Transcription
Welcome to session four of our course on using IHL. At the outset of this course, if you may recall, I divided the main tasks of international humanitarian law into two major components. One was to facilitate, guide, and restrain the conduct of hostilities, mainly addressing itself to combatants. And the other major component was to extend protection and humane treatment to war victims.
Our sessions two and three focused primarily on the facilitative and restraining aspects of IHL when it came to the conduct of hostilities. Now, in this session and in the next session, that is session five, we will move away from the conduct facilities paradigm, as it were, and into the protection of victims paradigm.
There are well-known and long-standing philosophical and moral foundations underlying the protective mandate of international humanitarian law. In the 18th century, the French philosopher Jean-Jacques Rousseau wrote his famous Social Contract. And there, he hypothesizes the notion that war is a business strictly between states, and the citizen soldiers who are conscripted into their mass standing armies and fight each other are enemies by accident, as it were. Although they are public representatives of their respective states and as such public enemies in the eyes of their opponents, once they are taken out of combat by virtue of events like sickness, wound, capture, surrender, and so on and so forth, such soldiers become alienated from the state with which they were previously affiliated, well, in fact, they continue to be affiliated, and also from the cause for which they have been fighting. And from the citizen soldier, he or she returns, as it were, to being simple human beings.
Such a notion is also reflected in the writings of a more modern philosopher in the shape of Michael Walzer. Michael Walzer is known, among other things, for putting forth this notion called the equality, moral equality of soldiers. So, enemy soldiers are equal in their moral standing, including their moral susceptibility to harm. That brings us back to the boxing ring, the boxing analogy from our session one. And to borrow that idea, one might say that there is a similar moral equality between victims, moral equality of victims. So, it doesn't matter whether you are a victim although you are associated with one of the military parties by virtue of your citizenship or membership in the armed forces and so on. You, as a victim, are as deserving of protection and humane treatment as a victim affiliated with your enemy. So, your shall we say allegiance should not determine the extent to which you deserve protection under IHL. Analogously, peaceful and innocent civilians, if there are such things, remain detached from the causes of the state with which they are formally affiliated. And as long as those civilians do not take a direct part in hostilities, they also deserve protection under IHL.
Based on such understandings, we can see why today's international humanitarian law espouses this prohibition called the prohibition against adverse distinction. One of the most recent qualifications of this prohibition against adverse distinction is found in Article 2 of Additional Protocol 2. There, you can see that various grounds on which one may not distinguish between victims. The only permissible ground for distinguishing between victims is the medical ground, so the nature and extent of one's medical need. And this also is for those who are familiar with medical practice, when medical practitioners such as doctors and nurses swear the Hippocratic Oath, it's a close reflection, echo of the notion that they shall not discriminate between victims based on their personal attributes. And the only way in which they may discriminate between their patients is their medical needs. And unsurprisingly, the IHL prohibition under this philosophy that international humanitarian law espouses when it comes to protecting victims, and the Hippocratic Oath, has a very close affinity indeed, not least because of the involvement of the International Red Cross in these matters.
Although otherwise categorical, the prohibition against adverse distinction does have some caveats. I would note two of them for our purposes here. One is that this prohibition does not cut across different classes or categories of persons protected under IHL. So, as we will see later in session five, there are several categories or classes of persons protected under IHL, and they include, for example, prisoners of war, or the sick, wounded, and shipwrecked, or civilian detainees, and so on. The fact that arguably prisoners of war enjoy more protection than their civilian counterparts, that's a contested proposition, by the way. If that is nevertheless true, then it does not mean that the difference between the protections extended to these two groups of persons amounts to prohibited adverse distinction.
Another caveat I would mention here is that IHL does nevertheless extend special protection to certain people, including in particular women and children. Here, maybe as a footnote, I may say a few things, especially in view of the recent emergence in critical theories. It's been suggested that international humanitarian law is in fact gendered and it's in a way sexist. Why should this law treat women and children in a sort of a way, a special way, and in distinct contradiction, distinction from men and the elderly, for example? So, some commentators have complained that there's an implicit bias in the way IHL is written, which essentially projects the stereotype of women and children as the defenseless, agency-less objects that ought to be treated as if they were innocent and yes, helpless people, unlike men, by implication, who might be able to help themselves.
