The Effect of New Technology on the Concept of “Direct Participation in Hostilities” in International Humanitarian Law
DOI:
https://doi.org/10.25007/ajnu.v1n1a1929Keywords:
Hostilities, Direct Participation, Additional Protocols, Combatants, Armed Conflict, New Technology.Abstract
ABSTRACT
This Research is about participation in hostilities particular civilian participation in international and non-international armed conflict. According to the International Humanitarian Law when civilians directly participate in hostilities, they loss their protection right.
Over recent decades, because of the continued advancement of technology, the nature of warfare has changed significantly, the current war fronts are something different from the earlier battle field. Modernization of the world differentiates the strategies of wars, methods of wars and planning of achieving the military benefits. Therefore, the earlier laws do not fit with the current war front.
It is not true to say that only Direct Participation in Hostilities (DPH) can respond adequately to current forms of participation in conflicts because nowadays there are various types of participation in wars that may not fall within the concept of direct participation such as indirect participation in hostilities. Consequently, if applied the condition of direct participation to regard a person as combatant then what will be position of people who do not directly take part such as service men.
To answer the research questions this academic paper will explains the notion of DPH. Also, this research focuses on the elements of the DPH and then the effect of new technology on the concept of DPH in International Humanitarian Law will be argued.
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. Bibliography
1 Books
Dinniss H, Cyber warfare and the laws of war (Cambridge studies in international and comparative law, Cambridge University Press, New York 2012).
Hensel H, The Principle of Civilian Protection and Contemporary Armed conflict. The law of armed conflict: constraints on the contemporary use of military force (1st edn, Ashgate, England 2007).
Lauterpacht H, The Law of Nations and the Punishment of War Crimes (21 British Yearbook of International Law 1944).
Schmitt N, Direct Participation in Hostilities and 21st Century Armed Conflict (2004). Available at: Schmitt: " Direct Participation in Hostilities" and... - Google Scholar [Last Accessed 15 July 2022].
Schmitt M, Essays on Law and War at the Fault Lines (T.M.C Asser Press, The Hague, the Netherland 2012).
McCoubrey H, International humanitarian law: modern developments in the limitation of warfare ( 2nd ed. Ashgate, Dartmouth 1998).
Verri P, Dictionary of the International Law of Armed Conflict (ICRC, Geneva, Switzerland 1992). Available at: file:///C:/Users/2020/Downloads/0453_002-ebook.pdf [Last Accessed 25 July 2022].
2 Journal Article
Ambos K and Alkatout J, "Has ‘Justice Been Done’? The Legality of Bin Laden's Killing Under International Law" (2012) 45 Israel Law Review.
Dunlap Jr H and General M, "Perspective for cyber strategists and law for cyber war" (2011) 5 Ebsco Host Connection. Available at:https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2992&context=faculty_scholarship [Last Accessed 13 August 2022].
Christensen E, "The dilemma of direct participation in hostilities" (2010) 19 (2) Journal of Transnational Law & Policy.
Dinstein Y, "The Principle of distinction and cyber war in international armed conflicts" (2012) 17 Journal of Conflict and Security Law.
Fenrick W "The targeted killings judgment and the scope of direct participation in hostilities" (2007) 5 (2) Journal of International Criminal Justice.
a. Gallahue P, "Targeted killing of drug lords: traffickers as members of armed opposition groups and/or direct participants in hostilities" (2010) 1 International Journal on Human Rights and Drug Policy. Available at: https://www.hrdp.org/files/2013/12/12/Human_Rights_and_Drugs_Vol_1_Patrick_Gallahue.pdf [Last Accessed 25 July 2022].
b. McDonald A, "The challenges to international humanitarian law and the principles of distinction and protection from the increased participation of civilians in hostilities" (2004) [Online]. Asser Institute. Available at: http://www.asser.nl/upload/wihlwebroot/documents/cms_ihl_id70_1_McDonald%20DPH%20-%20April%202004.doc[Last Accessed 16 August 2022].
Melzer N, "The ICRC’s clarification process on the notion of direct participation in hostilities under international humanitarian law (2009) 103 American Society of International Law. Annual meeting American society of international law.
McLaughlin R, "The law of armed conflict and IHL: some paradigmatic differences and operational implications" (2010) 13 Year book of international and humanitarian law, Asser Press.
Melzer N, "Keeping the balance between military necessity and humanity: A response to four critiques of the ICRC’s interpretive guidance on the notion of direct participation in hostilities. 14th annual law symposium: a special tribute to Andreas Lowenfeld" (2010) 42(1) New York university journal of international law and politic.
a. Nøstbakken A, "Consequences Under International Humanitarian Law for Civilians Who Take a Direct Part in Hostilities" (2011) Master Thesis. [Online]. The University of Berge. Available at: https://bora.uib.no/boraxmlui/bitstream/handle/1956/5686/91853667.pdf?sequence=1&isAllowed=y [Last Accessed 17 July 2022]
Schmitt M, "Deconstructing direct participation in hostilities: the constitutive elements",14th annual law symposium: a special tribute to Andreas Lowenfeld (2010) 42. New York University Journal of International Law and Politics.
Schmitt M, "Wired warfare: Computer network attack and jus in bello" (2002) 84 RICRjuiN .
a. Sivachandran N and Shayanthan T, "Contemporary Challenges on Definition of Civilian in Hostilities in the face of New Technologies" (2019) 9 International Journal of Scientific and Research Publications. Available at: file:///C:/Users/2020/Downloads/Contemporary_Challenges_on_Definition_of_Civilian_.pdf [Last Accessed 15 August 2022].
Turns D "Cyber warfare and the notion of direct participation in hostilities" (2012) 17 Journal of Conflict and Security Law.
Watkin K, "Opportunity lost: organized armed groups and the ICRC direct participation in hostilities" (2009) 43 Interpretive Guidance. New York University Journal of International Law and Politics.
3 Conventions and Legal Papers
Article 43(2) of the Additional Protocol (I) to the Geneva Conventions, 1977.
Article 1(2) of the Additional Protocol (II) to the Geneva Conventions, 1977.
Article 31(1), Vienna Convention on the Law of Treaties, 1969.
Background Doc. DPH 2004; Report DPH, 2005.
Customary IHL, Rule (1). Available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul [Last Accessed 26 July 2022].
Dormann D, Computer network attack and international humanitarian law. Paragraph 2. How does law protect in war?, Principle of distinction - How does law protect in war?. Available at: https://casebook.icrc.org/law/principle-distinction [Last Accessed 15 July 2022].
Iraqi Al-Amal Association, Sexual and Gender – Based Violence in Iraq 2003 – 2018: A Maping Report (May 2020). Available at: https://paxforpeace.nl/media/download/sgbv-mapping-report-in-iraq-nap-en.pdf [Last Accessed 1 August 2022].
ICRC, Direct participation in hostilities: questions & answers (2009) Available at: https://www.icrc.org/en/doc/resources/documents/faq/direct-participation-ihl-faq-020609.htm [Last Accessed 10 August 2022].
ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva 2009) Available at: https://casebook.icrc.org/case-study/icrc-interpretive-guidance-notion-direct-participation-hostilities [Last Accessed 10 August 2022].
Khanal P, The constitutive elements of direct participation in hostilities: interpretive guidance, 2011, Social Science Research Network. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1804984 [Last Accessed 8 August 2022].
Winther P, Military influence operations & IHL: Implications of new technologies (2017). Available at: https://blogs.icrc.org/law-and-policy/2017/10/27/military-influence-operations-ihl-implications-new-technologies/ [Last Accessed 16 August 2022].
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