Last month, the Center for Civilians in Conflict (CIVIC) published first-hand views of civilians living in conflict-affected countries, something “largely absent” from discussions of civilians’ loss of immunity when directly participating in hostilities. Based on more than 250 interviews with individuals in Bosnia, Libya, Gaza, and Somalia, CIVIC’s report, The People’s Perspectives: Civilian Involvement in Armed Conflict, documents different types of what it calls civilian “involvement” in armed conflict, and individuals’ own understandings of the applicable law that defines their activities, status, and protection.
Curiously, however, the report deliberately eschews an international humanitarian law (IHL) analytical framework, in order to facilitate its aim of neutrally informing ongoing legal-military debates about the contours of direct participation in hostilities so as to better protect civilians. In its brisk “legal background,” the report argues that the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities “did not reflect a consensus” and that “experts and policymakers have struggled to formulate clear and precise rules that determine which civilians fall within the category of direct participants in hostilities.” Hence, the report states, the need “to inform this debate” by documenting civilians’ own experiences and “involvement” in conflict. CIVIC, which “is focused on helping civilians caught in the midst of armed conflict,” hopes that doing so will ultimately help better protect civilians.
[The] study does not call for the revision of the law governing direct participation in hostilities. Neither does it intend to push the debate in any particular direction. Because of this, the study does not filter the perspectives documented in this report through the lens of IHL, nor does it organize civilian experiences according to existing legal categories.
By stepping away from the academic and legal debate on this issue and instead providing documentary and contextual bases for future discussions of civilian involvement in war, CIVIC hopes this study will lead experts and policymakers to take a more comprehensive view of the realities faced by civilians during war and assess ways to enhance civilian protection.
Yet because of this neutral approach the report is interesting not only for what it says, but because of its own future: As this self-declared neutral object enters the fray, will powerful state actors use its findings to support an interpretation of direct participation in hostilities that safeguards or increases civilian protection, or abuse the findings to justify the opposite effects? The following briefly considers the risks of the report’s findings being manipulated due to abusive state strategies and practice, with particular attention to the case of Israel.
The “Fog” of Law
One state tactic has been to argue that IHL is inadequate to contemporary urban and asymmetrical conflicts — a claim that persists despite expert and thorough refutations. When it comes to direct participation in hostilities, it is true that specific “bright line” rules, such as an exhaustive list of activities that constitute direct participation and a set of time frames and means by which civilian immunity can be regained, may not exist. Yet fundamental IHL principles, supported by accumulated state practice, do help delineate the scope and nature of at least some activities that would result in civilians’ loss of immunity from attack.
These principles are broadly consistent with a point made by Michael Schmitt: “[T]he approach to direct participation in hostilities which best comports with the purposes of humanitarian law is one which assesses the criticality of the act to the direct application of violence against the enemy.” It is widely accepted (for example, here and here) beyond the ICRC’s Interpretive Guidance that direct participation in hostilities requires causation between the contributing act performed by a civilian and harm to the enemy, which excludes peripheral contributions and certain types of professionals, who can become “indirectly” involved in the war effort (e.g., journalists, medics, pharmacists, and cooks).
With the purpose of documenting the “numerous and complex” ways that civilians can become “involved” in conflict, the CIVIC report adopts an inclusive methodology, and aims “to capture the experiences and perspectives of all those who fall somewhere between bystanders and combatants under Article 43 of the first Additional Protocol to the Geneva Conventions” (emphasis added).
In legal terms, the activities included under “involvement” in this case study could be classified as non-participation, indirect participation in hostilities, direct participation in hostilities, or exercising a continuous combat function. Because the parameters of these classifications are contested and can be controversial, the study intentionally avoids classifying modes of involvement.
The report intends its catch-all (IHL-less) category of “civilian involvement in hostilities” to capture “the full spectrum of interviewees’ perceptions and experiences of involvement,” and “to demonstrate the number and diversity of ways in which civilians can become involved in conflict,” including “[s]ome modes of involvement [that] are purely civilian.” Indeed, it is extraordinarily hard to imagine any reasonable claim of direct participation in hostilities in relation to several actions of the civilians interviewed (e.g., for political party membership and the provision of food, medical services, and media coverage to armed groups in the section on Gaza).