So, that encapsulates the scope and the principal prohibition against adverse distinction that underlies IHL. One may say that there is a fairly bright red line between protection under IHL, in other words, victimhood as understood by IHL, on the one hand, and involvement in the business of fighting on the other. Naturally, both combatants and civilians, under suitable circumstances, may enjoy protection under IHL. And by the same token, both combatants and civilians, especially when it comes to civilians taking a direct part in hostilities, would lose much of their IHL protection because of their involvement in the fight, in the business of fighting.
So, let's take a look at how combatants may move between these two headings: on the one hand, victimhood, and on the other hand, involvement in the business of fighting. As we discussed earlier, combatants are, among other things, liable, continuously liable to attacks by virtue of their combatant status. And that liability stems from the fact that combatant status includes the right of direct participation in hostilities. As long as you possess that right, although you may not be exercising that right at a particular moment, you expose yourself legally to attacks by your enemy. Combatants using lawful means and methods of warfare, although you continue to possess that right, as long as you are a combatant, you may cease to be liable to attacks and become eligible for protection and humane treatment when and for so long as you are hors de combat. It's a French expression which literally means out of combat. And this hors de combat status, or the state of hors de combat, rather, because it's not a status per se, can be found in Article 41 of Additional Protocol 1. It's widely accepted that Article 41 codifies the state of hors de combat under customary international humanitarian law. And there are three specific circumstances listed in paragraph two, plus two conditions, where if you fulfill, if you fall into one of those circumstances and fulfill the two conditions, you are hors de combat. In fact, anyone could be hors de combat, not just combatants, but whoever else it may be, could become hors de combat if he or she fulfills the requirements.
So, one circumstance in which a person, including a combatant, becomes hors de combat is when he or she is in the power of his or her adversary. The second circumstance is where the person in question expresses his clear intention to surrender. And third, where the person in question is either unconscious or incapacitated by wound or sickness such that he or she is unable to defend himself or herself. So, these are the three specific circumstances in which you would become hors de combat, but only if you fulfill two further conditions: one, you refrain from any acts of hostility, and two, you refrain from trying to escape. When all of these are in place, you are hors de combat, and your opponent may not lawfully attack you.
Each of these conditions, circumstances, and the two conditions attached to each of them can be discussed at length, but we don't have time for that, unfortunately. Suffice it to say that the first circumstance, that is, being in the power of the adversary, has given rise to some controversies. So, when does someone fall into the power of his or her adversary? One fairly widely accepted interpretation of when someone is in the hands of the adversary within the meaning of Article 41, Additional Protocol 1, is that the person is captured and in detention. And that should not be too difficult to comprehend. What is less clear is where a person is rendered helpless and defenseless, although not within the meaning of the third paragraph, that is, unconscious or wounded and sick such that you are incapable of defending yourself, but you're simply left without means of defending yourself, such as no weapon, no will to continue fighting, you just stand idly or stand clueless. Where that happens, and let's say you are like a deer in the headlights of a car, sort of too afraid to do anything, overpowered by your enemy, does that mean that you have fallen to the power of the adversary? Their opinions are divided. Some have suggested that yes, being helpless in that way means you are in the power of the enemy. Whereas many others would contend that that's not enough because you have not surrendered. If you are rendered helpless and defenseless, the kind of things that enemy combatants are expected to do is to then offer to surrender. So, as long as you have not submitted yourself to the authority of your opponent, you are not yet in the power of the enemy.
The second circumstance regarding expressing one's intention to surrender. There, the standard use of the white flag, the flag of truce, might come to mind. Although the white flag, contrary to popular expectations, is in fact not a signal to surrender per se. The flag of truce is in fact just an expression of your wish to communicate with your enemy in a non-hostile way. Here too, when can you say that you have clearly expressed your intention to surrender such that you are hors de combat? One interesting incident involves the alleged expressions of surrender by those gathered on the ground and waving their hands to drones. Can you offer to surrender to a drone? And as long as you continue to express your intention to surrender, are you then hors de combat? This is the kind of phenomenon that has troubled IHL commentators in modern warfare, when visual aerial images and other equipment will be used in combat situations, and some have decided to surrender to such equipment. So, what do you do?
