– DISTINCTION AMONG PERSONS

1. This chapter discusses the question of how a party must distinguish between persons who may and may not be targeted.

2. States should disclose the legal justification for their actions, in accordance with their understanding of the principle of distinction between combatants and those noncombatants not directly participating in hostilities. Indeed, states can mitigate the effects (and exploitation) of the lack of clarity on this issue by providing a clear and timely explanation of the legal basis for their actions. This serves a threefold objective:

a. Promoting the rule of law and adherence to IHL;

b. Furthering the interests of states by assuring public opinion that they are not acting unlawfully and arbitrarily;

c. Asserting a legal justification amounts to a firm expression of opinio juris, which serve to clarify, promote and reform international law.

3. Regarding the issue of the status of non-state fighters and the concept of continuous combat function (CCF), states should work according to the following understanding of the prevailing legal situation:

a. There is some acceptance that on the question of membership in organized armed groups, the “status approach” prevails over the

“civilian approach.” In essence, there are two different approaches to the legal standing of those fighting on behalf of non-state actors.

The first is to view these fighters as civilians (the civilian approach), and then to assess whether their actions fall within the ambit of the notion of “direct participation in hostilities” (DPH), as the term appears in Article 51(3) of API. If the actions do qualify as DPH, then “for such time as” the fighter takes a direct part in hostilities, the fighter may be targeted; this was the approach preferred by the Israeli Supreme Court in the Targeted Killings case. The second option is to construe Common Article 3 of the Geneva Conventions as attributing a legal meaning to the term “armed forces”—which the Article can be read as inferring reference not only to “armed forces”

of states but also to “armed forces” of non-state actors—resulting in the recognition of a different status for members of such armed forces (the status approach).

b. There is considerable agreement that membership in an organized group, however determined, results in a wide temporal loss of protection, beyond the usual temporal scope of loss of protection due to direct participation in hostilities;

c. There is strong disagreement regarding the nature of the concept of CCF as suggested by the ICRC;

d. A possible bridge between the CCF concept and its alternative could be the realization that different armed groups differ according to their level of organization: if the level of organization is comparable to the state’s armed forces, they might be equally targetable; however, any such determination with regard to specific groups must be made in a way that allows for scrutiny;

4. Regarding the issue of the scope of the notion of DPH (that applies both to civilians occasionally taking part in fighting and fighters who are more continuously part of an organized armed group), states should work according to the following understanding of the prevailing legal situation:

a. There is considerable agreement that DPH requires a threshold of harm, direct causation and belligerent nexus. However, the application of these standards is contested.

b. The question of voluntary human shields remains controversial among those that argue that such action crosses the threshold of harm to constitute DPH, and those that find this proposition impossible.

c. Regarding the requirement of direct causation, there is wide agreement that “general participation” in a war effort does not amount to DPH;

conversely, there remains significant disagreement between those that endorse the “one causal step” approach to DPH (endorsed by the ICRC) and those that argue for a wider standard, which goes beyond the “tactical level” of warfare.

d. Concerning the temporal requirement, it remains disputed whether DPH, in instances that do not amount to membership in an organized armed group (the CCF criterion), encompasses only the preparation, deployment and return from the specific act (the “revolving door”

concept), or rather to an entire “chain of acts,” as suggested in the Israeli Supreme Court case on Targeted Killings (“continuous DPH”).

5. Regarding the issue of targeting of leadership, states should work according to the following understanding of the prevailing legal situation:

a. Replace the distinction between military and political wings, and adopt the functional approach of DPH or CCF towards dual military-political targets.

6. Regarding the issue of preference of arrest over killing of civilian DPH, states should work according to the following understanding of the prevailing legal situation:

a. The approach of the Israeli Supreme Court and the ICRC Guidance has been heavily criticized by military legal advisors;

b. However, regarding the proponents of the preference of arrest, there is an agreement that it does not inject a pure “law enforcement”

approach into IHL, but rather serves as a reflection of the core principles of necessity and humanity.

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c Among t he pr oponent s of t he idea, t her e is gener al agr eement

that non-lethal actions are more feasible in instances in which the state exercises control, such as in situations of occupation.