PANEURPSKA VYSOK KOLA

FAKULTA PRVA

DIPLOMOV PRCA
FP-13466-9339

2015

Bc. Nina PPALOV

PANEURPSKA VYSOK KOLA

FAKULTA PRVA

NZOV PRCE
FP-13466-9339

DIPLOMOV PRCA

tudijn program:

Prvo

Pracovisko (stav):

stav medzinrodnho a eurpskeho prva

Vedci diplomovej prce:

prof. JUDr. Dalibor Jlek, CSc.

Bratislava 200915

Titul PRIEZVISKO

PANEURPSKA VYSOK KOLA

FAKULTA PRVA

Zadanie zverenej prce

Autorka prce:
tudijn program:
tudijn odbor:
Evidenn slo:
ID tudenta
Typ zverenej prce:
stav:
Jazyk prce:
Meno a priezvisko kolitea:
Nzov prce:

Bc. Nina Ppalov

Prvo
3.4.1 Prvo
FP-13466-9339
9339
Diplomov prca
stav medzinrodnho a eurpskeho prva
anglick
prof. JUDr. Dalibor Jlek, CSc.
Modalities governing the loss of civilian protection
in armed conflicts

Anotcia:
Normy mezinrodnho humanitrnho prva upravuj dv formy asti v neptelstv:
pmou a nepmou. K otzce pm a nepm asti vydal Mezinrodn vbor
ervenho ke interpretan dokument v roce 2009. Otzka se tak stala objektem
zjmu jednoho z sel odbornho asopisu European Journal of International Law v roce
2013. Mezinrodn smlouvy o mezinrodnm humanitrnm prvu coby leges speciales
vymezuj vznam vrazu civilista. Kdeto souslov ast v neptelstv, a pm
nebo nepm vysvtluje shora zmnn interpretan dokument. Student/ka mus
skoumat spsoby straty ochrany civilist, jako z temporlneho i z personlnho
hlediska. Dle mus vedle mezinrodnch smluv zkoumat praxi stt a rozhodnut
mezinrodnch trestnch tribunl a mezinrodnch i vnitrosttnch soud.

Schvaujem:
Vedci stavu: __________________________
Dtum schvlenia:

Prehlsenie
Prehlasujem, e som

diplomov prca vypracovala samostatne, pln zoznam

pouitch prameov uvdzam v zozname literatry a zdroje som vyuil spsobom vo

vede obvyklm.
....................................
Nina Ppalov

Poakovanie

Na tomto mieste by som sa rada poakovala svojmu vedcemu diplomovej prce, prof.
Daliborovi Jlkovi, za cenn pripomienky, rady a as, ktor mojej prci venoval.

Abstrakt
Bc. Nina Ppalov, Modalities governing the loss of civilian protection in armed
conflicts, stav medzinrodnho a eurpskeho prva, Paneurpska Vysok kola,
Fakulta prva, vedci prce prof. JUDr. Dalibor Jlek, CSc., Bratislava 2015

Cieom tejto zverenej prce je prezentcia spsobov straty ochrany civilistu

v ozbrojenom konflikte. Pre el predstavenia tmy, vysvetlm definin rozdiel medzi
kombatantmi a civilistami a poukem na sasn tendencie modernho vojnovho
konfliktu potiera toto zkladn rozlenie. Najprv je mojim zmerom vysvetli
negatvnu definciu civilistu a vysvetli veobecn el humanitrneho prva, ktor
spova v ochrane o najvieho zberu osb poas ozbrojenho konfliktu. Predkladm
termn ochrany civilistov poda interpretcie Medzinrodnej komisie ervenho kra.
V druhom rade vysvetujem potrebu interpretcie ochrany civilistu v kontexte
modernch metd boja. Zmeny vo veden vojny s nsledne zhrnut. Sasne kladiem
draz pozadie asymetrickho vedenia boja. Nsledne dvam do pozornosti itateovi
motivciu nettnych astnkov vojny zastova sa boja so statusom civilistu. Po
tretie a aj v najvom rozsahu sa prca sstreuje na spsoby straty prvnej ochrany
civilistu pomocou prvneho interpretovania priamej asti. Spsob straty ochrany je
vysvetlen na zklade asovej a osobnej psobnosti priamej asti. V rmci analzy
asovej psobnosti, rozoberm rozdielne interpretcie pre individulnych civilistov
a lenov militantnch skupn. V analze personlnej psobnosti vyberm tri skupiny
nezkonnch kombatantov: oldnierov, skromn vojensk spolonosti a dobrovon
udsk tty, a testujem prvne normy ktor tvoria podmienky pre stratu ochrany proti
priamemu toku.

Kov slov: medzinrodn humanitrne prvo, priama as v ozbrojenom

konflikte, princp rozlenia, strata civilnej ochrany, asymetrck motdy boja, defincia
civilistu, ozbrojen skupiny, oldnieri, skromn vojensk spolonosti, dobrovon
udsk tty

Abstract
Nina Ppalov, Modalities governing the loss of civilian protection in armed conflicts,
Department of International and European Law, Pan-European University, Faculty of
Law, supervisor prof. JUDr. Dalibor Jlek, CSc., Bratislava 2015

The aim of this thesis is to present the different modalities of loss of civilian protection
in armed conflicts. To introduce the topic I explain the difference between civilians and
combatants and point out the modern tendencies of blurring this distinction in
contemporary warfare. Firstly, I intent to explain the negative definition of civilians and
point out the goal of humanitarian law to protect the widest scope of persons possible.
By introducing the definition of a civilian, I lay out to the notion of civilian protection
accordingly to the interpretation of the ICRC on the notion of direct participation in
hostilities. Secondly, I explain the need of interpretation of civilian participation in the
context of modern methods of combat. The change in leading war is then summarised
and I highlight the background of asymmetric warfare. Then, I put forward the
motivation of non-state actors to participate in hostilities under civilian status. Thirdly
and most importantly, the thesis concentrates on modalities of loss of protection by
exploring the legal basis for direct participation in detail. The modality of loss of
protection is then presented accordingly to the temporal and personal scope of direct
participation. By elaborating the temporal ambit, I discuss different interpretations for
individual civilians and members of para-militant groups. In analysis of the personal
ambit, I depict three recognised groups of unlawful combatants: mercenaries, private
military contractors and voluntary human shields; and challenge legal norms that create
the conditions for the loss of protection against direct attack.

Key words: international humanitarian law, direct participation in hostilities, principle

of distinction, loss of civilian protection, asymmetric warfare, definition of civilian,
non-state armed groups, mercenaries, private military contractors, voluntary human
shields

Table of contents
List of abbreviations

Introduction

1.Civilians under the law of armed conflicts

11

1.1

Principal of distinction

11

1.2

Protection against direct attack

13

2.Civilians in modern armed conflicts

17

2.1

Character of modern armed conflicts

17

2.2

Involvement of civilians on the battlefield

19

3.Modalities governing the loss of protection against direct attack

20

3.1

Temporal scope and the meaning of for such time

20

3.1.1

Individual participation

21

3.1.2

Participation based upon membership in an armed group

24

3.2

Personal scope

27

3.2.1

Mercenaries

29

3.2.2

Private military contractors

32

3.2.3

Voluntary human shields

38

Conclusion

45

List of references

46

List of abbreviations
Additional Protocol I.

I Protocol Additional to the Geneva

Conventions of 12 August 1949, and
relating to the Protection of Victims of
International Armed Conflicts
(Protocol I)

Additional Protocol II.

AP II Protocol Additional to the Geneva

Conventions of 12 August 1949, and
relating to the Protection of Victims of
Non-International Armed Conflicts
(Protocol II)

CCF

Continuous Combat Function

DPH

Direct participation in hostilities

Geneva Convention III.

GC III Geneva Convention (III) relative to

the Treatment of Prisoners of War
(1949)

Geneva Convention IV.

GC IV Geneva Convention (IV) relative to

the Protection of Civilian Persons in
Time of War (1949)

IAC
ICC
ICRC
ICTY

International armed conflict

International Criminal Court
International Committee of the Red Cross
International Criminal Tribunal for the
former Yugoslavia
International humanitarian law
Non-international armed conflict
Law of armed conflict
Organised armed group
Prisoner of War

IHL
NIAC
LOAC
OAG
POW

1 Introduction
Contemporary armed conflicts do not more resemble classic wars as they are illustrated
in history books. The battle happens often in the centre of civilian environment and the
warfare has accustomed its method of combat to the phenomenon of civilian
participation in hostilities. For my final diploma thesis, I have chosen a topic concerning
the notion of direct participation in hostilities and its implication on civilian protection
against direct attack in armed conflicts.

The publication of the ICRCs Interpretative Guidance on the Notion of Direct

Participation in Hostilities has provided a new perspective to analysis of civilian
participation in armed conflicts. The missing legislation leaves the notion of direct
participation to be interpreted by analogy of the fundamental principles of humanitarian
law and grants the academic and professional floor with space for versatile approach to
its interpretation. With my thesis, I want to try to introduce the polarised interpretations
and give modest glance to their practical application.

My goal is not to follow one legal opinion but rather the explanation of the differences
and their practicality in modern warfare situations. In order to present the distinctions of
civilians, combatants and some particular group of non-combatants, I shall advert to the
aspect of time and personal occupation of certain civilians. I have especially chosen
mercenaries who are usually professional soldiers unfit to compare themselves to
members of armed forces. Then I depicted private contractors, since the national armies
more and more outsource combatant work from private industry. Finally, I describe the
nation of voluntary human shields who bring the recourse of war to attention of media
at most. In both temporal as personal aspect of direct participation, I try to analyse the
legal protection of civilians. Conclusively, I try to determine the possibility of loss of
civilian protection, either conditioned by duration of direct participation or by the roles
that civilians nowadays identify themselves with on the battlefield.

