Red Cross Official Outlines New International Humanitarian Law Report at Law School Seminar

June 4, 2009

Knowing who the enemy was used to be simple. In modern warfare, however, soldiers on the front lines are often faced with tough questions as to who they're allowed to target, according to Philip Sundel, the deputy legal advisor for the International Committee of the Red Cross.

Philip Sundel

During the Law School's third annual seminar on applying International Humanitarian Law, Sundel discussed a new ICRC publicationdesigned to help military troops determine when a civilian has become a combatant.

Civilians are protected from attack, but there is an exception when a civilian is "directly participating in hostilities." The ICRC guidance, according to Sundel, "is intended to try to create a practical, theoretical box within which to place those people [who can be targeted] and not let it go so far that it's reaching people that are not really directly participating."

Though attacking civilians is generally off limits unless they are participating in the fighting, the application of the rule governing military conduct in such situations varies from country to country, Sundel said.

The new ICRC guidelines, a result of more than six years of work including consultations with experts in the field, are intended to help determine when a civilian is directly participating in hostilities, not to develop a new set of regulations. However, the report is likely to stir up controversy, with some groups maintaining that the guidelines don't go far enough to protect civilians and others claiming it goes too far in restraining military actions, Sundel said.

"The ICRC does not pronounce rules and cannot pronounce rules; that is for states to do," he said. "In our various roles with respect to IHL, we have put together what we propose as guidelines for applying DPH. We believe that these guidelines are reflective of the existing IHL to date."

Under the Geneva Convention, civilians are "those persons who are not members of organized armed forces or groups belonging to a state or non-state party to an armed conflict." This means people involved in armed groups, or potentially terrorist groups are not considered civilians.

This is controversial for some human rights groups, who believe this rule is incompatible with fundamental human rights law. The new ICRC guidance provides three cumulative elements for determining when a civilian is directly participating in hostilities.

The civilian's actions must meet a threshold of harm standard and be likely to inflict death, injury or destruction that adversely affects the military operations of a party to the conflict. The civilian's action must also support one party by harming another.

Finally, there must be a direct link between the civilian's part in the action and the harm that is likely to result, Sundel said

This requirement is the source of significant controversy, as it is difficult to define how closely related a civilian's action must be to the resulting harm for the civilian to be targetable.

"This is probably a slippery slope with regards to DPH, " Sundel said. "How closely connected to the conflict do you need to be for what you are doing to be considered DPH-ing?"

A civilian who makes bombs for a terrorist group might be seen as directly participating in hostilities, but what about a civilian who delivers raw materials to the bomb-maker? The ICRC report attempts to provide guidance, but this type of question ultimately remains a gray area, Sundel said.

Maj. Chris Brown, right, and Philip Sundel

Maj. Chris Brown of the Army's Judge Advocate General's Legal Center and School agreed that determining which civilians are directly participating in hostilities can be difficult, and said it's important for the military's rules to be consistent with international law.

"It's a tough area to teach, " Brown said. "It's not really clear, although the ICRC report may help provide some clarity."

The U.S. military uses a test that focuses on whether a person's function poses a direct threat to the safety of U.S. troops. Some other countries use a narrower test that allows for targeting of civilians only in self-defense, when the civilian is trying to harm soldiers or their equipment.

U.S. soldiers follow narrowly tailored rules of engagement to make decisions in the field, but the military rule-makers must ensure that the rules of engagement are consistent with international law, Brown said.

"I'm looking forward to the U.S. government response to the ICRC study, " he said. "That will increase my ability to teach to our commanders and judge advocates, who really want more meat on the bones of what the U.S. government position is in these areas."

The Law School Human Rights Program, the Judge Advocate General's Legal Center and School and the ICRC co-sponsored the seminar.

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