Given state practices that over-include civilians as targetable, the risk is simply that unscrupulous readers will abuse the report’s inclusive methodology that avoids IHL categorizations: Deviant military actors may abuse the report’s findings — which bundle together instances of civilian activity, direct participation, and potential borderline cases without distinction — as “evidence” that civilians’ interactions with contemporary armed conflicts are so diverse and mind-bogglingly complex that only military officials can understand ‘direct participation in hostilities’ correctly. CIVIC and other concerned parties should be vigilant against such potential abuses of the report’s findings.
Exploiting “Gray Areas”
In fact, there is a line of argument that in effect seeks to reverse the presumption of civilian status by broadly interpreting the activities that subject civilians to attack, on the theory that doing so will better protect civilians. The Israeli Supreme Court, quoting Schmitt in its judgment on “Targeted Killings,” states:
Gray areas [in the IHL rules on civilian status and direct participation in hostilities] should be interpreted liberally, i.e., in favor of finding direct participation. One of the seminal purposes of the law is to make possible a clear distinction between civilians and combatants. Suggesting that civilians retain their immunity even when they are intricately involved in a conflict is to engender disrespect for the law by combatants endangered by their activities. Moreover, a liberal approach creates an incentive for civilians to remain as distant from the conflict as possible – in doing so they can better avoid being charged with participation in the conflict and are less liable to being directly targeted.
Broadening the category of targetable civilians thus places the logic of deterrence above, or at least on par, with that of civilian protection. Schmitt suggests that if a civilian is “by definition already participating, on his or her own volition, in the conflict in a manner direct enough to raise questions,” he or she should therefore “bear the burden of risk, rather than the combatant who will be harmed by the action.”
The case studies in the CIVIC report include examples where civilian “involvement” in conflict is clearly involuntary and cannot be said to amount to direct participation. Yet given the reality of the legal arguments just discussed and of actual state practice, the risk is that states will abuse the complexity and fluidity of “involvement” highlighted by the CIVIC report to advance disingenuous legal arguments purporting to justify the unlawful expansion of their target-banks.
The danger that states will seek to shift the burden of conflict onto civilians precisely by exploiting the direct participation debate as a purported legal “gray area”, is exemplified by Israel’s targeted killings policy. The former head of the IDF legal department, Daniel Reisner, argued that when Israel first adopted the policy, it attracted censure, but that this censure decreased over the years, indicating in his view that international law “progresses through violations.” Reisner’s comment is instructive in terms of understanding, as Feldman and Blau argue, “[t]he dilemma of the gray areas and ILD’s [IDF’s international law division] attempts to discover untapped potential in international law.”
As such, it is expected that CIVIC and others concerned with civilian protection should guard against attempts to make international law appear unclear or indeterminate in the face of clear violations. As a case-in-point, some reports indicate that Israeli forces in Gaza at times simply assumed that any person present in certain areas was directly participating in hostilities — clearly a gross distortion and expansion of the category. A compilation of “testimonies” by Israeli soldiers and officers who took part in the 2014 Gaza hostilities, published by the Israeli veterans’ group Breaking the Silence, allege that Israeli forces have — according to a number of soldier testimonies — considered civilians “involved” or otherwise targeted them merely because they were in the wrong place at the wrong time — “the saying [amongst Israeli forces] was ‘there is no such thing there [in Gaza] as a person who is uninvolved.’”
Despite the unfortunate resonance of the term “involvement” in Israeli military parlance, practitioners should point to the CIVIC report as evidence that practices targeting civilians who are clearly not directly participating do not fall into a legal “gray area”, and may in fact erode incentives for civilians to respect IHL. This is certainly one of the reasons why civilians affected by armed conflict in Gaza repeatedly emphasized to CIVIC that they have little faith, based on experience, that their civilian status provides immunity from targeting by the Israeli military.
Whither Civilian Agency?