1. Civilians under the law of armed conflicts

Civilian population becomes the victim of any armed conflict unfolding in its imminent
distance. Its presence near battlefields, whether optional or not, poses a great risk
individual civilians. Therefore, it has been inevitable for the humanitarian law to
develop in a course of protection for the most vulnerable at the time of war. The
distinction between combatants and civilians is crucial for this protection. A definition
of a civilian as such has never been adopted and the key to make the distinction possible
has been determined by the definition of a combatant. Thus by simple analogy, all who
do not fall within the category of a combatant are civilians.
The negative definition enables an approach that encompasses a broader mass of
persons and grants protection against dangers arising from military operations in a
larger scope. The First Additional Protocol to the 1949 Geneva Conventions has adopted
a definition of civilians as persons who are not members of the armed forces. 1
Regardless of whether a definition uses the collective term civilian population or the
individual one, civilians, the opposition to the notion of a combatant 2 is crucial for
establishing this status and safeguarding of the protection that is attributable to the
group. In order for civilians to enjoy their protection against attack, they must be
distinguished from the lawful military targets accordingly to the principle of distinction.
The only exception to the definition of civilians, also identified by international law, is
the legal status of lave en masse. This category implies to inhabitants of an unoccupied
territory. In case of an invasion the civilian population is free to take up arms in order to
resist its enemy and while doing so, the fighting civilians are considered to be lawful
combatants. The exceptional phase of switching statuses is conditioned by carrying
arms openly and the respect of the laws and customs of war.3 However the exception
exists, current armed conflicts do not create much opportunities for its application.
The practice of states too affirms the custom, which clearly distinguishes members of
armed forces and civilians in international armed conflicts. Likewise, the International
1

Additional Protocol I., Article 50 (1)

Geneva Convention III., Article 4 (A)
3
Convention (IV) respecting the Law and Customs of War on Land, The Hague, 18 October 1907 (further
Hague Regulations); Article 2; https://www.icrc.org/ihl/INTRO/195 and Geneva Convention III., Article
4(A)(6)
2

10

Criminal Tribunal for the Former Yugoslavia has given its interpretation upon how to
define civilians. The judgment on the Blaki case from 2000 described civilians as
persons who are not, or no longer, members of the armed forces 4. However, the
practice, defining members of armed opposition groups as members of armed forces in
an inter-State armed conflict, is rather more discordant. Most military manuals define
civilians as the counterpart of either the members of armed forces or combatants, yet
remain without any mention about other classes of persons, for example members of
armed opposition groups.5

1.1

Principal of distinction

The obligation to distinguish between civilians and combatants is undoubtedly the pillar
of law of armed conflict and forms a customary rule. The principal was already
presented by the St. Petersburg Declaration, which describes it as the only legitimate
object which States should endeavour to accomplish during war is to weaken the
military forces of the enemy 6. The following Hague Regulations did not go very much
into detail of making a literal rule about distinguishing combatants from civilians. But
the Regulations laid down prohibition of attacking civilian objectives, to be more
precise: the bombardment of towns, villages, dwellings, or buildings which are
undefended7. At last, the principle has been codified in the articles of the Additional
Protocol I.8.
The principal is described as the Basic rule of the Additional Protocol I. codifying that
the Parties to the conflict shall at all times distinguish between civilian population and
combatants, and between civilian objects and military objectives and accordingly shall
direct their operations only against military objectives 9. The development of
humanitarian law has always tried to mirror the noble endeavour of safeguarding
4

ICTY judgement: The Prosecutor v. Tihomir Blaki; case No. IT-95-14-T; 3 March 2000; para180;
http://www.icty.org/x/cases/blaskic/tjug/en/bla-tj000303e.pdf
5
ICRC: Customary Rule No. 5. and commentary; https://www.icrc.org/customaryihl/eng/docs/v1_rul_rule5
6
Preamble of the Declaration Renouncing the Use, in Time of War, of certain Explosive Projectiles; Saint
Petersburg, 29 November/11Decemebr 1868; https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?
action=openDocument&documentId=568842C2B90F4A29C12563CD0051547C
7
Hague Regulations, Article 25; supra note 3
8
Additional Protocol I., Article 48, Article 51(2) and Article 52(2)
9
Additional Protocol I., Article 48

11

civilians protection against the atrocities of war. Modern conflicts often reflect an
imbalance between parties fighting and their sources of means of combat. This has lead
to the abuse of the cardinal rule, commonly in favour of the parties to the conflict lesser
technically advanced. Unfortunately, the strategic blending that I intent to introduce in
this thesis, blurs the lines between those, who shall be fundamentally distinct at the
times of ongoing armed conflict.
The dichotomy laid down by the principle 10 should not be left to distinction between
civilians and members of armed forces only. Such partition is not always suitable since
there are more groups of persons affiliated with armed forces yet not performing any
combat function. At first, medical and religious personnel are excluded from the notion
of combatant but they are comprised within armed forces. The rule is laid down already
in the Hague Regulations according to which armed forces of the belligerent parties
may consist of combatants and non-combatants.11 Secondly, there are dissident armed
forces and other organized armed groups. It is not very clear whether also members of
opposition armed groups shall be treated as combatants for the purposes of the
distinction. Meanwhile, if treated as civilians who directly take part in hostilities, they
shall lose their civilian protection against direct attack upon their action but only as long
as and for such time they engage in hostilities.

1.2

Protection against direct attack

Bearing in mind the distinction, an obvious rule can be followed: all enemy combatants
can be lawfully attacked at all times. The mode of enemy activity is irrelevant and the
attack can be performed when advancing or maintaining position, or retreating.
10

Yoram DINSTEIN: Distinction and Loss of Civilian Protection in International Armed Conflicts;
International Law and Military Operations / Michael D. Carsten, ed.; Naval War College 2008; p. 183
11
Hague Regulations, Article 3, supra note 3

12

Likewise, the relevance does not matter when attacking an individual or a whole unit.
However, the law poses limitations in certain circumstances. The Hague Regulations do
not allow the attack: on neutral territory; in the time of ceasefire; when performed by
prohibited weapons; when performed by perfidious acts; when performed on
combatants, who were made hors de combat either by own surrender or by injury; as
well as when the attack may cause excessive civilian casualties.12
The essential feature of distinction is the protection of civilians and civilian objects. As
opposed to combatants, civilians enjoy protection from attack by enemy in wartime. The
intentional targeting of civilians is a war crime defined by the Rome Statute 13. Under the
Statute, the term attack is an act of violence that can be understood as loss of civilian
life, injury both physical and psychological as well damage to civilian property. Thus,
the term attack contains wide range of violent deeds and its interpretation is fairly but
justifiably extensive.
The purpose of an attack is an efficient weakening of the belligerent opponent and thus
should not be aimed to terrorise civilians who happen to be the foes nationals. The goal
of destroying populations moral cannot be the purpose of an attack and spreading terror
among civilians is prohibited accordingly to humanitarian law14. Any attack or threat in
densely populated areas is capable of producing casualties that spread fear and terror but
its intentional purpose needs to aim at the military adversary. The distress interfering
with civilian lives is a side effect of war and only attacks objected to cause such effect
alone render the action unlawful15. However wrecking the repercussions of an attack
might be, the legality of the attack is evaluated accordingly to its former intent.
Furthermore, the principle of distinction does not reason the prohibition of deliberate
attack only but also those attacks that are indiscriminate in their nature. When an attack
is not specifically targeting any military objective or the attacker is incapable to control
the aftermath of killing civilians, the attack is considered indiscriminate. The risk
usually lies with launching missiles against objectives located within residential areas.
Most of the indiscriminate attacks occur in non-international armed conflicts. The
asymmetry of belligerent parties is regular in inter-state warfare and the ban on
12

Yoram DINSTEIN: Distnction and Loss of Civilian Protection, p.184; supra note 10
Rome Statute of the ICC, Article 8(2)(b)(i)-(ii)
14
Additional Protocol I., Article 51(2)
15
Dieter FLECK (ed.), The Handbook of International Humanitarian Law, 2nd edn., Oxford: Oxford
University Press, 2008, p. 105
13

13

indiscriminate attacks plays a bigger role than deliberate targeting of civilians. The
current armies of civilised nations are not likely to target civilian population on purpose,
however, there are non-state actors who repeatedly lack concern about civilian
casualties and proceed in operations without sensible calculations.
The adversary of national armed forces frequently operate with imprecise weapons and
their attack responses lack premeditation. The chance of incidental indiscriminate
attacks is much higher in this case and civilians are likely to be exposed to unavoidable
risk. However, indiscriminate attacks is not solely the ruling method of warfare of nonstate parties. Performance of air raids in highly populated areas of Gaza strip 16 are the
very example of such military practice. In this particular ongoing conflict, not only
Palestinian side but also the very well trained and equipped army of Israel target
military objectives in the middle of residential areas. Both parties to the conflict
endanger civilians living near the Gaza/Israeli border. On the other side of the
battlefield, Palestinian armed groups, including Hamas, use indiscriminate rockets,
which they fire into South Israel17 and cause loss of civilian lives, injury and damage on
infrastructure in a large scale too.
Not only civilians and combatants must be distinguished but also the objectives ascribed
to them. The civilian objectives are outlawed from attack. The definition of civilian
objectives resembles the one of civilians. Protection against attack is attributable to all
objectives that are not military. The exclusion follows the definition of a military
objective that states:
Attacks shall be limited strictly to military objectives. In so far as objects are
concerned, military objectives are limited to those objects which by nature, location,
purpose or use make an effective contribution to military action and whose total or
partial destruction, capture or neutralisation, in the circumstances ruling at the time,
offers a definite military advantage.18

16

HUMAN RIGHTS COUNCIL: HUMAN RIGHTS IN PALESTINE AND OTHER

OCCUPIED ARAB TERRITORIES Report of the United Nations Fact-Finding
Mission on the Gaza Conflict; A/HRC/12/48 25 September 2009, para 59.;
http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf
17
Amnesty International: Israel/Gaza: All sides must protect civilians as conflict escalates; 8 July 2014;
https://www.amnesty.org/en/articles/news/2014/07/israelgaza-all-sides-must-protect-civilians-conflictescalates/
18
Additional Protocol I, Article 52(2)

14

Like the civilian status does not exclude the lawfulness of direct attack against a civilian
when conditions of his direct participation are met, the civilian objects are too targetable
while used for military purposes. The buildings such as hospitals or places of worship of
which purpose is solely civilian can be abused in times of war for storing weapons or
sheltering combatants. The attacker shall always presume premises to be civilian in
cases of doubt19. The presumption is automatic when it comes to places dedicated to
civilian use. Only the severe abuse of such premises and its evidence make them
targetable. As for example, many mosques hospitals and schools have been used in the
Gaza strip to store rifles and ammunition. Rockets and mortar shells have been launched
from these sides20. The properties of misusing the characteristics of a military objective
remind of the thin line between a combatant and a civilian when they are at the same
time on the same place. For the protection of civilians and civilian objects to be
maintained, it is crucial that military operations are concentrating on identifiable lawful
targets.