The third circumstance, that is, being either unconscious or being rendered incapable of defending yourself by virtue of sickness or wound, but that's probably the least controversial of the three circumstances listed in Article 41, paragraph two. But again, here come the two additional conditions. These two additional conditions apply to all of the three circumstances, but they particularly relate to the third circumstance. That is, if you are, shall we say, incapable of defending yourself because you are wounded, but it happens sometimes that despite your wound, you continue to fight, advance, or charge. Or if you're wounded, you may decide to retreat, that is, turn around and run. Now, so when either of these things happens, then you have acted contrary to one or the other condition attached to hors de combat, such that you are not yet protected under this heading.
So, in the 1991 Gulf War, the coalition forces found themselves observing these large formations of the Iraqi armed forces retreating from Kuwait to Iraq. The coalition forces commanders issued ultimatums and warnings that, "Now you are commanded to surrender. Specifically, you are commanded to abandon your weapons, exit, abandon your vehicles and weapons, and sit in certain formations away from such equipment so that we can come and collect you as prisoners of war." And despite such warnings, the deadline had passed, and the Iraqi, the columns of Iraqi retreating Iraqi forces continued to move towards Iraq. And at that point, General Schwarzkopf and his helicopter battalions and other units of the coalition forces engaged and decimated them, basically. If you put it in a sort of simpler term, you basically shot them from behind, their back, as they were running. This has created a great deal of unease amongst some, or perhaps many, military practitioners and commentators. One such practitioner is none other than the late General Colin Powell. He said at some point after the Iraq War that, "This is not how we fight. It just disturbs me a lot that we were seen to be shooting enemies who were retreating and running away from us. That's not how we fight as soldiers."
But there are those who say that yes, it could be morally disturbing and it just creates very bad PR for the coalition forces. As far as international humanitarian law is concerned, there is in fact nothing unlawful about it. First, they were combatants, and therefore their status exposed them to attacks by their enemy, namely the coalition of forces. Were they hors de combat such that they would be exceptionally immune from coalition forces' attacks? Well, then, in order for that to happen, they would have had to fall under one of the three circumstances listed in Article 41 or the customary equivalent of it, and then fulfill the two conditions. Were they in the power of the adversary? Did they express their intention to surrender? Were they unconscious or otherwise incapacitated by wound or sickness such that they would be incapable of defending themselves? And in any event, were they, did they refrain from trying to escape? Since, argue the retreating Iraqi forces did not fulfill the requirements of hors de combat, they continued to be liable to attacks.
Again, here it's a very difficult terrain of IHL to navigate. But if you manage to separate IHL as a set of legal rules, that is, written rules, more or less, except customary rules which are by definition not written, on the one hand, and on the other hand, what you feel is the morally right thing to do under the circumstances, then you might see some basis for those who argue that the retreating Iraqi forces were not yet hors de combat and therefore they were legally speaking, at least, liable to attacks by the coalition forces. So, although by default combatants are continuously liable to attacks because of their status and the right of direct participation in hostilities that attaches to that status, when rendered, when finding themselves in this particular state of hors de combat, they are exceptionally protected against attacks under international humanitarian law. Conversely, by default, civilians are protected against attacks by virtue of their status. However, if and for so long as they choose or they actually participate directly in hostilities, the exception is civilians exceptionally lose their protection against attacks under IHL. So, the position that combatants have on the one hand, and that civilians have on the other hand, are effectively the reverse image of each other.
If you also recall our earlier discussion, that directly participating in hostilities is like driving. Then having the right to do so on the one hand, and having the fact that is actually driving on the other hand are two separate phenomena. Now, it becomes necessary that we look closer into the very notion of direct participation in hostilities, and especially as a matter of fact rather than as a matter of right, so that we can see when civilians remain protected against attacks and when they lose that protection. The trouble here is that direct participation, or so I think, this is a convenient moment to introduce this shorthand DPH in our discussion, so that I don't have to keep repeating "direct participation in hostilities" and so on and so forth. Although one could take this shorthand too far. In fact, many of us have, you see in some literature that DPH has even become a verb in some, according to some commentators, for example, civilians DPHing, or someone who has DPH, and so on and so forth. I prefer to try to avoid such extensive use of this acronym, but you may see me inadvertently committing this error. Not, it's not actually even an error, it's this way of speech from time to time.
