile country has become the rule, rather than the exception: Lieber Code, Article 25. See also Articles 23 and 25 (which protected the private relations of the ‘inoffensive’ individual).

90 Lieber Code, Article 15, read with Article 21.

91 The Lieber Code distinguished in Article 155 between loyal citizens and disloyal citizens, and further divided the disloyal citizens into those who sympathise with the rebellion without positively aiding it, and ‘those who, without taking up arms, give positive aid and comfort to the rebellious enemy without being bodily forced thereto’. While loyal citizens were to be protected, disloyal citizens were to have ‘the burden of the war’ thrown upon them, subjecting them to a ‘stricter police’ than usual and requiring them to declare their fidelity to the government. Lieber Code, Article 156.

92 For instance, those who ‘[betray] to the enemy anything concerning the condition, safety, operations, or plans of the troops holding or occupying the place or district’. Lieber Code, Article 91.

93 Lieber Code, s. V (esp. Articles 88–101).

94 Lieber Code, Articles 90 and 91.

95 General Order No. 30, pp. 92–97, 96.

96 Sir Edward Creasy, First Platform of International Law, 1876, cited in Oppenheim, L., ‘On war treason’, Law Quarterly Review, Vol. 33 (1917), p. 278Google Scholar; Best, above note 42, p. 43 (observing that the Code was ‘universally admired’); but see Gardam, above note 31, p. 17 (stating that it is not clear to what extent the Code represented customary law).

97 Killowen, Lord Russell of, ‘International law: the annual address before the American Bar Association’, Albany Law Journal, Vol. 54 (1896–7), p. 122Google Scholar (observing that the manual had been adopted by England, France and Germany).

98 Dietrich Schindler and Jiri Toman (eds.), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents, 3rd edn, Martinus Nijhoff Publishers, Dordrecht, 1988, p. 25.

99 Final Protocol of the Brussels Conference, opened for signature 27 August 1874, 4 Martens Nouveau Recueil (ser. 2) 219 (Brussels Protocol), and Project of an International Declaration Concerning the Laws and Customs of War, not opened for signature, 1874 (Brussels Declaration), both reproduced in ibid., pp. 25–34.

100 Jochnick and Normand, above note 39, p. 67.

101 John Shuckburgh Risley, The Law of War, A. D. Innes and Co., London, 1897, pp. 109–10.

102 St Petersburg Declaration, preamble (stating that ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’).

103 Brussels Protocol.

104 Risley, above note 101, p. 111.

105 Reproduced in Nurick, L. and Barrett, R. W., ‘Legality of guerrilla forces under the laws of war’, American Journal of International Law, Vol. 40 (1946), p. 565.CrossRefGoogle Scholar Cf. Trainin, above note 50, p. 542. See further Nabulsi, above note 43, p. 16.

106 See, e.g., Risley, above note 101, p. 109; Trainin, above note 50, p. 542; Nurick and Barrett, above note 106, p. 565; Nabulsi, above note 43, p. 17.

107 Trainin, above note 50, p. 543; Nurick and Barrett, above note 106, p. 565. This is consistent with the previously prevalent view that international law governs only relations between states: see L. Oppenheim,International Law, 6th edn, ed. H. Lauterpacht, Longman, Green, London and New York, 1940, s. 254, cited in Nurick and Barrett, above note 105, pp. 568–9.

108 Nurick and Barrett, above note 106, p. 565.

109 See Best, above note 38, p. 199; Best, above note 42, p. 43.

110 The Laws of War on Land, adopted by Institute of International Law on 9 September 1880 (Oxford Manual). See further Nabulsi, above note 43, pp. 8–9.

111 Oxford Manual, preamble.

112 Ibid., Article 1.

113 Ibid., Article 2. The definition of armed forces also included the inhabitants of non-occupied territory who take up arms spontaneously to resist invading enemy troops.

