Abstract:
Clarification of the meaning of the phrase “direct participation in hostilities” has been a much awaited and necessary evolution of international humanitarian law. Unfortunately, neither the expert process undertaken by the International Committee of the Red Cross nor the publication of the Interpretive Guidance to the Notion of Direct Participation in Hostilities has resolved the lack of consensus around this difficult concept. The ICRC failed to develop recommendations which could be practicably adopted into operational practice. The model adopted by the ICRC endorsed a permissive approach towards targeting during armed conflict, but attempted to regulate such permissiveness with the promotion of a broad constraint on the concept of military necessity. The likely rejection of this counter-balance as having no foundation in law will allow states to selectively use the more permissive aspects of the Guidance to develop and pursue questionable tactics in complex counter-insurgencies such as Afghanistan. The publication of the Guidance has undermined the important humanitarian protections that exist in a time of armed conflict, and has failed in its stated purpose of providing a clear and coherent interpretation of the law. It represents a significant strategic misstep that will both adversely affect civilians who may be present on the battlefield, and the effectiveness of coalition operations.