2 Civilians in modern armed conflicts

The current armed conflicts bring humanitarian law to face new challenges of modern
warfare. A fast-growing number of non-state parties attempts to find their place on the
battlefield. These parties try to hide themselves from the whole concept of dual
distinction. First of all the increasing involvement of non-combatants call for a new
qualification of combatants. Secondly, the complex mixture of participants disables their
clear identification essential for targeting. Eventually the unclear status brings confusion
to what treatment each group is ought to be afforded. In the following subchapters, I

19

Additional Protocol I, Article 52(3)

Terrence McCoy: Why Hamas stores its weapons inside hospitals, mosques and schools; The
Washington Post; July 31, 2014; http://www.washingtonpost.com/news/morningmix/wp/2014/07/31/why-hamas-stores-its-weapons-inside-hospitals-mosques-and-schools/
20

15

would like to introduce the character of modern armed conflicts and possible
involvement of civilians on the battlefield.

2.1

Character of modern armed conflicts

The 21st century topic, terrorism, provides the output of modern warfare. The campaign
on terrorism transforms the methods of combat. The risks poising the states and its
citizens are growing with the possibilities that the information age offers. The ever more
blending of domestic and international criminal acts leaves zero chance for civilian lives
to be spared. Imbalance between fighting parties demands this change and the weaker
party to conflicts have to come with perfidious tactics for achieving any military
advantage. Warfare, which has been described as asymmetric, demands acting,
organizing and thinking in alternatives as opposed to the one of the opponent. The
success lies in exploitation of the opponents weaknesses and consecutive enhancement
of ones military advantage. The asymmetric warfare has been described as when a
weaker party to an armed conflict seeks to defeat its superior adversary by using
methods that are not in conformity with humanitarian law and disregard protection of
civilians and civilian objects.21 The triumph in beating the stronger party stands on
unlawful means of combat. Why is this so effective for non-state belligerents? It might
be because their stronger opponent does not dare to deviate from the established
international rules and cares about its reputation, as well as does not want to face the
consequences and scrutiny by the media.
The asymmetry of fighting parties is not completely a new phenomenon. Finding and
using the opponents weaknesses is the way to succeed in war. The disparity between
the parties to the conflicts is enhanced by innovation and technological lead. Even if the
equipped and well-trained forces are in advantage, it is paradoxical how great the risk of
defeat by non-state actor is. However, the stronger party now really makes the
technological leap obvious by overcoming its weaker opponents without physically
entering the country. This has been clearly represented by the example of using drones
for more than intelligence gathering purposes.

21

Rod THORNTON: Asymmetric Warfare: Threat and Response in the 21st Century. Hoboken, N.I.:
Wiley; Polity Press 2007, p. 2

16

Generally, all states came to the consensus that casualties should be kept to minimum
level and that all civilised nations should comply with the reasoning of humanitarian
law to protect those who are at most jeopardised. This means that the conduct of
hostilities should respect the casualty aversion policy 22. However, the policy remains
unthinkable for non-state actors who use asymmetric methods of warfare strategically.
In order to win the war, striking against civilian population is a necessity. Non-state
armed groups can benefit from the fear it spreads among its own population as well as
the population of its adversary. The goal of state policy is to avoid any future casualties
and this situation sets a non-state actor in the position of power.
Furthermore, the non-state actor can avoid confrontation with state armed forces and
carry on targeting civilians. The armed groups are aware of the time limitations that are
posed on state armed forces and use this knowledge to their advantage. The reason is
that states cannot present lengthy conflicts as justifiable23 forever. The state will usually
fight for as long as its government has its support and usually retreat at the imminent
risk of not being re-elected. On the other hand, it is not only the state armed forces
risking its government reputation. The non-state actor too jeopardised its support by
targeting civilians, most of all its own co-citizens. That is the reason why the
asymmetric warfare is united with propaganda campaigns and the local sympathy with
non-state armed groups.

2.2

Involvement of civilians on the battlefield

Civilians have always been involved in hostilities and played various roles in armed
conflicts. The involvement varies also in distance from the battlefield. The range goes
from a worker in an ammunition factory to a private contractor who is directly involved
as sniper. As much as the humanitarian law tries to balance military necessity and
humanity, it remains questionable to what extent subjection of other than privileged
belligerents is possible. The fight does not take place between combatants only but
drags in persons who are not anymore civilians in its full meaning and yet are not
combatants either. The topic of lawful combatancy and targeting are at most relevant.

22

Maj CHARLES, K. HYDE: Casualty Aversion Implications for Policy Makers

and Senior Military Officers; Aerospace Power Journal; Summer 2000;
http://www.airpower.maxwell.af.mil/airchronicles/apj/apj00/sum00/hyde.pdf
23
Rod THORNTON: Asymmetric Warfare, p. 21-22, supra note 21

17

Throughout the development of warfare, industrial advancing forced the incorporation

of civilians into general war effort. Industrial sides with weapon production enlarged the
chance of striking populated areas. Mostly air warfare has exposed civilians to direct
attack and other consequences of hostilities. What aerial bombardment challenged in the
20th century, the information warfare is challenging now. Technological change
challenges ideas of what determines an armed attack. It further leaves an open floor to
asymmetric threats addressed to powerful states by those economically and military
subordinate.
Integration of civilians in the conduct of war takes miscellaneous forms. Before
exposing the depicted groups of unlawful combatants in following chapter, I would like
to introduce some aspects of civilian involvement in armed conflicts that are so
troublesome for identification of the civilian status. These categories do not match with
the distinction of combatants and so civilians may be provided with combatant-like
treatment if certain circumstances occur.
Firstly, there can be personnel integrated into military structure or only play a
supporting role. Civilians performing near combatant tasks are acknowledged by
humanitarian law as civilians accompanying armed forces. Both Hague Regulations and
Geneva Conventions lay down the standing of civilians employed by or accompanying
the armed forces. The assimilation of these professionals into armed forces provides
with the rights of prisoner of war status upon capture 24. In modern armies, civilians fulfil
supporting jobs such as maintenance, logistics and intelligence. Contrary to the awarded
protection, if the civilians does take part in hostilities he shall be treated as any other
unlawful combatant and loses his protection of POW status. At times were information
warfare has become a standard component of combat it would be appropriate to rethink
the notion of a civilians accompanying the armed forces. The level of integration often
brings the civilians to the frontline and the recent developments signal that they are
employable for combat functions. I shall discuss this topic further by introducing private
contractors in armed conflicts in another chapter.
Secondly, the position of civilian political leaders is to certain extent questionable when
compared to its officially elected counterparts. The nature of involvement is very
essential to establish constitution of direct participation in hostilities. It is common that
24

Geneva Convention III, Article 4(5)

18

the head of state is directly in the chain of command and bears responsibility by virtue
of his public function. As opposed to the status of a president, a civilian leader cannot
be vested a formal command responsibility and thus the nature of his involvement may
not be easily identifiable. However, when war crimes are committed by subordinates
and under customary law a civilian leader too may be held accountable. The war effort
of a civilian leader puts him in a position when many acknowledge his participation in
hostilities and often award him with the status of POW upon capture. 25 Eventually the
involvement self designates the status and not the prior status.
Thirdly, I would like to refer to civilians participating in the war effort. The todays war
as it is shown in media is a total war 26. The concept excludes a conflict solely between
parties belligerent but involves a significant number of civilians. Armed individuals or
groups on battlefield renounce a basic element of combatancy that establishes a
connection to state or a recognised party to the conflict. In the past, the separation of
civilians and combatant rejected any consideration of a semi-group of quasi-combatants
as category of participants in armed conflicts. However, now humanitarian law needs to
account for civilians taking direct part in armed conflicts and provide them with the
necessary protection without obstructing application of the principle of distinction.

3 Modalities governing the loss of protection against direct

attack
In this chapter, I want to present the various modalities governing the loss of protection
by concentrating on two points of the scope of protection. Firstly, I will present the
temporal ambit of establishing direct participation in hostilities and hence its effect on
the loss of protection against direct attack. The temporal scope varies depending on
individual participation and participation within an armed group therefore I shall
examine both separately. Secondly, I want to review the personal ambit of loss of
civilian protection within particular groups that stand outside the definition of
combatants and yet join in hostilities on voluntary basis. For that, I have chosen the
25

Colonel K.W. WATKIN: Combatants, unpriviliged belligerents and conflicts in the 21st century;
Background Paper prepared for the Informal High-Level Expert Meeting on the Reaffirmation and
Development of International Humanitarian Law, Cambridge, January 27-29, 2003;
http://hpcrresearch.org/sites/default/files/publications/Session2.pdf
26
Charles GARRAWAY: The Changing Character of the Participants in War: Civilianization of
Warfighting and the Concept of Direct Participation in Hostilities; International Law Studies Volume
87; Naval War College Newport, Rhode Island 2011; p. 178

19

most discussed-about groups of non-combatants: mercenaries, private military and

security contractors and voluntary human shields.

3.1

Temporal scope of protection and the meaning of fur such

time

The ICRC presents in its DPH Guidance the temporal scope of protection according to
provisions of Additional Protocol I.27 as well as to customary law28, as following:

Civilians lose protection against direct attack for the duration of each specific act
amounting to direct participation in hostilities, whereas members of organized armed
groups belonging to a non-State party to an armed conflict cease to be civilians, and
lose protection against direct attack, for as long as they assume their continuous
combat function.29
The temporal scope encompasses the running of acts of a hostile nature attributable to
the notion of direct participation in hostilities. Although such persons lose their
protection against direct attack, they do not cease to be civilians. The temporal character
of loss of protection is indisputable. Time, for which protection against direct attack is
lost, is a very important factor. Firstly, the meaning phrase for such time establishes
the beginning and the end of hostilities. Secondly, the phrase ascertains the legal
consequences of the pauses between acts of violence.