Well, be that as it may, the trouble with DPH is that it has not been defined in a treaty, or some might even argue it has not been defined customarily. The closest thing that we have to a codified definition of DPH is the definition proposed by the International Committee of the Red Cross in 2009. The definition, or what the ICRC calls the Interpretive Guidance on the Notion of Direct Participation in Hostilities in International Humanitarian Law, is the product of a multi-year research and consultation process initiated by the international community. Over across engaging, as it did, a number of subject matter experts. For reasons that are not in all their respects pertinent to our discussion, there was, in fact, quite a dramatic fallout between the participants at the 11th hour of this initiative. This process, and the resulting document that we have access to, that is the DPH Guidance of 2009, ended up being presented as the work of the ICRC, or the ICRC's position on the notion, rather than anything reflecting custom per se.
Although I readily accept that the ICRC Guidance on DPH contains many meritorious features, for example, the fact that DPH is to be understood by reference to three criteria, features like that are very useful and constructive, I agree. The trouble is that there are some other additional aspects of the guidance that have given rise to rather substantive disagreement and controversy, and these differences of opinion continue to persist even today, some 12 years after its publication. So, in order for us to understand when one sees the divide between being liable to attacks, in other words, being ineligible for full IHL protection against harmful effects of hostilities, on the one hand, and being fully protected under IHL, again with such consequences, one really cannot avoid looking into DPH and its numerous problems, the problematic areas that are associated with understanding what the fact of DPH means.
So, I propose that we spend the rest of today's lecture highlighting and reflecting on some, because I cannot highlight all of them, because there are so many, some central points of disagreement surrounding the notion of DPH as articulated by the International Committee of the Red Cross. I suggest we divide our discussion of the ICRC Interpretive Guidance on DPH into three parts. The first part concerns direct participation in hostilities as a discrete, separate, and discrete act. The second part concerns the way in which the ICRC appears to create two categories of persons: on the one hand, civilians who are either not directly participating in hostilities at all, or directly participating in hostilities but only on an unorganized and sporadic basis, and on the other hand, what the ICRC calls members of organized armed groups, who appear to be no longer civilians in the sense I just described. This notion, and appear to be continuously liable to attacks. The third part concerns the way in which the ICRC allegedly introduces an obligation on the part of the attacking party to choose the least injurious mode of disablement where two or more modes of such disablement are reasonably available. I would say that the first part is the least controversial, although there are some controversial bits in it. Whereas the second and third parts that I just outlined are highly contentious, depending on who you speak to.
So, let us go back to the first part of our discussion, and that is direct participation in hostilities as a separate and concrete act. So, as it were, does a separate and concrete act of driving, if you have that in the back of your head as we go. So, in the ICRC opinion, there are three components, constitutive elements to the fact of DPH. And they are, first of all, a certain threshold of harm, and second, direct causation, and third, belligerent nexus. If, but only if, all these three elements are present in the act, this specific act, do we see direct participation in hostilities within the meaning of IHL.
When it comes to a threshold of harm, one could imagine, for example, how a young boy might try to fire a slingshot with a stone at an armored tank. The slingshot may actually, the stone may successfully hit the tank, but clearly the tank will remain unscathed, in any way, no way compromised or affected in its ability to continue with its military operations. So, this clearly would be far below any threshold of harm that would seem inherent to an act amounting to direct participation in hostilities, that it would be outside the scope of the notion. So, it makes sense to request, to expect a certain threshold to have to be met in order for any act to be even considered as a potential instance of direct participation in hostilities. Whether there can be some sort of an agreed-upon threshold that would apply to every each and every candidate act, what that remains to mean, that is probably something unattainable, I would think. But the notion itself seems valid and reasonable.