114 Ibid., Article 7.

115 Ibid., Article 23.

116 Nabulsi, above note 43, pp. 8–9.

117 Hague Convention (II) with respect to the Laws and Customs of War on Land, 32 Stat. 1803, opened for signature 29 July 1899 (entered into force 4 September 1900) (1899 Hague Convention) and its Annex, Regulations Respecting the Laws and Customs of War on Land (1899 Hague Regulations); Hague Convention (IV) Respecting the Laws and Customs of War on Land, 1910 UKTS 9, opened for signature 18 October 1907 (entered into force 26 January 1910) (1907 Hague Convention), and its Annex, Regulations Respecting the Laws and Customs of War on Land (1907 Hague Regulations). These documents are reproduced in Schindler and Toman, above note 98, pp. 63–98. On the influence of the Brussels Declaration and Oxford Manual, see Schindler and Toman, above note 98, p. 25.

118 1907 Hague Convention, preamble. The preamble to the 1899 Hague Convention adopts similar wording.

119 Best, above note 42, p. 41.

120 See Oxford Manual, above note 114, Article 7; and, Brussels Protocol, above note 103 and accompanying text.

121 See Gardam, above note 31, p. 19.

122 See 1899 Hague Regulations, Article 1; cf. Brussels Declaration, Article 9. See Knut Ipsen, ‘Combatants and non-combatants’ in Dieter Fleck (ed.), The Handbook of International Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford, 1995, s. 308, p. 76.

123 1899 and 1907 Hague Regulations, Article 2.

124 Ibid., Article 29.

125 Ibid.

126 See especially, ‘Martens clause’, 1899 Hague Convention, preamble, and 1907 Hague Convention, preamble, which expressly required states parties to respect customary international law ‘and the dictates of public conscience’.

127 Henry Wheaton, Elements of International Law, literal reproduction of the edition of 1866 by Richard Henry Dana, Jr, ed. with notes by George Grafton Wilson, Clarendon Press, Oxford, and H. Milford, London, 1936, s. 345, p. 362.

128 Ibid., s. 345, p. 362, note 168, citing H. Halleck, International Law, or, Rules Regulating the Intercourse of States in Peace and War, San Francisco, 1861, pp. 427, 428. See further L. C. Green, The Contemporary Law of Armed Conflict, Manchester University Press, Manchester, 1993, p. 101.

129 Hereafter Common Article 3.

130 Risley, above note 101, p. 107 (emphasis added). According to Gardam, the military manuals of the United States and the United Kingdom provide evidence of Risley's approach in practice. Gardam, above note 31, p. 15.

131 Risley, above note 101, p. 107.

132 Ibid.

133 Ibid., p. 108.

134 The status of spies is an exception.

135 See, e.g., Nurick, above note 51, p. 692 (identifying six factors contributing to the near obsolescence of the distinction); Gutteridge, Joyce, ‘The Geneva Conventions of 1949’, British Yearbook of International Law, Vol. 26 (1949), p. 319.Google Scholar

136 See, e.g., Gardam, above note 31, pp. 23, 113.

137 Wright, above note 29, p. 151.

138 See above note 133.

139 See, e.g., Gardam, above note 31, p. 23; Gutteridge, above note 135, p. 319.

140 As set out in 1899 and 1907 Hague Regulations, above note 117, Article 3.

141 See, e.g., Hague Rules on Air Warfare, December 1922–February 1923 (not opened for signature), Article 24(2). Although they never became binding, the Hague Rules were considered an authoritative to attempt to clarify and formulate rules of law governing aircraft in war. Schindler and Toman, above note 98, p. 207.

142 See, e.g., Spaight, J. M., ‘Non-combatants and air attack’, Air Law Review, Vol. 9 (1938), p. 374.Google Scholar

143 See, e.g., ibid., p. 375.

144 Rolland, L., ‘Les pratiques de la guerre aérienne dans le conflit de 1914 et le droit des gens’, Revue de Droit International (1916), p. 559Google Scholar, cited in Spaight, J. M., ‘Legitimate objectives in air warfare’, British Yearbook of International Law, Vol. 21 (1944), p. 162.Google Scholar Rolland's view was influential: see, e.g., Garner, James W., ‘Proposed rules for the regulation of aerial warfare’, American Journal of International Law, Vol. 18 (1924), p. 68.CrossRefGoogle Scholar

145 E.g., Spaight, above note 143; c.f. H. Lauterpacht (ed), above note 41, p. 525; cf. Garner, above note 144, pp. 66–67.

