Modern warfare is increasingly taking place in civilian populated areas and being fought by civilian combatants. Instead of large, international conflicts between two nations, wars are being fought inside individual countries between state forces and non-state armed groups. This increased civilian participation on the battlefield strains International Humanitarian Law, which seeks to protect civilians from the suffering and violence of war. Under this law, belligerents are generally prohibited from targeting civilians during combat. However, it also recognizes that civilians may decide to participate in combat without becoming full-fledged members of a party to the conflict. Civilians lose protection under the law for such time as they take direct part in hostilities.
Since modern warfare has blurred the lines between civilians and combatants, the International Committee of the Red Cross (‘ICRC’) sought to reinterpret and clarify the law regarding civilians directly participating in hostilities. Unfortunately, the resulting Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (‘Interpretive Guidance’) does not represent a consensus of experts in International Humanitarian Law. The ICRC bends the law in favor of humanitarian concerns at the expense of military realities. Because of the deficiency of the Interpretive Guidance, it is necessary to reexamine when civilians are directly participating in hostilities. Particularly, the ICRC’s treatment of improvised explosive device assembly as only indirectly participating in hostilities is of great concern.
Under the Interpretive Guidance, a civilian’s specific act must meet three criteria to be considered directly participating in hostilities:
1. Threshold of harm- the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack,
2. Direct causation- there must be a direct causal link between the act and the harm likely to result from that act, or from a coordinated military operation of which that act constitutes an integral part, and
3. Belligerent Nexus- the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another.
Warfare is a zero-sum game where any benefit to one party harms their enemy. When insurgents in Iraq and Afghanistan assemble improvised explosive devices, they are building up the capacity to inflict a specific harm. It is more proximate to the ensuing explosion than an ammunition worker in a factory, but it is less direct than the fighter who actually detonates the bomb. However, improvised explosive devices are so integral to modern conflicts and inflict so much damage on the battlefield, civilians must be considered directly participating in hostilities for creating them. Improvised explosive devices cause the single greatest number of deaths in Iraq and Afghanistan, they necessitate a massive expenditure in counter-technology, and they hurt the morale of combatants.
The Interpretive Guidance treats the assembly of improvised explosive devices as indirectly participating in hostilities mainly because of the one causal step requirement. Since civilians making the bombs may not be the ones who detonate them, the ICRC believes the civilians are too far removed from the resulting harm. However, the Interpretive Guidance considers a civilian who collects valuable intelligence on specific troop movements differently. Even though the intelligence is most likely combined with other information, analyzed by multiple people, and disseminated before any action is taken, the intelligence collector is considered to be directly participating in hostilities. The intelligence collector is directly taking part in hostilities because his conduct is integral to the resulting harm- not because it is one causal step removed. Likewise, the same integral standard should be used for assembling improvised explosive devices.
Importantly, the Interpretive Guidance compares improvised explosive makers with ammunition factory workers when, in fact, the bomb makers are more closely related to lookouts. The ammunition worker who makes bullets far from the battlefield has no idea who will use the bullets, has no idea when the bullets will be used, and is not integral to any operation. Improvised explosive devices, on the other hand, are likely to be made, stored, and used close to the fighting. This is because troop positions are fluid, and traveling military personnel are typically the targets for attack. Using the same logic, the bomb maker is likely to know the device will be used soon and close by even if he is unaware of the specific operational details. The geographical and temporal proximity to the resulting harm distinguishes improvised explosive device makers from ammunition factory workers. Additionally, improvised explosive devices’ single purpose is to kill enemy combatants in war. Ammunition is used to hunt, for sport, and is widely used outside of war zones. This difference in purpose also distinguishes ammunition from improvised explosive devices.
Civilians who assemble improvised explosive devices are more similar to lookouts because both can be uncertain about the precise consequences for their conduct. When a lookout reports local troop movements on the battlefield, he does not know what attack, if any, will be planned using his information. He does know that his information is time and geographically sensitive so his information will be acted upon on relatively soon. Similarly, an improvised explosive device maker may not know the exact details of how his device will be used, but he does know it will be used soon, near by, and to kill enemy soldiers.
Lastly, the inherent nature of improvised explosive devices makes collecting materials for, assembling, instructing how to use, and detonating them all directly participating in hostilities. They are not assembled far from the battlefield and shipped into war zones for unspecified reasons. Al-Shabaab in Somalia is not shipping their bombs to Syria. Improvised explosive devices are made locally, have a singular use, and are used quickly. When a civilian makes an improvised explosive device, they may not know the time of attack when the bomb will be used, they may not know which combatants will be planting the device, and they may not know which military unit is being targeted. They do know, however, the bomb will be used soon, it will be used near by, and the only reason it is being made is to cause imminent death and destruction. If a civilian buys a cell phone, detonation cord, and some fertilizer in order to build an improvised explosive device, they are directly participating in hostilities.
To achieve the main goal of International Humanitarian Law, which is protecting civilians from the horrors of war, it is necessary to interpret direct participation liberally. The law should discourage civilians from taking part in hostilities so they stay far away from the battlefield. It is unfair and unbalanced for civilians to retain their immunity in a war zone despite being intimately involved in hostilities. Part of the reason that the line between civilians and combatants is blurred in modern warfare is the law permits civilians to take part in hostilities with impunity. Narrowly interpreting what it means to directly participate encourages civilians to actually participate.