3.1.1

Individual participation

Civilians are suspended from the protection against direct attack for the time being
while taking part in hostilities as within the phrase unless and for such time. Thus we
can say that civilians regain protection against direct attack right after they desist from
their engagement in hostilities and lose it again by their reengagement. This treatment is
described as a revolving door of civilian protection and prevents from direct attacks
27

Additional Protocol I.; Article 51 (3)

ICRC: Customary Rule No. 6. and commentary; https://www.icrc.org/customaryihl/eng/docs/v1_rul_rule6
29
Nils MELZER: Interpretative guidance on the notion of Direct participation in hostilities under
international humanitarian law, adopted by the General Assembly of the ICRC, February 2009; p. 70;
https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf
28

20

those who do not represent a military threat. As opposed to the members of organised
armed groups whose combatant functions are continuous, civilians on the other hand
behave according to constantly changing circumstances. Hence, their behaviour is
uneasy to explain. The repeated participation of a civilian in hostilities cannot be a
reason for presuming his future conduct. The common analogy farmer by day, fighter
by night30 does not allow assumptions to behaviour of a sporadic fighter, as the concept
refers only to specific individual acts of war.31 This is based on the interpretation of
Article 51 (3), that states:
Direct participation means acts of war which by their nature or purpose are likely to
cause actual harm to the personnel and equipment of the enemy armed forces. It is only
during such participation that a civilian loses his immunity and becomes a legitimate
target.32
In practice such interpretation could rule out figures in higher position of the chain of
command structure to certain extent. The notion of direct participation is limited to
belligerent acts. For instance, actions of recruitment or planning of belligerent acts
would be difficult to determine their time frame, when they would be attributable to
direct participation. These acts relate to preparatory acts. 33 Such preparatory measures
and deployment must be of a specifically military nature and so closely linked to the
subsequent execution of a specific hostile act that they already constitute an integral part
of that act.34 However, two groups of preparatory acts must be distinguished in order to
establish their capacity to amount as direct participation. Namely, they are the
preparatory measures aiming to carry out specific hostile act and the preparatory
measures aiming to establish the general capacity to carry out unspecified hostile acts.
The latter do not qualify as direct participation.35
Furthermore, the act of direct participation does not require a temporal proximity. This
means that preparatory measures do not have to occur immediately before a specific
hostile act. The Supreme Court of Israel has expanded the interpretation of direct
participation to preparatory measures such as guiding combatants in terrain as well as
30

Michelle LESH; Draft for Routledge Handbook of the Law of Armed Conflict; Chapter 11 Loss of
Protection: Direct Participation in Hostilities, p.14; http://law.huji.ac.il/upload/Lesh_LossofProtection.pdf
31
Supra note 29, p. 71
32
Additional Protocol I.; Art.51(3)
33
Supra note 30, p. 15
34
Supra note 29, p.65-66
35
DPH Guidance, p.66

21

recruitment and planning of such activities. 36 Despite this, preparatory actions such as
money donation or sale of supplies to combatants do not fall within this interpretation,
since their nature reaches beyond possible attribution to a specific act. Neither the act
must be executed in close geographical proximity. Therefore, weapons can be collected
for a specific act in a greater distance from the place of actual attack yet this collection
would amount to direct participation. Similarly, transport of units or collecting of
intelligence constitutes direct participation when intended for a certain military
operation.37
The moment of regaining protection against attack is when the individual has physically
separated from the operation. The individual ceases his arms and resumes civilian
activities distinct from the previous military operation. 38 The DPH Guidance describes
the theory of revolving door as an inherent result of treaty provisions and allows a
person directly participating in hostilities more than once to revert to a civilian status
between hostile acts. However this view is being criticised for lack of consideration of
the persistent civilian participator.39 I agree with the opinion of professor Dinstein, who
claims that a protection against direct attack should not be granted if a civilian conducts
hostile activities on a steadily recurrent basis with brief pauses. 40 Meaning that an
individual civilian persistent fighter loses protection and remains targetable
irrespectively of the nature of activity he is engaging in.
The time period of direct participation should not be understood too narrowly. For a
narrow interpretation might be impractical for armed forces and consequently ignored.
One must not forget that the normative purpose is to protect victims of armed conflicts.
The interpretation should therefore be favourable to state armies and take into account
what is happening on current battlefields. The objective is to permit targeting of those
who participate on a persistent or a regular basis in the conflict.41

36

Supreme Court (sitting as High Court of Justice), The Public Committee against Torture et al. v the
Government of Isreal et. al (HCJ 769/02), 2006; p.33
37
ibid.
38
DPH Guidance, p. 67
39
Bill BOOTHBY; And for Such Time As: The Time Dimension to Direct Participation in Hostilities;
42nd New York University Journal of International Law and Politics (2010); p.761
40
Yoram DINSTEIN; The Conduct of Hostilities under the law of International Armed Conflict;2nd
edition, Cambridge University Press 2010;p 190
41
Bill BOOTHBY; And for Such Time As: The Time Dimension to Direct Participation in Hostilities;
42nd New York University Journal of International Law and Politics (2010); p.768

22

On the other hand, it can be difficult to determine the point when an individual no
longer intends to engage in hostilities. The U.S. claims that if a repeated participation
takes place, an act of affirmative disengagement or extended non-participation from
hostilities is in place to restore civilian protection against direct attack. 42 There might
occur some misunderstanding as to concurrent status in case of previously attacked noncombatants. However, once a civilian exposes himself to the risk of direct attack by his
participation and carries out hostile act repeatedly, the adverse party might miss his
disengagement from hostilities and misunderstand his status. 43 Civilian takes a risk upon
him by his persistent participation and shall bear this risk of misunderstanding by his
counterparty after discontinuing of hostile activities.
What is more, this broad interpretation might seem ignorant to the presumption of
civilian status in cases of doubt. In case of doubt whether a civilian is directly
participating or not an attack against such person must not be allowed. In spite of this,
misunderstanding is not a case of doubt but a mistake of fact. 44 If the adversary attacker
has no information of affirmative disengagement nor it can presume extended nonparticipation, it has no reason to doubt continuance of loss of protection. Although
humanitarian law requires that participants to armed conflicts should take precautions in
order to prevent mistakes, it is not prohibited to make reasonable mistakes in the
battlefield.
Lastly, from the military perspective it might not be possible to interpret the temporal
scope of protection according to revolving door theory. Civilian participation in
hostilities is typical for asymmetric warfare and individual surprise attack is a usual
method of combat. An attack might occur long after insurgents have departed the area.
The most effective way for an adversary is to stop an individual from carrying on
participation in hostilities. Following of sufficient intelligence insurgents can be located
in their hiding place.

45

An attacker must take all feasible steps to verify confirm that

targets are not protected civilians.46 Eventually, a balance between military necessity
and principle of humanity must be met.

42

Gherebi v. Obama, 609 F.Supp.2d 43 (D.D.C.2009), Memorandum Opinon

Bill BOOTHBY; supra note 39., p. 760
44
Michael N. Schmitt; The Interpretative Guidance on the Notion of Direct Participation in Hostilities: A
Critical Analysis; Harvard national Security Journal/Vol.1; May 5th, 2010; p. 39
45
ibid. (land mine attacks); p. 39
46
Art.57(2)(a)(i) of Additional Protocol I. to GC
43

23

3.1.2

Participation based upon membership in an armed group

The time frame for loss of civilian protection can be also bound by civilian membership
in a non-State armed group. Members of organized armed groups may be attacked any
time according to the virtue of lasting membership. 47 Hence the membership approach
considers the function of a member that actuates the loss of protection. Accordingly to
LOAC there are three cumulative elements of an organized armed group (OAG):

sufficient degree of military organisation,

belonging to a party to the conflict, and

continuous combat function (CCF)48.

Regarding the temporal scope of loss of protection, I will mainly discuss the criterion of
continuous combat function. Through assessment of function with an OAG a person can
be determined as targetable. Pursuant to the DPH Guidance, continuous combat
function reflects direct participation. Therefore, members to be engaged in action
attributable to direct participation can be subjected to attack. Their membership and
function makes them a lawful target and so, they can be attacked not only at times of
actual direct participation. This analogy quite resembles the status of state army forces
members. On the other hand, members without such function are still considered
civilians and lose their protection only for such time as they engage in hostilities.
The element of CCF is applicable for member of OAGs in both international and noninternational armed conflicts. It can be indicated either by uniforms or distinctive signs
or by behaviour. The latter is far more useful for identification since members of nonState armed groups do not usually distinct themselves with uniforms or emblems.
Conclusive behaviour is observed in repeated direct participation in support of a certain
OAG, thus indicates a CCF generally rather than a temporary participation. However,
membership is attributable also by other means. For example, through intelligence it is
possible to gain lists of members or locate insurgents in isolated camps. 49 Membership
determined in such way is irrefutable but leaves a place for uncertainty towards
establishing CCF.

47

DPH Guidance, p.72

Michelle LESH; Draft for Routledge Handbook of the Law of Armed Conflict; Chapter 11 Loss of
Protection: Direct Participation in Hostilities, p.21
49
Michael N. Schmitt; above n 18
48

24

Members of OAGs are treated as lawful combatants only when it comes to targeting
rules. However, they do not cease to be civilians and cannot be treated as combatants
upon capture by enemy forces because they do not fulfil the criteria of Geneva
Conventions50. Thus we cannot consider them as combatants but we can regard them as
fighters51. With this approach we are able to perceive OAGs more likely as an equal side
to an armed conflict. It should be noted, that members of irregular forces take a position
of a targetable civilian upon beginning of his continuous combat function de facto.
In my opinion, contrary to that of DPH Guidance, members of irregular non-State
armed forces shall have more similar standing as those of state armies. The performance
of military operations demands a certain level of command in a group and organisation
regardless of a belonging to a State or a non-State party. 52 It is not only members of
State armies who perform logistics necessary to conduct of military operations and
gathering of intelligence. Yet the position of members of non-State party who conduct
the same job is different. Thus, not only fighters of irregular belligerents should be
targetable at all times but also its members with any combat function.
Considering the nature of modern warfare, namely in non-international conflicts, there
should not be space left for those members of irregular forces who misuse their unclear
position and apply the methods of guerrilla warfare. Functional membership could
entail combat function of broader sense: combat, combat support, and combat service
support functions, carrying arms openly, exercising command over the armed group,
carrying out planning related to the conduct of hostilities, or other activities indicative
of membership in an armed group.53 This approach offers a challenging application
upon members of non-State belligerents since their account is more likely to fluctuate
and its structure of command to be less formal. 54 This brings a bigger uncertainty
towards establishment of exact time frame of loss of civilian protection conditional to
membership in OAGs.