146 Spaight, above note 142, pp. 374–5; see also Spaight, J. M., ‘Air bombardment’, British Yearbook of International Law, Vol. 4 (1923–4), pp. 31–2Google Scholar, which sets out a similar argument.

147 See, e.g., Spaight, above note 144, p. 162. For similar arguments in the context of Article 51(3), see Parks, W. Hays, ‘Air war and the law of war’, Air Force Law Review, Vol. 32 (1990)Google Scholar; cf. Guillory, Michael E., ‘Civilianizing the force: is the United States crossing the Rubicon?’, Air Force Law Review, Vol. 51 (2001), pp. 115–16.Google Scholar

148 Draft Convention for the Protection of Civilian Populations Against New Engines of War, adopted by the International Law Association, 29 August–2 September 1938 (not opened for signature) (ILA Draft Convention), reproduced in Schindler and Toman, above note 98, pp. 223–9.

149 ILA Draft Convention, Article 2.

150 Noone, Gregory P., ‘The history and evolution of the law of war prior to World War II’, Naval Law Review, Vol. 47 (2000), p. 204.Google Scholar

151 Nurick, above note 51, p. 692.

152 See, e.g., Parks, above note 147; cf. A. P. V. Rogers, Law on the Battlefield, Manchester University Press, Manchester, 1996, p. 9. See further Nils Melzer, ‘Third expert meeting on the notion of direct participation in hostilities: summary report’, International Committee of the Red Cross and the TMC Asser Institute, 2005, pp. 21, 23, 32–33.

153 Spaight, above note 143, p. 372; Wright, above note 29, p. 73.

154 See Gardam, above note 31, p. 24. On the effectiveness of morale bombing, see Parks, above note 147, p. 21.

155 See Nurick, above note 51, p. 691.

156 Ibid. See further Lauterpacht, H., ‘The problem of the revision of the law of war’, British Yearbook of International Law, Vol. 29 (1952), p. 365Google Scholar (noting that by 1944 Britain had come to view the civilian population as a legitimate target of aerial bombardment).

157 Best, above note 38, pp. 223–4.

158 See Gardam, above note 31, p. 24; Nurick, above note 51, p. 696.

159 Gardam, above note 31, p. 24; Lauterpacht, above note 156, p. 368; but see Meyer, Jeanne M., ‘Tearing down the facade: a critical look at the current law on targeting the will of the enemy and air force doctrine’, The Air Force Law Review, Vol. 51, 2001, pp. 156–7Google Scholar (arguing that the concept of morale as a legitimate target was universally accepted as one of the advantages provided by air power).

160 See below note 210 and accompanying text.

161 Best, above note 42, p. 115.

162 Here after ICRC.

163 See above, Best, note 42, p. 115

164 Ibid., pp. 115–16 (arguing that ‘[t]he most conspicuous sufferers from bombing, Germany and Japan, were unable to put their case, while the bombing specialists, the USA and the UK, had every reason for preventing the case being put’).

165 That is, the laws designed to protect those who have ceased to fight or have fallen into the power of the adversary.

166 See ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987 (ICRC Commentary on Additional Protocols), [1829].

167 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287, opened for signature 12 August 1949 (entered into force 21 October 1950) (Fourth Geneva Convention).

168 ICRC, Commentary on the Geneva Conventions of 12 August 1949, Vol. IV, 1952 (ICRC Commentary on the Geneva Conventions), p. 10; Gardam, above note 31, p. 25.

169 Fourth Geneva Convention, Article 4; cf. Article 5 (allowing derogation from the Convention where a protected person is engaged in hostile activities).

