Direct Participation in Hostilities

Full Title of Reference

Direct Participation in Hostilities and 21st Century Armed Conflict

Full Citation

Schmitt Michael N., Direct Participation in Hostilities and 21st Century Armed Conflict. In Fischer, H., et al, eds., Crisis Management and Humanitarian Protection: Festschrift fur Dieter Fleck, (pp. 505-529). Berlin: BWV, 2004. Web

Categorization

• Resource by Type: Journal Article
• Threats and Actors: States
• Issues: Cyberwar
• Approaches: International Law (including Laws of War)

Key Words

Humanitarian law, Intervention (International law), Prisoners of war

Synopsis

In this article, Schmitt considers challenges to the legal understanding of “direct participation in hostilities” posed by the shifting nature of contemporary conflict. He first explores the normative framework that outlines how civilians might lose their immunity in attack by participating in combat. Schmitt then turns to review some developments in modern warfare such as the redefinition of the battlefield and the change in the significance of proximity to the frontline. Schmitt also explores the inherent asymmetry of modern warfare and counterterrorism operations. He concludes his discussion by arguing for a broad definition of direct participation, claiming that it best preserves the underlying values resident in humanitarian law, as it leaves less room for ambiguity and deters civilians from participation in ambiguous activities. The appropriate test for participation is whether an “individual is an integral facet of the uninterrupted process of defeating the enemy” (529).

The normative framework is derived from the 1977 Protocol Additional I to the Geneva Convention and its definition of combatants. However, the nature of the requisite direct participation is often uncertain when applied to specific cases. Schmitt argues, “the approach which best comports with the purposes of humanitarian law is one which assesses the critically of the act to the direct application of violence against the enemy” (509). On the temporal boundary of direct participation, Schmitt contends that “once an individual has opted into the hostilities, he or she remains a valid military objective until unambiguously opting out” (510).

Computer Network Attacks (CNAs) raise particular challenges to the application of the direct participation standard. First, can a CNA occurring outside the context of traditional hostilities or a kinetic attack constitute armed conflict? If not, Schmitt argues, the direct participation standard is inapplicable. At this point Schmitt highlights the fact that humanitarian law centers on consequences rather than the means of warfare (526). Thus, humanitarian law norms would apply when CNAs which are attributable to a State, are “more than merely sporadic and isolated incidents and are either intended to cause injury, death, damage, or destruction...or [when] such consequences are foreseeable” (526). Those conducting operations with such effects are direct participants.

Second, Schmitt wonders who may be targeted by a CNA. He points out that there is no prohibition on launching CNAs against those not directly participating in hostilities unless such attacks injure or kill them or damage or destroy their property (527). He concludes that CNAs on individuals are not prohibited if they “merely inconvenience, harass, or diminish quality of life; some human suffering must be likely before CNA becomes restricted to combatants and others directly participating in hostilities” (528).

Additional Notes and Highlights

• Outline of Article:
  • The Normative Architecture
  • The Nature of Modern Combat
  • “Civilianization” of the Military
  • Armed Civilians and Human Shields
  • Counterterrorism
  • Computer Network Attack
  • Concluding Thoughts
• For a general exploration of CNAs, Schmitt suggests: Schmitt, Michael N. & O’Donnell, Brian T. eds., Computer Network Attack and International Law. Newport, R. I.: Naval War College International Law Studies, 2002.
• The article stems from an experts meeting held at the T.M.C. Asser Institute in 2003 at the initiative of the International Committee of the Red Cross. As a result of the meeting and follow-up ones, the ICRC developed the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. Schmitt later on reviewed the ICRC report in: Direct Participation in Hostilities: Perspectives on the ICRC Interpretive Guidance: Deconstructing Direct Participation in Hostilities: The Constitutive Elements, in 42 N.Y.U. J. Int'l L. & Pol. 697 (2010).
• This Article was included in the collection “Krisensicherung und humanitärer Schutz: Festschrift für Dieter Fleck = Crisis Management and Humanitarian Protection” which contains contributions in both English and German.