The report’s findings about the wide variety of ways civilians perceive themselves as “involved” in conflict are also susceptible to misuse, insofar as some parties to conflicts have sought to blur the lines between involuntary involvement and deliberate, “crucial,” concrete participation in hostilities. As highlighted by the principal author
First, our interviewees told us that on the whole, they are heavily involved in conflict. The modes of involvement they discussed were numerous and complex, and some, such as the “journalist” who exclusively documented the missions completed by Islamic Jihad in Palestine, were unexpected. Many told CIVIC that there is simply no way not to be involved in war — it affects every area of life.
Second, while we might assume that people who live through conflict would have a choice of whether or not to become involved, this research suggests that some are forced to become involved, others fall into involvement, and some become involved because they believe they have no other choice.
The report aptly observes that in some cases civilians feel that they are subject to circumstantial coercion and socio-political pressures to support the fighting forces. However, it is critical to note that the legal requirement for civilian direct participation in hostilities does not hinge on the individual’s self-perception or subjectivity (documented in the CIVIC report). Rather, it involves a two-part test, which requires both that their actions be “crucial” to and concretely and causally linked to military operations, and that the individual made an objectively-determinable free choice to make such a contribution.
The fact that a civilian may lack agency is a far cry from the choice and action that are legally required to direct participation in hostilities. Blurring the distinction between a civilian who “chooses” to directly participate in hostilities and one who becomes “involved” in hostilities, even unintentionally, threatens to dispose of the operative criterion of “choice” required to establish direct participation in hostilities. The result is a proliferation of claims that civilian casualties were the inevitable, tragic collateral damage of urban or asymmetrical warfare, often compounded by allegations that civilians acted as voluntary “human shields”.
In order to legally ascertain direct participation in hostilities, it may be necessary to analyse the nature of the relationships between “involved” civilians and armed groups — and hence, to assess the armed group’s organizational structures, command chain, recruitment and service procurement protocols, resources and social status, among other factors. By the same token, such assessments are also needed to ascertain whether or not an armed group is responsible for failing to protect civilians in a case where the group is attacked and civilians are harmed, including those who may have serviced the group indirectly or involuntarily.
By establishing a parallel analytical framework to that of IHL and avoiding any policy recommendations or prescriptions for military action or strategy, the CIVIC report raises the question of whether and how providing granular, local details about the way that war affects civilians can enhance their protection. Janina Dill, who is researching the views of various stakeholders on proportionality, provides an answer by analogy:
Systematizing the views people develop from the perspective they in fact have on war will be useful, I hope, for military commanders, not as the one and only touchstone of proportionality, but as an important data point to inform their decisions. Victory beyond the battlefield, in the sense of achieving a political or morally relevant goal, in the 21st century depends in part on various audiences’ perceptions of legitimacy. As one former commander put it: “it is all about winning the narrative.”
The views of laypeople on the issue of civilian protection are equally meaningful, both for savvy military commanders and, as Dill argues, to achieve “a broader societal consensus on the underlying legal issues.”
CIVIC’s presentation of civilians’ views on how they are affected by or “involved” in hostilities intends to give policy-makers a more comprehensive view of conflict, and may similarly achieve positive social effects. However, given the deviant practice and discursive campaigns led by some states and the potential for abusive actors to coopt the perspectives of individuals who consider themselves civilian despite being “involved” (and not directly participating) in conflict, it is imperative that projects intended to enhance the protection of civilians reemphasize and affirm the application of relevant IHL parameters on direct participation in hostilities, including the presumption in favor of civilian status, while closely monitoring and accounting for the “uptake” of any extra-legal categories, such as that of civilian “involvement” in conflict. Indeed, by contrast to CIVIC, Dill affirms that her multi-faceted research, which takes as a starting-point the category of proportionality (without re-imagining it), also “takes into account the views of military experts.”
Now that the CIVIC report has entered the fray, it will be worth observing whether its findings are abused to further deviant practices by relaxing the boundaries of legality. Given the high likelihood for such hijacking, the authors — notwithstanding their intention to avoid opining on what they appear to stigmatize as unresolved legal issues — should consider complementing the report with an explanatory note that accounts for the law on direct participation and loss of civilian protection.