170 ICRC Commentary on the Geneva Conventions (IV), above note 168, p. 10; see also Gardam, above note 31, p. 25.

171 Common Article 3(1).

172 Gardam, above note 31, p. 26.

173 See, e.g., Quéguiner, above note 7, p. 1.

174 Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, approved by the International Conference of the Red Cross, 1956 (no entry into force) (1956 Draft Rules), reproduced in Schindler and Toman, above note 98, pp. 251–7. See ICRC Commentary on Additional Protocols, above note 166, [1830].

175 ICRC Commentary on Additional Protocols, above note 166, [1831].

176 ICRC, Introduction to the Draft Rules, available at www.icrc.org/ihl.nsf/INTRO/420?OpenDocument (last visited 4 December 2008).

177 ICRC Commentary on Additional Protocols, above note 166, [1832]; See Levie, Howard S., ‘Book review: An International Law of Guerrilla Warfare: the Global Politics of Law-making’, MD Journal of International Law and Trade, Vol. 9 (1985), p. 251.Google Scholar

178 ICRC Commentary on Additional Protocols, above note 166, [1832]; Best, above note 42, pp. 254–5.

179 1956 Draft Rules, Article 1.

180 Ibid., Article 4.

181 Protection of Civilian Populations Against the Dangers of Indiscriminate Warfare, Res. XXVIII, adopted by the XXth International Conference of the Red Cross, Vienna (1965), reproduced in Schindler and Toman, above note 98, pp. 29–30.

182 Ibid.

183 Pictet, Jean, ‘The XXth International Conference of the Red Cross: results in the legal field’, Journal of the International Commission of Jurists, 1996, p. 14Google Scholar, quoted in Keith Suter,An International Law of Guerrilla Warfare: The Global Politics of Law-Making, Francis Pinter, London, 1984, p. 98.

184 Suter, above note 183, p. 98.

185 See ibid., p. 99.

186 Human Rights in Armed Conflicts, UN Res. XXIII, International Conference on Human Rights, UN Doc. A/Conf. 32/41 (Sales No, 68.XIV.2) (1968), reproduced in Schindler and Toman, above note 98, pp. 261–2.

187 Suter, above note 183, pp. 21, 93.

188 Ibid., pp. 106–15.

189 Respect for Human Rights in Armed Conflicts, GA Res. 2444, UN GAOR, 23rd session, Supp. No. 18 (A/7218) (1968), [1(c)]. The resolution affirmed resolution XXVIII of the XXth International Conference of the Red Cross, above note 181. On the work of the International Commission of Jurists, see Suter, above note 183, pp. 21–5. See also The Distinction between Military Objectives and Non-Military Objectives in General and Particularly the Problems Associated with Weapons of Mass Destruction, resolution of the Institute of International Law, Edinburgh sess., Vol. 53 II (1969), p. 375, [1] (which protects those who do not participate in hostilities), reproduced in Schindler and Toman, above note 98, pp. 265–6; Basic Principles for the Protection of Civilian Populations in Armed Conflicts, GA Res. 2675, UN GAOR, 25th sess., supp. no. 28 (A/8028) (1970), [2], which affirms the principle that ‘a distinction must be made at all times between persons taking part in the hostilities and civilian populations’, reproduced in Schindler and Toman, above note 98, pp. 267–8.

190 See Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, ICRC, Res. 13, 21st International Conference of the Red Cross, Istanbul (1969), 98, [1], reproduced in Suter, above note 183, p. 102.

191 Draper, above note 18, p. 175.

192 ICRC, Report on the Work of the Conference of Government Experts, 1971, p. 18, quoted in Suter, above note 183, pp. 64, 110. On the negative effect of this conservatism see Suter, above note 183, pp. 180–1.

193 Suter, above note 183, p. 114.

194 ICRC, First Draft Additional Protocol to the Geneva Conventions of 12 August 1949, 1973 (Draft Protocol I), reproduced in Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Official Records); ICRC, Second Draft Additional Protocol to the Geneva Conventions of 12 August 1949, 1973 (Draft Protocol II) (on internal armed conflict), reproduced in Official Records, Vol. 1–2. On the context surrounding the Draft Protocols, see ICRC, Commentary on Draft Additional Protocols to the Geneva Conventions of 12 August 1949, 1973 (ICRC Commentary on Draft Protocols).