50

Article 4 of Geneva Convention III.

ICTY: Blaki Trial Chamber Judgments; Case no IT-98-029-T; 3rd March 2000; para 192
52
Watkin, K.W., Combatants, Unprivileged Belligerents and Conflicts in the 21st Century,Background
Paper prepared for the Expert Meeting on the Reaffirmation and Development of International
Humanitarian Law, Cambridge, January 2003
53
Ibid.
54
Nils MELZER: Interpretative guidance on the notion of Direct participation in hostilities under
international humanitarian law, adopted by the General Assembly of the ICRC, February 2009;
https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf
51

25

Conclusively, I do not want to propose that all members of irregular OAGs shall lose
their civilian protection merely depending on their membership. But from military
perspective it would be preferred if the term combat function was understood in
broader scope.

3.2

Personal scope

3.2.1

Mercenaries

Mercenaries introduce a whole category of unlawful combatants and their right to

protection is to some extent restricted. Although a mercenary engages in hostilities, he is
neither a national nor a party to the conflict. The humanitarian law subjects mercenaries
to particular attention and accords little protection to this group. The law denies
mercenaries the status of a combatant as well as the prisoner of war status. At the same
time, the legal provisions do not treat them as unambiguous civilians either.
Mercenaries are recognised as special actors of war in their own right.55 Bearing in mind
the concern of humanitarian law to provide protection in times of war to all its actors, at
least the minimal protection is awardable to mercenaries. The ad minima protection 56
provides the basic protection established by customary law and therefore affordable in
international as well as non-international armed conflicts.
As opposed to their historic predecessors who were hired as soldiers before the
emergence of national regular armed forces, modern mercenaries reached their peak
after the creation of new States in the 1960, mostly on the African continent. They have
been hired to fight national liberalisation movements often advancing into civil wars
55
56

Dieter FLECK and Michael BOTHE: The Handbook of Humanitarian law in armed conflict
Aniciee Van ENGELAND: Civilian or Combatant? A challenge for the 21st century, p. 122

26

and coups dEtat. The law did not operate with a general black letter definition of a
mercenary until the creation of the Additional Protocols to the Geneva Conventions.
However, the former Hague Conventions already place responsibility on neutral states
to ensure that any military corps or combatants are not to be formed nor recruiting
agencies opened on their territory57. Individuals acting on behalf of one belligerent party
to the conflict by taking up arms as mercenaries cannot avail themselves of their
neutrality58, accordingly to Hague law. At the same time, they are entitled to the same
amount of protection as the nationals of state parties to the conflict. Thus, a mercenary
has been afforded the protection of a civilian taking direct part in hostilities.
The First Additional Protocol for the first time deals with mercenaries specifically in its
Article 47. This class of persons is not similar to the traditional classes of unlawful
combatants since they are not linked to the principle of distinction between combatants
and civilians59 in the Article. Although the Additional Protocol I. is applicable only in
international armed conflicts and binds few states, the Article has been observed to
reflect custom60 by the ICRC and therefore may be recognised as a legal instrument
binding all at the time of war.
The Article 47 defines a mercenary as a person who:
a. is specially recruited locally or abroad in order to fight in an armed conflict;
b. does, in fact, take direct part in the hostilities;
c. is motivated to take part in the hostilities essentially by the desire for private
gain and, in fact, is promised, by or on behalf of a Party to the conflict, material
compensation substantially in excess of that promised or paid to combatants of
similar ranks and functions in the armed forces of that Party;
d. is neither a national of a Party to the conflict nor a resident of territory
controlled by a Party to the conflict;
e. is not a member of the armed forces of Party to the conflict; and
f. has not been sent by a State which is not a Party to the conflict on official duty
as a member of its armed forces.61

57

Hague Convention (V), Article 4 and 5

Hague Convention (V), Article 17
59
Supra note 10
60
ICRC: Customary Rule No.108
61
Additional Protocol I, Article 1(2)
58

27

The definition itself is quite restrictive and provides a narrow scope for individual
application since all six of the listed conditions are cumulative. Such conditions makes
the definition almost inapplicable in reality since it is rare, perhaps impossible, to come
across a person meeting all the criteria. Nevertheless, there is a criterion being depicted
as the most important one and that of their desire for private gain. It is considered that
the feature making mercenaries distinct from any other group of unlawful combatants is
their motivation. This linchpin alone is thought to be the force behind joining the
hostilities62.
The motivation alone does not make this group any different from private contractors,
who supposedly join combat also for financial compensation. In many sources the terms
of a mercenary and that of a private contractor interchange and are used as synonyms. I
believe the correct use of these legal terms should remain separated, since private
contractors could not practically meet all the listed conditions. Firstly, they often are the
nationals of the belligerent party to the conflict and most of them are hired for noncombat functions. Former members of armed forces often work for well-sophisticated
private military companies. Secondly, they provide security services under a contract.
Hence, they do not fulfil the condition of being recruited for a specific armed conflict as
such. A long-term employment leaves some place for consideration about special
recruitment63. Freelance contractors would more fit the mercenary criteria, since they
can be hired for specific jobs. Eventually, it can be argued besides the time ambit of
involvement whether the corporate veil as such provides a detour from defining them as
mercenaries.
On the other hand, when a private military contractor is under a long-term contract with
a state army, it does not mean that it is incorporated in armed forces. A prolonged
involvement does not necessarily rule out its special recruitment. The wording
specially recruited was initially meant to disqualify members of volunteer military
corps such as the French Foreign Legions or the Gurkhas in the British Army to be
defined as mercenaries and not private contractors, who were never entailed to be
incorporated into state armed forces.

62

Yoram DINSTEIN; The Conduct of Hostilities under the law of International Armed Conflict;2nd
edition, Cambridge University Press 2010;p. 57
63
Walker, Clive; Whyte, Dave, Contracting out of War? Private Military Companies,Law and
Regulation in the United Kingdom, International and Comparative Law Quarterly, July 2005

28

Furthermore, the provision states that a mercenary shall be promised a compensation

that is substantially in excess in comparison with that of a member of armed forces of
the same rank. The definition itself attaches motive to a legal status rather than only
define what actions would attribute a person to fall within this definition. Although a
motivation as a psychological element is complex and hard to evaluate, we connect the
motive with material compensation and greed rather than with any other kind of interest
behind the purport of joining hostilities. The interest driving a civilian to take up arms
can be also religious or ideological 64. Any fighting civilian could claim that his
motivation is based purely on his sympathy to the belligerent party. For instance, the
unlawful combatants in Bosnia volunteered to fight for a moral or religious reason.
Some of the ex-military from Britain came to the country in order to engage in fighting
and help the locals to fight their cause.65 Further, Mujahedin soldiers from abroad were
driven as well by their belief to come to Bosnia and take up arms against those who
would supress the peoples religious rights. What is interesting is that they were
compensated with houses66 at the end of war.
Another important feature of a mercenary is his nationality and that of a different state
than of any belligerent party to the conflict. The threshold of nationality and residency
is much easier to identify. Private contractors find employment all over the world and
thus, it is less difficult to meet this condition. A notorious example are South African
mercenaries fighting in Sierra Leone from the private military company Executive
Outcomes. The military president of Sierra Leone bought the restoration of law in the
country with millions of dollars and diamond mining concessions 67. There is also a more
current examples of a company Blackwater hired by the United States. During the
period when the US governed Iraq, private armed guards were taking active part in
hostilities68.
As difficult as it might seem to find a person who meets the definition of a mercenary,
his protection is somewhat trussed within the denial of both protective statuses usually
awarded to combatants leaving him with the legal protection enshrined in the
fundamental guarantees of humanitarian law. To assume that mercenaries enjoy no
64

SINGER Singer, Peter W., War, Profits, and the Vacuum of Law: Privatized Military Firms and
International Law, Columbia Journal of Transnational Law, January 2004
65
http://www.independent.co.uk/news/britons-flock-to-fight-in-bosnia-thousands-of-exsoldiers-anduntrained-idiots-and-psychopaths-said-to-be-serving-as-mercenaries-with-all-three-sides-1471991.html
66
Aniciee Van ENGELAND: Civilian or Combatant? A challenge for the 21st century, p. 123
67
http://www.crimesofwar.org/a-z-guide/mercenaries/
68
http://www.ohchr.org/EN/Issues/Mercenaries/WGMercenaries/Pages/WGMercenariesIndex.aspx

29

protection under humanitarian law is misguiding. The group of mercenaries is being

specially isolated from the wide group of unlawful combatants and left with the
protection awardable to every non-combatant who takes direct part in hostilities. Their
rights to protection are contained in the same document that defines them, Additional
Protocol I. The indiscriminate Article 75 deals with generally with rights affordable to
all persons in an armed conflict. The states may have the full right to prosecute those
who also in time of war kill without the combatant status, yet they must treat them
humanly. Murder, torture, corporal punishment or outrages upon personal dignity,
collective punishment and threats to commit any of the forgoing are prohibited.69
Modern mercenaries are often seen as volunteers devoting themselves to fight either for
financial security or to higher morals worth risking their lives, such as jihad. The use of
civilian fighters raises questions not only whom the fighting parties are comprised of
but also whether they are actual combatants who can be lawfully attacked. Defining
their status, either as combatants or civilians, may often been a political decision.
However, widening the scope of application cannot happen under the risk of blurring
the principle of distinction that is so crucial for affording protection against attack.
Local instabilities require international military action. The frequent use of private
military companies is inevitable since the risk of lives of servicemen is widely
unpopular with most of states governments. The changing face of war leads to multitude
of actors as opposed to traditional duel of states. Civil wars are becoming more
international than ever. The involvement of state coalitions creates a demand of private
actors on the battlefield and their activity often reaches the definition of mercenaries.
The danger of their involvement lies in bringing more uncertainty into identifying
combatants and distinguishing them from civilians. Suggestions to overcome the current
definition might be in place in order to furnish clearer distinction between those who are
to be protected at all times and those whose combat function denies them protection
against a direct attack. In my opinion, if a change of status leads to greater motivation to
respect humanitarian law, the possibility should not be ignored. The conventional
definition is likely to be subjected to revision as a reaction to the boom of private
military industry. Eventually, if a change on restriction of mercenary activity occurs, it
shall be designed in keeping the fundamental protection affordable untouched as well as
the right to fair trial in case of prosecution of mercenary acts.
69

Article 75 (2), Additional Protocol II.