When you move to the second constitutive element, that is, direct causation, it becomes a little bit more contentious. At least we would agree that if the causation, causal link is so removed between the act that we now seek to characterize as direct participation in hostilities on the one hand, and what we would agree on as in fact direct participation in hostilities on the other hand, then it's hard for us to accept that it would be such an instance of DPH. But then it's all a matter of appreciation in the end. And the ICRC, show has chosen to require direct causation, that is, first-degree causation. So, remoteness will disqualify an act. The causal remoteness would disqualify an act from becoming direct participation in hostilities. It makes sense, but then why would it have to be the first-order causation, that is, direct causation, as opposed to maybe one and a half degrees of separation, causal separation, if not a full two degrees of separation? And how do we even assess causal separation?
To give you an example, if you are looking at a kinetic explosion, you could engage in a very, sort of, dry chemical and physical description of the process: the projectile hitting the objective, and then being generated some sort of a kinetic force that would compress or ignite the explosive material, and the material rapidly oxidizes and expands in space, and that ruptures the metal casing, and the shrapnel would fly at a velocity generated by the blast, and so on and so forth. You could just go on explaining the chemical, physical process of harm. But it's going to be very difficult for us to say, agree that, yeah, this is where the first-order causation ends, and the second-order causation begins. If you even go back in time, preparing a bomb, an improvised explosive device, using your expertise, for example, is understood according to the ICRC as fulfilling the direct causation requirement. Whereas if you feed the soldiers, if you are someone in a cook, like in a kitchen, a battlefield kitchen, and feed the soldiers so that they would have enough nutrition and energy to fight, that according to the ICRC is too removed, causally speaking, in order to qualify as direct participation in hostilities. Okay, one may agree or disagree, but I don't know to what extent it would command sufficiently widespread agreement on this kind of description. So, there's a suspicion, there's a feeling that the line drawn on the causal requirement is a bit arbitrary, and it may not be useful in an increasing number of circumstances.
The third constitutive element, known as belligerent nexus, is perhaps the most controversial or heavily contested of the three. In a nutshell, during the clarification process, the experts realized that it would be very difficult to pin the notion of direct participation in hostilities on concepts like hostile intent. Something that happens accidentally would not amount to direct participation in hostilities. Direct participation in hostilities seems to be a willful or deliberate act on the part of the participant, such that you have no choice but to engage in some sort of reflection about the person, the participant's state of mind. But would we then hinge the whole idea of direct participation in hostilities on something like hostile intent? The concern was, what if there is a fighter jet and its pilot traveling at very high speed and observing someone like, for example, who appears to be acting as a human shield? How much time and how with what kind of reliability could we expect the pilot to determine, yes, that person on the bridge is exhibiting hostile intent, such that I can include this person to be a direct participant, therefore I can strike? So, because assessing a person's hostile intent was seen to be too subjective and too open to abuse and other kinds of undesirable consequent outcomes, that the experts decided not to rely on hostile intent as the benchmark. Instead, the guidance says that it has to be belligerent nexus.
But then the problem here is that one of the examples used in the guidance involves the sudden emergence of people on a street, on the road. And if it says the emergence is generally a spontaneous event, then the fact that their presence on the road blocks the passage of a military convoy from point A to point B cannot amount to direct participation or certain on the part of those people who appear on the street. However, if it's clearly designed to block the passage, then it fulfills the belligerent nexus requirement. But then, how do we assess that difference between the spontaneous appearance of such people on the one hand, and the clear design behind their appearance? To me, it's a bit of a semantic game being played here in my mind. What the guidance calls belligerent nexus is little more than the externally observable manifestation of hostile intent, rather than hostile intent itself, which may stay in someone's head. So, why didn't they opt for this kind of externally observable manifestations of hostile intent and instead chose this belligerent nexus as if it's an objective criterion, which I'm not sure if it is in fact an objective criterion. So, a bit of a problem persists on the third constitutive element, in my opinion.
