The brutal fight against Islamic State wages on in Iraq and Syria. Amnesty International recently reported another air strike apparently targeting a Syrian maternity hospital; meanwhile the U.S. is being criticized for air strikes that killed dozens of civilians elsewhere in Syria. While it might seem like a free-for-all, the international law of armed conflict is an incomplete but valuable code that aims to provide minimum protections for civilians caught in conflict. Certainly the most high-stakes part of the law of armed conflict is the law of targeting – who and what can be a legal target of violence.
One of the main principles of the law of armed conflict is combatant immunity – lawful combatants can hurt or kill other lawful combatants at any time. Because of the conflict, what would otherwise be murder transforms into a lawful act. This makes defining who is a “lawful combatant” of utmost importance.
Modern methods of conflict make the basic international laws of targeting problematic. The law of armed conflict that we see in the Geneva Conventions (the original is pictured above) was codified during the 19th and early 20th centuries – a time when conflict was mostly waged between well-organized and well-demarcated state militaries facing off on a battlefield. Today, conflict often involves irregular forces or insurgent groups. While some of these may be highly organized — and they are usually not demarcated by special uniforms — in fact, they benefit greatly from blending in with the civilian population.
Even the way individuals participate in conflict has changed. Belonging to a state military has traditionally been a full-time job. Yet organized state militaries sometimes also hire private contractors and civilian employees. Irregular forces often benefit from part-time fighters, some of which maintain other jobs in the community. People may also support a fighting group without taking up arms themselves – for example, a mechanic who repairs the group’s vehicles, or a baker who provides bread. These grey areas challenge a body of law that was designed to deal with cut-and-dried differences between friend and foe.
Putting aside the threshold issue of whether a lawful armed conflict exists, the rules of targeting in modern conflict rest heavily on the customary notion of “direct participation in hostilities.” Direct participation in hostilities means that any person – whether civilian, military, private contractor or sympathetic mechanic – looses any protection they would have otherwise enjoyed while taking part in armed aggression related to the conflict. As the International Committee of the Red Cross elaborates, this is a “temporary, activity-based loss of protection” in contrast to a military member’s “continuous, status or function-based loss of protection.” The ICRC has done substantial work further defining what “direct participation” and “hostilities” mean. Indeed, they have authored an entire book on the subject.
A person is therefore a lawful target when taking direct part in active fighting, but not if he or she is taking an indirect part or no part at all. This is sometimes called “revolving door” theory where individuals are only legitimate targets on one side of the door. This makes targeting extremely difficult. In many situations it is not feasible to assess exactly who is doing what and when. Opposing sides in the conflict rarely have such detailed information about their adversaries. It also gives rise to very large grey areas: What if an individual is on their way home from directly participating in hostilities? When does a part-time fighter cross the line and become a full-time combatant?
While the international law on targeting is not straightforward, it is based on the fundamental principle that non-combatants deserve protection from the violence of armed conflict. It is this principle that also motivates many Canadians to support our country’s involvement in the fight against IS and in peacekeeping operations around the world. We should recognize the magnitude of the challenge that combatants – and their legal advisors – face. But we should also keep watch to make sure that the basic protections afforded by international law are upheld and that violators who target the wrong people are held to account.
Emily Alderson is a freelance legal researcher and writer who has frequently worked with CBA Futures. She graduated from law school at the University of Ottawa and will be called to the bar in summer 2017.