30

3.2.2

Private military contractors

Recent developments over the last two decades show an enormous increase of civilian
factor ever more involved in war practice. The so called privatisation of war has
emerged merely from practical interest, however does not stay disclosed from
discussions of legal professionals. The necessity of practical guidance on legal position
of private military companies and security companies (PMSCs) has been brought to the
spotlight by its large involvement in military operations in Iraq, also known as
Operation Iraqi Freedom (OIF), established by the invasion of U.S. troops to Iraq in
2003.70 In the recourse of this war, the qualitative use of private actors has become more
visible. Civilians no longer perform only logistical support but directly take part in
hostilities. Their accompanying role is now more crucial to conducting military
operations traditionally performed by national armed forces. In this chapter, I intent to
discuss the possible legal challenges created by new tasks of private contractors as well
as their legal status under LOAC.
First of all, a fundamental distinction needs to be made between members of the armed
forces and civilians, since the constraint of this distinction is not restricted to limitation
of civilian casualties, but also illustrates the aspect of traditional international relations:
members of the army are organs of state and, when captured, are expected to benefit
from this official status71. Meaning they enjoy the protection that excludes their
subjecting to prosecution by the adversary state upon capture. Hence, they cannot be
tried for acts usually associated with combatants taking part in hostilities, such as killing
and inflicting grievous bodily harm72. This norm is being recognised from early on as
the LOAC was formed:
70

Michal N. SCHMITT; Humanitarian Law and Direct Participation in Hostilities by Private Contractors
or Civilian Employees; submitted as an expert paper to ICRC Second Expert Meeting on the Notion of
Direct Participation in Hostilities in Hague, 25/25 October 2004
71
Louise DOSWALD-BECK; Chapter 7 - Private military companies under international humanitarian
law; from MERCENARIES TO MARKETS: The Rise and Regulation of Private Military Companies
edited by Simon CHESTERMAN and Chia LEHNARDT; Oxford University Press 2007; ISBN-13: 9780199563890
72
Yoram DINSTEIN; The Conduct of Hostilities under the law of International Armed Conflict;2nd
edition, Cambridge University Press 2010; ISBN: 978-0-521-12131-6; page 33

31

So soon as a man is armed by a sovereign government and takes the soldiers oath of
fidelity, he is a belligerent; his killing, wounding or other warlike acts are not
individual crimes or offenses.73
Generally, the prisoner of war status and the protection provided is not applicable to
civilians. The concept of particular protection is limited to official state army members.
However the entitlement of POW status is fundamentally restricted to lawful
combatants, this is not the fact at all circumstances. The Third Geneva Convention
includes civilian categories that enjoy this very status. The provisions assimilate
protection of certain persons associated with the army. The standing of POW is
attributable to civilians only when they are employed by or accompanying the armed
forces74. Noticeably, when a civilian is employed by or accompanies the armed he does
not become a combatant and further deemed as a civilian in its full sense.
Protection of private contractors and civilian employees
PMCs are more likely to be considered civilians than combatants in the eyes of LOAC.
They can be subjected to a lawful target in case they directly take part in hostilities. 75
The ICRC Interpretative Guidance deemed the protection as following:
Private contractors and employees of a party to an armed conflict who are civilians
are entitled to protection against direct attack unless and for such time as they take a
direct part in hostilities. Their activities or location may, however, expose them to an
increased risk of incidental death or injury even if they do not take a direct part in
hostilities.76
In this context, the protection of private contractors and civilian employees of
belligerent parties depend on the same criteria as would apply to any other civilian.
Therefore, they are not entitled to take direct part in hostilities, but are afforded the
immunity from direct attack. Nevertheless, their special role requires careful
determinations of their legal position when direct participation occurs. Above all,
private contractors relate to army personnel and we have to bear in mind their
73

Article 57, Lieber Code

Article 4(A)(4)-(5) of Geneva Convention III
75
Art.51(3) of Additional Protocol I. to GC (this rule is also considered to be customary)
76
Niels MELZER: Interpretative Guidance on the Notion of Direct Participation in Hostilities under
International law; adopted by the Assembly of the ICRC; published by ICRC in May 2009; part 1.A (III)
Private contractors and civilian employees
74

32

geographic and organisational closeness to the armed forces during the ongoing
hostilities.77
Denial of entitlement to protection under GC III. granted to combatants leaves PMCSs
with the protection attributable to unlawful combatants. In particular humane treatment,
non-discrimination, prohibition of torture awarded in GC IV78. Due to possible
internment for direct participation, a private contractor that becomes a detainee has also
the rights to fair trial. Although GC IV Article 4 is to be interpreted in broad terms,
some persons are excluded from status as protected persons under this convention, in
particular nationals of the power in whose hands they find themselves. On basis, that
GC IV applies to unlawful combatants who satisfy the Article 4 requirement of
nationality. However, those who are excluded from the protection of the convention are
not left unprotected. The minimum legal guarantees in customary international law are
recognised in Common Article 3 and AP I Article 75 and hence provide legal protection
upon capture.

Direct participation of private contractors

Private contractors like other civilians are protected against direct attacks unless and
for such time as they take a direct part in the hostilities 79. The private contractors might
be easily mistaken when they openly carry weapons the simple fact of carrying a
weapon does not imply per se that the bearer takes a direct part in the hostilities. 80 The
use of weapons may be linked to security against criminal activity. There might not be
any problem if contractors hired for security carry handguns. It may well happen that
can provide the services in a country, which is involved in an armed conflict. Although,
it would look suspicious if they would carry submachine guns. Interestingly enough, the
term of security services does provide a neat cover name for firms that would want to
exclude themselves from mercenaries.
Direct participation of contractors becomes questionable when they are involved in
purely military activities, albeit logistical. Transportation of weapons and other military
77

ibid.
GC IV., Article 4
79
Article 51 (3) of Protocol I for international armed conflicts, and Article 13 (3) of additional Protocol II
for non-international armed conflicts
80
Involvement of Private Contractors in Armed Conflict: Implications under International Humanitarian
Law
78

33

commodities, intelligence, strategic planning or procurement of arms, may loosen the

protection against direct attack afforded to civilians. Regulations of states may vary
from each other on the point direct participation. For instance, the United States Naval
Handbook confirms that activities regarding military intelligence are classified as direct
participation in hostilities as following: Collecting information or working for the
enemys intelligence network81.
When contractors provide security to civilian objects like schools, hospitals, and private
housing buildings, their position in the eyes of law is simple. In the situation of an
attack on such object, force used by security contractors would be based on the reason
of self-defence and hence they would not lose their civilian status and legal protection
against attack. However, if contractors provide security to military objects their position
as civilians fades. These private security guards could not be considered as civilians
since they are usually heavily armed and ready to take direct part in hostilities. Their
right to protection is not straightaway clear and they remain operating in a grey area82
of blending quasi combatants, such as mercenaries, paramilitary non-state actors or
irregular fighters.
The U.S. Air force Commanders Handbook subjects persons, acting as a guard for
military activity, to attack.83 The loss of protection is, according to the Handbook, bound
by the performance of safeguarding. Thus once the personnel of a private company goes
off-duty his protection against direct attack is restored. However, persons whose job is
security of military sites cannot be compared with civilians working in possible military
objects, such as airports or power plants. When targets fulfil the criteria of lawful
military objectives84 their targeting is legal also at the time of presence of civilians albeit
the attack constitutes killing of civilian life. For such scenario, a mandatory deliberation
of possible collateral damage would have to be calculated and tested by the principle of
proportionality before launching any attack. According to the rules on the conduct and
methods of warfare, incidental loss of civilian life or injury to civilians would have to
be proportionate in relation to the military advantage anticipated for the act deemed
legal.85
81

United States Naval handbook (1995), Par. 11.3

Private Military Contractors and International Law: An Introduction Francesco Francioni
83
Commander's Handbook on the Law of Armed Conflict, Air Force Pamphlet, Department of the Air
Force, United States, AFP 110-34, 25 July 1980, p. 2-2
84
Additional Protocol I. Article 52(2)
85
Additiona Protocol I. Article 51 (5)
82

34

Membership and Specific Act as criteria for the loss of protection

There are two approaches to define the loss of protection in case of PMSCs with
different impact on the loss of protection. Firstly, the approach concentrates on the
membership to private company, which is quite unrealistic. It would be unfair to treat all
employees in the same way. The membership approach might be more reasonable when
applied on armed opposition groups, however very inadequate in case of military and
security ventures. The condition of membership may prove to be helpful for the
purposes of distinction once they directly participate in hostilities.
Then, there is the Specific Act approach that is favourable to wording of humanitarian
law. The loss of protection is bound by the temporal ambit of a hostile act. Qualification
of direct participation according to a specific hostile act tends to provide more often
protection since it treats contractors as civilians most of the time. Although a contract
between a company and a civilian is not always concluded for one specific act, the more
welcome approach provides the contractors with protection in transition during the
times of disengagement from hostilities.
Lastly, in order to avoid the possible discriminatory character of the membership
approach and the revolving-door effect of participation in case of the specific act
approach, a third options presents itself, and that of the functional approach. It is a
compromise of conditioning the function for establishing direct participation in
hostilities.86 Hence, the direct participation is constituted by fighting function and only
its abandonment restores the protection against direct attack of the contractor. The
function has to require the contractor to DPH on regular basis 87. The benefit of
determining combat function would simplify practical identification of direct
participation not only of private contractors but also of civilian militants.
In conclusion, contractors taking direct part in hostilities without the combatant
entitlement qualify as unlawful combatants. They participation in combat makes them
liable to direct attack for such time they fulfil their combat function. The attacking
adversary should presume protection against direct attack in case of doubt. Provided,
that a contractor is injured or captured he shall be awarded protection under the Fourth

86
87

Supra note 25
Ibid.