If we move to the second aspect of our discussion on the guidance, this, as I said earlier, concerns the distinction between civilians who are either not DPHing at all, or DPHing but only on an unorganized and sporadic basis, on the one hand, and on the other hand, people who are apparently no longer civilians and become members of organized armed groups, and as such, being continuously liable to attacks by their opponents. There is a bit of background information that I need to share with you without going too much into detail, and that is the distinction between these two groups of persons only obtains in the context of a non-international conflict. We haven't done conflict classification yet. That topic is scheduled for our session six. But suffice it to say here that the distinction, the usual position, the juxtaposition that we have been undertaking in our sessions two and three, namely combatants versus civilians, combatants do not exist legally speaking in non-international armed conflicts. They only exist in international conflicts. As a result, when a person, let's say, acts for a non-state organized armed group, one cannot use combatant status as a point of reference while describing this person. So, it has to be something else. So, that much I understand and I accept.
Then the question is, would this person necessarily be someone other than civilians in non-international conflicts? One position is that it doesn't have to be. In non-international conflicts, everybody could be a civilian, and it could be just that some civilians enjoy immunity against attacks, whereas some others forfeit that immunity by virtue, for example, of membership in unorganized armed groups. But that's not how the ICRC chose to solve the problem. It seems to me that they have opted for the creation of status, as I said in my writings, and try to sort of keep the sanctity of the notion of civilian as someone who is in fact protected against attacks, and that protection would only cease exceptionally when a civilian directly participates in hostilities, but strictly on an unorganized and sporadic basis. I'm still not sure if membership in an organized armed group is in fact a status or anything resembling status under IHL. But the desire seems palpable on the part of the ICRC to treat those two groups of people differently and by giving them different labels.
So, when, according to the ICRC, does someone cease to be a civilian and become a member of an organized armed group? The line is crossed when, according to the guidance, the person in question assumes what it calls a continuous combat function, or CCF. CCF renders a person a member of an organized group, the non-international conflict equivalent of combatant status, I suppose. So, the analogy drawn here is one between the organized armed group and the armed forces of a state. And you join, as it were, the organized armed group as you would join the ranks at the status, combatant status, by joining the armed forces of a state. And when it comes to organized armed groups, you join it by assuming this CCF, much like combatant status, which you can simply acquire and hold by virtue of your membership in the armed forces. CCF is something that you can simply assume by, for example, undergoing combat training or acquiring expertise, unique skills, and so on, in, for example, the art of bomb-making. Once you have completed such processes, then you have acquired CCF. You don't even have to be discharging this function at the time of an attack in order for you to be exposed to it legally. The mere fact that you assume it is sufficient to expose you continuously to attacks.
So, the way it works is quite similar. The way in which CCF, and therefore membership in an organized armed group, works in a way that is quite similar to combatant status. The problem here, in my opinion, is that for combatants, being legally liable to attacks stems from the fact that it entails a right of DPH. It's because they have the right of DPH and they keep continuing to possess this right as long as they remain combatants, that's what exposes them to attacks. And obviously, because it's a reciprocal arrangement vis-à-vis your enemy, combatants have attendant obligations, immunities, and attendant obligations and amenities, as we discussed in session two. If you go and look at membership in an organized armed group, on the other hand, there is no obligation to distinguish yourself. If you become a member of an organized group, this membership does not obligate you to distinguish yourself from the civilians who are not members of an organized group. There is no such obligation under IHL. Membership in an organized armed group does not give you post-capture prosecutorial immunity either. Why? Because membership in an organized armed group does not give you the right of DPH. So, if you don't have the right of DPH, and if you don't have post-capture prosecutorial immunity, and if you don't have an obligation to distinguish yourself from the civilians around you, and yet you are exposed to continuously exposed to attacks, what would you do? What would be in your interest to do? I suggest to you that you would want to mingle with the civilians because they would give you protection. So, contrary to what the guidance sets out to do, that is, to bring clarity to the principle of distinction and thereby strengthening the principle, my impression, my distinct impression, is that creating this membership in the organized armed group does the generously opposite effect because you drive such members to civilians rather than away from civilians. So, that's the second part that I find interesting.