195 See statement of the ICRC delegate at the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Report on the Work of the Conference, 1971, Vol. III, p. 17 (‘the absence of any specific norm on this question has already had a too harmful effect on the civilian population during the course of the events which have occurred during this century’), reproduced in Gardam, above note 31, p. 113.

196 Draft Protocol I, Article 45. On the breadth of the definition of ‘civilian’ see Best, above note 42, p. 255.

197 Michael N. Schmitt, ‘Fault lines in the law of attack’, in Susan Breau and Agnieszka Jachec-Neale (eds.), Testing the Boundaries of International Humanitarian Law, BIICL, London, 2006, pp. 277, 287, summarizes the category of combatants as including

members of the armed forces, militia, volunteer corps, or members of an organized resistance commanded by a person responsible for subordinates and who wear a distinctive sign or uniform, carry weapons openly, and are subject to a disciplinary system capable of enforcing (the law of international armed conflict); and members of a levée en masse.

198 Draft Protocol I, Article 46(1).

199 See also Draft Protocol II, Article 26(2).

200 The idea behind draft Article 46(2) was, according to the ICRC, ‘that civilians taking a direct part in hostilities would during that time lose the protection afforded by the article’. ICRC statement, Official Records, Meeting of Committee III, CDDH/III/SR.5 (1974). This was interpreted by states to include preparations for combat and return from combat. See Report of Committee III, Official Records, CDDH/215/Rev.1 (1975), 272, [53].

201 This is identical to the title of Article 51. See further the statements made following the provision's adoption by the Third Committee: Statements of Byelorussian Soviet Socialist Republic, Colombia, German Democratic Republic, Mexico, Romania, Sweden, Ukrainian Soviet Socialist Republic, Official Records, Plenary Meeting, CDDH/SR.41, Annex, 168–173 (1977).

202 Suter, above note 183, p. 93.

203 See, e.g., Statements of Poland, Byelorussian Soviet Socialist Republic, Colombia, German Democratic Republic, Mexico, Romania, Sweden, Ukrainian Soviet Socialist Republic, Official Records, Plenary Meeting, CDDH/SR.41, ANNEX, 166–173 (1977). See also, Swedish Statement, Official Records, Meeting of Committee III, CDDH/III/SR.8, [7], 137 (1974) (noting that the history and literature of air warfare since the First World War presented evidence that terror raids and area bombardment had limited military value).

204 Chinese Statement, Official Records, Meeting of Committee III, CDDH/III/SR.7, 135–136, [54] (1974).

205 Albania, for instance, reiterated his delegation's view that ‘the main objective of the Conference was to provide effective protection for the civilian population and for freedom fighters in unjust colonial wars’. Albanian Statement, Official Records, Meeting of Committee III, CDDH/III/SR.8, 144, [85] (1974). India was concerned to ensure that civilians lost protection only when they took a direct part in hostilities. Indian Statement, Official Records, Meeting of Committee III, CDDH/III/SR.8, 68, [74] (1974).

206 The word ‘Article’ was replaced with the wider ‘Section’. A comma was also added after the word ‘Section’, but this did not materially affect the meaning of the Article.

207 ICRC Report, Official Records, Committee III, CDDH/215/Rev.1, 275 (1975).

208 Cf. UK Statement, Official Records, Meeting of Committee III, CDDH/III/SR.8, [47], 140 (1974) (noting that the representatives from the United Kingdom and Ghana expressed ‘doubts concerning the word ‘hostilities’, for which a more precise substitute might be found.').

209 ICRC Commentary on Draft Protocols, above note 194, p. 58 (emphasis in original).

210 Ibid., p. 58.

211 Ibid., p. 58 (suggesting that if participation in the war effort were included in the scope of draft Article 46(2), civilians would effectively be denied the protection of international humanitarian law).

