The combatant status of non-State actors in international armed conflicts, in light of the notion of direct participation in hostilities : an analysis of relief workers, journalists, voluntary human shields, private-military and security contractors, and under-aged child soldiers recruited into non-State organized armed groups.
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Date
2012
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Abstract
The increased outsourcing of many traditionally military functions, together with the
fact that international armed conflicts are increasingly being fought in predominantly
civilian locations, is contesting the international humanitarian law (IHL) presumption
that civilians are necessarily non-participatory spectators in the theatre of war. The
legal lacunae which surrounds non-State actors like: private military and security
contractors (PMSCs), under-aged child soldiers, voluntary human shields (VHSs),
relief workers and journalists, is complicating the legal assessment of their primary
IHL status, obscuring crucial determinations around whether their actions amount to
direct participation in hostilities, and confounding certainty around the legal regime
applicable to them upon capture. Through critical analysis of customary and treaty
based IHL, this project explores the primary IHL status of each of these types of
non-State actors. Thereafter it seeks, through practical application of the ICRC’s
Interpretive Guide on the Notion of Direct Participation in Hostilities, to draw specific
conclusions on the range of activities that might compromise their civilian immunity
against direct targeting. In the final analysis the study concludes that engaging in
combat functions, operating weapons systems, participating in direct support
functions, conducting training for predetermined hostile acts, sabotaging military
capacity, guarding captured military personnel, gathering intelligence for use in
marking targets, divulging tactical information or acting as a lookout will amount to
direct participation in hostilities. Through similar investigation, the study concludes
that mere interference, defensive guarding or shielding of civilian or other dual-use
sites, and the defense of military installations against criminal elements, fails to rise
to the threshold required to compromise a civilian non-State actor’s immunity
against attack. While dispelling the misconception that civilian status itself can be
legally forfeited, the project explores the practical legal consequences of civilian
direct participation in hostilities: including legitimate direct targeting of these non-
State actors for so long as their participation or membership of the combative group
persist, and their criminal prosecution upon capture.
Description
Ph. D. University of KwaZulu-Natal, Durban 2012.
Keywords
International relations., War., Combatants and noncombatants (International law), Humanitarian law., Non-state actors (International relations), Child soldiers., Mercenary troops., Humanitarian assistance., War correspondents., Theses--International law.