The third part concerns, as I mentioned earlier, the impression that the ICRC is seeking to find an obligation under IHL that requires that requires belligerents to choose the least injurious modes of disablement whenever two or more modes of disablement are reasonably available. Typically, disablement is achieved by injury, capture, or death. In fact, I should say capture, injury, and death. Let's say. So, one prominent Swiss IHL lawyer by the name of Jean Pictet once observed that if you can wound, you must not kill. And if you can capture, you must not wound. What's implied here is that when you can either kill, capture, kill, wound, or capture, because capture is the least injurious of the modes of disablement that are available, then you must choose that. Much like in the exercise of the right of self-defense, you must use the least strictly proportional force that is minimally necessary to repel the aggression. Or in what we call the law enforcement paradigm, when the police forces are required to escalate the use of lethal force very strictly. So, are you? The guidance, in its last chapter, seems to be introducing something similar. And this has created quite a bit of disquiet amongst a large section of IHL practitioners. Some others praise this notion because it promotes, let's say, it tends to promote more protection for victims of war.
In connection with this particular dialogue, this course, one passage stands out in the guidance, and that is, if you are, if there is a doubt about whether someone is directly participating in hostilities or not, then the principle of protection, the notion of protection under IHL demands that the person be assumed not to be directly participating in hostilities. In other words, let's see, if you have someone whose status is not unclear, there is a mandatory presumption, customary mandatory presumption under IHL that says you must presume this person to be a civilian. No one contests. The ICRC is effectively suggesting that there is a further mandatory presumption. So, once you have presumed someone to be a civilian, and if you're still in doubt about whether his or her action amounts to DPH, then you should be obligated not to assume that to be the case. I'm not sure if that's true. It will be a good, sort of, victim-friendly law, for sure. But whether that's where the law stands right now, I'm not at all sure.
Now, coming back to the minimum escalation requirement, it seems to me that at least as far as the law stands today, the permissible range of modes of disablement is capped at the use of means and methods of warfare that are over nature to cause superfluous injury and unnecessary suffering. That's where the cap seems to be, rather than going further down the ladder to the effect that you must always choose the minimum, the minimum injurious means of disablement whenever it is available compared to other modes of disablement. I am not able to find any specific rule or principle that points in this direction. Some commentators have suggested that the Martens Clause would do it for here too. I'm not sure if the Martens Clause gives you what you need. At its origins, the Clause was introduced in the 19th century when delegates in the Hague, the 1899 First Peace Conference in the Hague, found themselves unable to codify the laws and customs of war concerning occupation. And because of the impasse, those small states exposed to frequent occurrences of occupation by major powers, neighbors like Belgium vis-à-vis Germany, wanted to have a robust code written into the Hague Regulations that would bind the potential occupying powers in terms of what they can do and cannot do to the population in question, and to treat that, and also regarding the treatment of those who were found to have been resisting occupation. So, because they were unable to codify certain areas of the laws and customs of war, a compromise solution was proposed by the Estonian-Russian lawyer by the name of Friedrich Martens. So, it says, "While the delegates have been unable to agree on the comprehensive codification of the laws and customs of war, in areas that are not yet governed by Russian rules, the population and in fact soldiers or the belligerent parties shall be shall remain protected by the general principles," public conscience and dictates of humanity, or something like that. Does this really mean that the Martens Clause has specific content, normative content, or is it a declaration that the absence of treaty provisions does not mean the absence of customary rules, which is what was originally intended by the insertion of the Martens Clause? So, here too, I'm not entirely convinced that the Martens Clause can be read to generate this minimum escalation obligation in hostilities, and especially these will be civilians who are directly participating in hostilities. But these are the details in the end.
At the end of the day, what's important is that when it comes to combatants, although they in principle remain liable, continuously liable to attacks, and therefore ineligible for full IHL protection, they do become eligible while hors de combat. When it comes to civilians, the opposite is true. While they in principle remain protected against attacks, they may exceptionally expose themselves to attacks if and for so long as they directly participate in hostilities. So, it is crucial that we understand both hors de combat, when you can say someone is hors de combat, as well as when an action amounts to direct participation in hostilities. So, these are the two key notions that we would need in order to uphold the idea that victimhood and involvement in the business of fighting war are in a sort of an inverse correlation. And this is how international humanitarian law seeks to delimit its range of protective provisions.
For session five, we will take a more detailed look at some major categories of protected persons, namely the wounded, the sick, the shipwrecked, the prisoners of war, and civilians. Thank you for your attention.