212 Proposed amendment CDDH/III/27.

213 Danish Statement, Official Records, Meeting of Committee III, CDDH/III/SR.7, 131, [32] (1974).

214 Australian Statement, Official Records, Meeting of Committee III, CDDH/III/SR.8, 138, [25] (1974).

215 German Statement, Official Records, Meeting of Committee III, CDDH/III/SR.7, 31, [2] (1974).

216 E.g., USSR Statement, Official Records, Meeting of Committee III, CDDH/III/SR. 7, 134, [44] (1974); Polish Statement, Official Records, Meeting of Committee III, CDDH/III/SR.8, 138, [15] (1974); Finnish Statement, Official Records, Meeting of Committee III, CDDH/III/SR.8, 142, [61] (1974) (observing that the deletion of the words ‘and for such time’ could be taken to mean that a person who had once taken a direct part in hostilities would lose civilian status for the duration of such hostilities).

217 ICRC Commentary on Additional Protocols, above note 166, [1942].

218 Ibid., [1942], [1944].

219 Protocol I, Articles 50(1), 43; Third Geneva Convention, Article 4A.

220 See ICRC Commentary on Additional Protocols, above note 166, [1678] (stating that ‘[d]irect participation in hostilities implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and place where the activity takes place’.)

221 See, e.g., Gross, Emanuel, ‘Use of civilians as human shields: what legal and moral restrictions pertain to a war waged by a democratic state against terrorism?’, Emory International Law Review, Vol. 16 (2002), p. 544.Google Scholar

222 ICRC Commentary on Draft Protocols, above note 194, p. 58; above note 210. See further Melzer (2005), above note 152, p. 21.

223 UK, Statement at the CDDH, Official Records, CDDH/SR.41, 1977, p. 164, [119].

224 See generally Reydams, Luc, ‘A la guerre comme à la guerre: patterns of armed conflict, humanitarian law responses and new challenges’, International Review of the Red Cross, Vol. 88, No. 864 (2006).CrossRefGoogle Scholar

225 Hostage Case (USA v. List et al.), above note 10, p. 1253.

226 See above note 30 and accompanying text.

227 Lieber Code, Article 22.

228 See, e.g., Brussels Protocol; 1899 Hague Convention, preamble, and 1907 Hague Convention, preamble (both noting the desire to diminish the evils of war as far as military necessities permit); cf. Oxford Manual, Article 1 (providing that the state of war does not admit of acts of violence, save between the armed forces of belligerent states, and that persons not forming part of the armed forces should abstain from such acts).

229 Risley, above note 101, pp. 107–108.

230 E.g., 1956 Draft Rules, Article 4, above note 180.

231 Protocol I, Article 50(1).

232 1956 Draft Rules, Article 4; see above note 180.

233 Best, above note 42, p. 260.

234 See, e.g., Schmitt, above note 7; Reydams, above note 224; Geiss, above note 8.

235 See, e.g., Reydams, above note 224, pp. 745–6 (likening the present state of global conflict, particularly in weak states, to a pre-Westphalian paradigm of ‘ragged armies and warlords’), 750–2 (on the borderless nature of the belligerent in the ‘war on terror’).

236 See generally Schmitt, above note 9.

237 Schmitt, above note 7, p. 5; Quéguiner, above note 7, pp. 5–6.

238 See, e.g., Geiss, above note 8, pp. 757–60.

239 See ibid., p. 758; Schmitt, above note 7, pp. 35–41.

240 Roger Trinquier, La Guerre Moderne: Une vision française de la contre-insurrection, 1961 (English translation with an introduction by Bernard Fall), cited in Reydams, above note 224, p. 742.

241 See, e.g., Geiss, above note 8, p. 758 (referring in particular to the 2006 conflict between Israel and Hezbollah in Lebanon).

242 See Dunlap, C. J. Jr, ‘The end of innocence: rethinking noncombatancy in the post-Kosovo era’, Strategic Review Vol. 28 (2000), p. 14Google Scholar, discussed in Schmitt, Michael N., ‘Targeting and humanitarian law: current issues’, Israel Yearbook on Human Rights, Vol. 34 (2004), pp. 71–2.Google Scholar

243 Protocol I, Article 51(2).

244 Ibid., Article 51(3).