35

Geneva Convention and if he does not fulfil the necessary criteria the fundamental and
customary protection are guaranteed to the extent applicable.

3.2.3

Voluntary human shields

During war individuals risk their lives in order to protect others or objects that have
great value for them. For instance, people in Yugoslavia blocked bridges of Belgrade
with the intention of preventing bombing by NATO forces in Kosovo, in 1999. 88 Such
88

Jaen Francois QUEGUINER: Precautions under the law governing the conduct of hostilities;
International Review of the Red Cross, Volume 88, No. 864, December 2006; p. 815

36

actions ever more blur the lines between those who fight and those who shall be
safeguarded from the atrocities of war. Thus the danger of attacks against civilians is
becoming inevitably higher. Voluntary human shields present a challenge to lawful
targeting on the battlefield.
The tactic of voluntary human shields has been frequently used in conflicts that can be
described as asymmetric. There is a remarkable difference between the sophistication of
weaponry and the availability of technical resources of the opposite belligerent parties
to the conflict.89 A weaker party tends to outweigh the imbalance with vicious and
perfidious methods of warfare. However, such action should not be considered just even
if a discrepancy between the adversaries is considerable.
Voluntary human shields intentionally protect a military objective against an attack.
Their passive position at shielding a lawful target is sometimes disputable. Whether
such act should be considered as direct participation in hostilities or not is a prerequisite
for enjoying protection against direct attack. The variable interpretation of direct
participation may create uncertainty towards voluntary human shields, since they do not
literally take up arms against their enemy but rather misuse their civilian status for the
military advantage of their favourite. The decision to encompass this behaviour within
the notion of direct participation decides the whole matter of deprivation of civilian
protection against direct attack.
Direct participation is perceived through hostile acts, which do not have to be
necessarily defined by the use of weapons. Attacks as such comprise offensive and
defensive deeds.90 Thus, we could deduce that also unarmed civilians who intentionally
shield military objectives also directly participate in hostilities. The Israeli Supreme
Court has supported the opinion of direct participation and held that civilians who act as
human shields of they own free will, out of support for the terrorist organisation, they
should be seen as persons taking direct part in hostilities 91. So indiscriminately of
wearing weapons or conducting acts capable of exposing the enemy to an immediate
threat, a civilian human shield is considered as directly participating and deprived of his
immunity against direct attack. Merely his wilful position directly contributes to the
89

Stephanie BOUCHE de BELLE: Chained to Cannons or Wearing Targets on their T-shirts: Human
shields in international humanitarian law; International Review of the Red Cross; Volume 90 No.872;
December 2008, p. 885
90
AP I.; Article 49.
91
HCJ 769/02, above

37

perpetration of hostilities by the belligerents against each other. The attempt to utilise
civilian status to enrich the advantage of one party to the conflict itself is reprehensible.
By safeguarding weapons systems, command and control facilities, and infrastructure a
civilian can be denied his protection.92 However, this opinion is not shared by all.
The war in Iraq has presented a category of voluntary human shields who came before
the outbreak of hostilities in 2003. The pacifists have taken up positions on
infrastructure and military objectives in order to prevent the conflict as such, not for the
advantage of one side alone. The Human Rights Watch claimed in this case that such
participation is of indirect nature and does not contribute to the war capability of a
state93. According to this view, their immunity from direct attack should not have been
suspended at that time. Although many volunteers left the country before the actual
fighting began.
Eventually, whether voluntary human shields are regarded as directly participating or
not the military objective remains the same and that is the destruction of the shielded
object not the shielding civilian himself. There is no point directing an attack against a
human shield additionally to a military object. It all comes to the point of whether the
person acting as a human shield directly participates in combat.
I believe that the presence of a civilian in front of a lawful target presumes the ongoing
immunity. Otherwise, such act would be pointless. Therefore, it is an obligation of the
adversary to apply the principle of proportionality when targeting a shielded object. The
commander of the opposite party must take into account the voluntary nature of
individuals behaviour. The result of such behaviour is the civilians tacit exposure to
attack and his conciliation with the risk of rendering himself casualty.
The law addressing human shields
The Geneva Convention on Protection of Civilians in Time of War articulates that the
presence of a protected person may not be used to render certain points or areas immune
from military operations94 and the subsequent First Additional Protocol widened the
scope of application with using the term civilian population. The Article is held to
92

Richard PARRISH: The International Legal Status of Voluntary Human Shields; presented at
International Studies Association, Montreal, Canada; 17th March 2004; p. 9
93
Human Rights Watch: International Humanitarian Law Issues in a potential War in Iraq; 20 th February
2003
94
Geneva convention IV., Article 28

38

reflect customary law applicable to both international and non-international armed

conflicts, and stipulates explicitly that:
The presence or movements of the civilian population or individual civilians shall not
be used to render certain points or areas immune from military operations, in particular
in attempts to shield military objectives from attacks or to shield, favour or impede
military operations. The Parties to the conflict shall not direct the movement of the
civilian population or individual civilians in order to attempt to shield military
objectives from attacks or to shield military operations.95
The norm matches the involuntary nature of human shielding and protects civilians that
are forced to shield military objects. Such action could be observed in the actions of the
former president of Iraq, Saddam Hussein, who in 1997 coerced people to create a
shield against unjust aggression. Fearing the coalition forces entering the country,
Hussein proclaimed that the Iraqi citizens voluntarily gathered near potential targets. 96
The so-called volunteers shielded factories and installations because they were aware of
painful consequences if they would stand by their dictator. Individuals were compelled
to shield factories and other installations yet were under the legal protection against
direct attack. The ICRC interprets the in favour of protecting civilians and does not
consider them as directly participating in hostilities.
The existing legal norms provide protection to human shields assuming that they all are
constrained by a superior force, such as state or non-state armed groups that use them
for realisation of their policy. The wording of the First Additional Protocol ascribes the
accountability only to the coercive actors and excludes voluntary operations of
individuals. When considering voluntary human shields, they de facto lose their
protection staying close to or directly in a military target even if they would be
considered, from the legal point of view, to maintain their civilian protection. Either the
actor of shielding as well as the force who directed the actions should subjected to
scrutiny.
Employment of human shields is a war crime, also classified by the Rome Statute of the
ICC97 and it remains questionable whether a voluntary human shield is committing this
95

Additional Protocol I., Article 51(7)

DR. NADA AL-DUAIJ: The Volunteer Human Shields in International Humanitarian Law, p. 128
97
Rome Statute of the International Criminal Court, Article 8(2)(b)(xxiii)
96

39

crime too. According to the definition of human shielding as a crime, we may say that
also if performed in voluntary fashion most of the element criteria are met. The
elements of the crime of using protected persons for shielding follow as:
1) The perpetrator moved or otherwise took advantage of the location of one or
more civilians or other persons protected under the international law of armed
conflict.
2) The perpetrator intended to shield a military objective from attack or shield,
favour or impede military operations.
3) The conduct took place in the context of and was associated with an
international armed conflict.
4) The perpetrator was aware of factual circumstances that established the
existence of an armed conflict.

As we can observe, voluntary human shields could easily fulfil the conditions except the
first one, which describes the use of shields and does not refer to shields as such. The
existing law narrows the focus on international armed conflicts with state actors as
acting in the position of the belligerent party to the conflict.

It is apparent that clear reference to voluntary human shields has not been made in
international law, yet we might see the reach out of the former contemplation of drafters
in practice. After all, the law should be operated with accordingly to the evolving
nature of warfare98. Hence, the status of voluntary human ought to be discussed by
legal bodies.

The surrounding of Ramallah in 2003 is one of many examples of volunteer shielding.

Palestinian civilians encircled Yasser Arafats headquarters to prevent an attack by
Israeli forces.99 Likewise in 2006, Palestinian women were in invited to a mosque where
Hamas militants sought shelter and protection from Israeli security forces. The Hamas
fighters then could leave the mosque accompanied by female volunteers and masked
with womens clothes. This behaviour of the opposition combatants lets Israel to
struggle on how to fight volunteer human shields. Since it is not completely plausible to
treat Hamas as a power with constant ability to control its command over Palestinian
98

DR. NADA AL-DUAIJ: The Volunteer Human Shields in International Humanitarian Law, p. 120
Ibid, p.125

99

40

people, we may consider the women shielding targetable objects as volunteers. The
level of intervention in this case made Israel to decide to treat them as persons directly
participating in hostilities without the protection against attack during the time of
shielding. The Supreme Court of Israel claimed about human shields in its judgment in
case of Targeted Killings that:

if they are doing so because they were forced to do so by terrorists, those innocent
civilians are not to be seen as taking a direct part in the hostilities. They themselves are
victims of terrorism. However, if they do so of their own free will, out of support for the
terrorist organization, they should be seen as persons taking a direct part in the
hostilities100.

However, the interpretation by the ICRC differs from the standing of Israel and its
courts. The ICRC states that there is some margin of judgement. The restriction of direct
participation to military operations and combat is too narrow, while widening of the
concept to all acts of war effort too broad. Thus in current armed conflicts civilians do
take part in hostilities, albeit this participation is indirect. 101 The combatant-like
treatment then only embraces those who would need to be in reach of direct chain of
command or accountability for their action.

The missing link of voluntary human shield in humanitarian law polarises the
interpretations in direct and indirect participation approach. Actions of human shields
might be considered as direct participation, since they hinder the adversary from attack
from the legal point of view. However, a group of people is blocking a road is no real
barrio for armed forces and their machinery. For instance, civilians shielding a military
target do not constitute a real impediment to airstrikes but the attacker will rest cease its
military operation in fear of breaching the law.

The ambiguities in civilian protection

The interpretation of legal scholars is not united in the point of direct participation of
voluntary human shields. The approach of the ICRC, the Human Rights Watch and
many professionals tends to favour the maintenance of civilian status and the
100
101

HCJ 769/02 para 36, above

DPH Guidance, above

41

undisturbed right to protection against direct attack. Their analogy stems from the denial
of the fact that voluntary human shields actively pose a threat or cause harm to the
adversary. The presence of civilians deliberately creating an obstacle to enemy forces
will not always suffice in rendering the attack itself. Even though their the law might
stand on their side the military necessity is weighs out the loss of individual lives. A
more approachable employment of this interpretation would be possible if there is a
tolerable application of principle of distinction. Civilians would anyway de facto lose
their protection since they find themselves close to military targets.

On the other hand, the interpretation could also incline to the other direction when
action of voluntary human shields are considered to constitute direct participation. 102
The purport is their will to serve the military interest of one belligerent party to the
conflict. The aim of human shields establishes aid to the enemy and thus is targetable.
However, a temporal ambit must be considered as well and the loss of protection apply
only to the duration of shielding action. The time limitation offers an advantage of
interchanging between statuses of a civilians direct participant and a civilian in its
proper sense. To the disadvantage of the state-actors in the conflict, such common
shifting of faces erodes the concept of distinction.

The gap left in the law drives opponents of human shielding tactic to exclusion of
directly participating civilians from civilians. Meanwhile, they do not become
combatants, their standing furnishes them with referral to subcategories of unlawful
combatants. Then, the act of unprivileged combatancy can be prosecuted by local
judicial bodies. The action undertaken by civilians may be granted a definition of a war
crime or treason. The ambiguity of the status exposes human shields to loosening of
civilian protection and gives space to constitution of civilian classes during war.

Furthermore, voluntary human shields step out from other non-combatants as

mercenaries, guerrilla fighters or private contractors. The dispensation from others lies
in alternative nature of negative and nonviolent participation in hostilities. In an armed
conflict, shielding is an obstacle for direct attack but as a method of political
participation it might be of great potential. Voluntary human shields try to recourse the
passive position of civilians in a conflict and give voice to those who will at most
102

Dinstein, 2004; Schmitt, 2009; Rubenstein and Roznai, 2011

42

impacted by the result of war. Any actions of civilians are depoliticised by belligerents
who play the leading roles. Therefore human shields attempt to challenge the status quo
and settle a new position for politically active non-state players.

Eventually, perhaps the most ambiguous point of the topic is the principle of military
necessity. The application of this principle as a legal instrument can limit the civilian
protection and break through the humanitarian interest of the law. Comprehensive
relation between military and civilian objections is guided, in favour of the military, by
the standard of collateral damage. I personally endorse the opinion of Van Engeland
who calls for re-humanisation of current humanitarian law103. The goal of human shields
is possibly the interaction with belligerents and the reminding of necessary adherence
with law and moral in war.

103

Anicee Van Engeland: Civilian or Combatant?: A Challenge for the 21st Century (Terrorism and
Global Justice), Oxford University Press (April 19, 2011)

43

Conclusion
The interpretation of direct participation on hostilities puts loss of civilian protection in
the context of humanitarian law. The presented analysis demonstrates that the
interpretation has developed in relation to individuals and groups in an attempt to cover
the complex range of situations when civilian fighters or non-combatants engage in
hostilities. My introduction into the topic of direct participation in hostilities presents a
spectrum of opinion applicable to contemporary situations in armed conflicts. Practice
inevitably challenges legal interpretation and since state armed forces increasingly face
attack from a wide range of actors, including those who may appear to be civilians,
rules must be modified to meet the context of modern warfare.
Who is considered to be directly participating in hostilities and may lose his civilian
protection is the essential question in this thesis. The ICRCs Guidance on Direct
Participation in Hostilities interprets the existing law with the most care of applying the
principle of humanity and avoids any questionable interpretation favourable to
practicality of military operations. On the other hand the practice of states, such as
Israel and U.S., try to come up with an alternative style that avoids the revolving-door
in the concept of civilian protection. Therefore, a careful assessment must be undertaken
before targeting of civilians occurs.
Eventually, it is today perhaps more important than ever that IHL serves as protection in
armed conflicts. Daily, we can see insurgencies and terrorist attacks getting more and
more common, leading to devastating effects for those affected. New instruments
governing these types of asymmetric conflicts in more detail would certainly be helpful.
However, since it is a very long way before such legal instruments would establish a
common practice of states and non-state actors, it would be a useful first step if states
could start agreeing upon fundamental definitions and unite against the increased
violence directed against innocent civilians.

44

List of references
Literature:
Yoram DINSTEIN; The Conduct of Hostilities under the law of International Armed
Conflict;2nd edition, Cambridge University Press 2010;p.320 ISBN: 978-0-521-12131-6;
Yoram Dinstein: Distinction and Loss of Civilian Protection in International Armed
Conflicts; International Law and Military Operations / Michael D. Carsten, ed.; Naval
War College 2008; ISBN1884733557
Dieter FLECK (ed.), The Handbook of International Humanitarian Law, 2nd edn.,
Oxford: Oxford University Press, 2008, 775pp; ISBN 978-0-19-923250-5
Rod THORNTON: Asymmetric Warfare: Threat and Response in the 21st Century.
Hoboken, N.I.: Wiley; Polity Press 2007, ISBN: 074563365X
Zegveld, Lisbeth; Kalshoven, Frits, Constraints of the Waging of War an introduction
tointernational humanitarian law, ICRC, 2001; ISBN:978-1-107-01166-4
Anicee Van Engeland: Civilian or Combatant?: A Challenge for the 21st Century
(Terrorism and Global Justice), Oxford University Press (April 19, 2011), p.192, ISBN13: 978-0199743247

Articles:
Charles GARRAWAY: The Changing Character of the Participants in War:
Civilianization of Warfighting and the Concept of Direct Participation in Hostilities;
International Law Studies Volume 87; Naval War College Newport, Rhode Island 2011;
Gillard, Emanuela-Chiara, Business goes to war: private military/security companies
and international humanitarian law, International Review of the Red Cross, Vol. 88,
Number 863, September 2006
Henckaerts, Jean-Marie; Doswald-Beck, Louise, Customary International
Humanitarian Law, Volume 1: Rules, Cambridge University Press, 2005
Sassli, Marco, State Responsibility for violations of international humanitarian law,
International Review of the Red Cross, Vol. 84, Number 846, June 2002
Schmitt, Michael N., War, International law, and Sovereignty: Reevaluating the Rules of
the Game in a new Century: Humanitarian Law and Direct Participation in Hostilities
by Private Contractors or Civilian Employees, Chicago Journal of International Law,
winter 2005
Schmitt, Michael N., Direct Participation in Hostilities and 21st Century Armed
Conflict, Krisensicherung und humanitrer Schutz, 2004
Singer, Peter W., War, Profits, and the Vacuum of Law: Privatized Military Firms and
International Law, Columbia Journal of Transnational Law, January 2004,
45

Singer, Peter W., Corporate Warriors: The rise of the Privatized Military Industry,
Cornell University Press, 2003
Walker, Clive; Whyte, Dave, Contracting out of War? Private Military Companies,Law
and Regulation in the United Kingdom, International and Comparative Law Quarterly,
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Watkin, K.W., Combatants, Unprivileged Belligerents and Conflicts in the 21st
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Development of International Humanitarian Law, Cambridge, January 2003
Quguiner, Jean-Francois, Direct Participation in Hostilities under International
Humanitarian Law, Working Paper, International Humanitarian Law Research Initiative
Reaffirmation and Development of IHL, November 2003
Newspaper Articles etc.
Amnesty International: Israel/Gaza: All sides must protect civilians as conflict escalates;
8 July 2014; https://www.amnesty.org/en/articles/news/2014/07/israelgaza-all-sidesmust-protect-civilians-conflict-escalates/
Terrence McCoy: Why Hamas stores its weapons inside hospitals, mosqueand schools;
The Washington Post; July 31, 2014; http://www.washingtonpost.com/news/morningmix/wp/2014/07/31/why-hamas-stores-its-weapons-inside-hospitals-mosques-andschools/
Reports etc.:
ICRC. Third Expert Meeting on the Notion of Direct Participation in Hostilities.
Geneva, 23 25 October 2005. Summary Report
ICRC. Second Expert Meeting. Direct Participation in Hostilities under International
Humanitarian Law. The Hague, 25-26 October 2004
ICRC. Direct Participation in Hostilities under International Humanitarian Law,
Report prepared by the ICRC, September 2003
ICRC. Commentary to Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of International Armed Conflicts
(Protocol I), 8 June 1977
ICRC. FAQ. International humanitarian law and private military/security companies. 23
May 2006
ICRC. Privatization of War. 23 May 2006
ICRC. The ICRC to expand contracts with private military and security companies. 4
August 2004
ICRC. The ICRC and Business Enterprises, December 2006

46

UN HUMAN RIGHTS COUNCIL. Report of the United Nations Fact-Finding Mission

on the Gaza Conflict; A/HRC/12/48 25 September 2009
IHL treaties:
Annex to the 1907 Hague Convention IV: Regulations Respecting the Laws and
Customs of War on Land
Hague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons
in Case of War on Land, of 18 October 1907
Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949
Geneva Convention (IV) relative to the Protection of Civilian Persons in time of War,12
August1949
Lieber Code, General Orders No. 100, 1863
Protocol (I) Additional to the Geneva Conventions of 12 August 1949 and Relating to
the Protection of Victims of International Armed Conflicts, 8 June 1977
Protocol (II) Additional to the Geneva Conventions of 12 August 1949 and Relating to
the Protection of Victims of Non-International Armed Conflicts, 8 June 1977
Rome Statute of the International Criminal Court, 2187 UNTS 90
Cases:
ICTY: Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Trial Chamber, Judgment of
3 March 2000
Supreme Court of Israel: HCJ 769/02, The Public Committee Against Torture in Israel v.
the Government of Israel, 11 December 2006
Websites:
ICRC: www.icrc.org

47