QUESTION 1: CIRCUMSTANCES IN WHICH MEMBERS OF ARMED GROUPS CAN BE

TARGETED IN A NIAC

In the context of non-international armed conflict (NIAC), i International Humanitarian Law (IHL)
requires all parties to distinguish between combatants and civilians, and to only target combat-
ants directly participating in hostilities. ii The principle of distinction and the requirement for direct
participation in hostilities are fundamental concepts that apply in most cases. iii The principle of
distinction does not allow for the targeting of civilians who are not directly participating in hostili-
ties, even if they are associated with an armed group. iv This is pertinent in order to prevent the
“butchery of human beings”, as Henry Durant put it:

"In modern times, many weapons have been invented to facilitate the butchery of human beings.
Should this state of affairs continue, it seems inevitable that bursts of uncontrollable rage will in-
creasingly occur among nations, races and social classes, and that our unhappy earth will be
burnt with the fire of many battles in the future, whose horror will make even the strongest heart
tremble. Is there no way out of this terrible dilemma? Must we always resort to organised mass
slaughter to resolve our differences? Surely there must be a better way! Surely there must be a
way to prevent combat between civilised nations and to protect civilians in times of conflict!” v

In a NIAC,vi the direct and continuous participation in hostility to a given threshold robs members
of organised armed groups of their civilian protection. vii As such, these members become legiti-
mate targets.

Human rights NGOs have expressed concern about the broad definition of who is a "legitimate
target" applied by State armed forces in the context of the ongoing non-international armed con-
flict. To ensure compliance with IHL, the definition of a legitimate target should be strictly limited
to members of organised armed groupsviii who are continuously and directly participating in hos-
tilities.ix

Most non-state actorsx comprise not only of organised armed groups but also of civilian sympa-
thisers, administrative and political wings, and the like. These civilian sympathisers may some-
times take part in hostility. xi These civilians, for the purpose of the principle of distinction, cannot
be regarded as members of an organised group. This buttresses the point that only members of
the actual organised armed group (the fighting force of the non-state actor) lose their civilian
protection.

Therefore, it is recommended that the Ministry of Defence adopt a strict interpretation of the
principle of distinction and ensure that its armed forces only target individuals who are continu-
ously and directly participating in hostilities. Additionally, the Ministry of Defence should provide
clear guidelines to its armed forces on how to distinguish between combatants and civilians in
the conduct of hostilities.

In conclusion, it is essential that all parties to a non-international armed conflict comply with the
principles of distinction and proportionality to protect civilians and minimise harm to all parties
involved. The Ministry of Defence should take steps to ensure that its armed forces are fully
aware of their obligations under IHL and adopt a strict interpretation of the principle of distinction
in the conduct of hostilities.
i Two major types of conflicts are recognised by IHL: International Armed Conflict - occurring between belligerent States -
and Non-international armed conflict - between a State and a non-state actor(s). “The vast majority of contemporary armed
conflicts are waged, not between States, but between States and organised armed groups or between such groups – they
are non-international in character.” - N. Melzer, International Humanitarian Law: A Comprehensive Introduction (Hart Publish-
ing 2016) Chapter 2, 66.

ii Common Art 3 of the 1949 Geneva Conventions; AP II, Art 13; Prosecutor v Tadic (Trial Chamber) (Judgment) (Interna-
tional Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-94-1-T) [1997] 35 ILM 32.

The direct attack/targeting of the civilian population is considered a war crime by virtue of Art 8(2) of the Rome Statute of the
International Criminal Court, 1998.
iii CIHL, Rule 1.
iv Ibid note 2.
v Henry Durant, Un souvenir de Solferino (A Memory of Solferino) (1862) Ch.3. These words echo the fundamental basis for
which the principles of International Humanitarian Law (That of Distinction, Proportionality, and Precaution) exist.
vi “A non-international armed conflict within the meaning of common Article 3 does not necessarily have to involve a govern-
ment; it can also take place entirely between organised armed groups, a scenario that is particularly relevant in areas of
weak governance, such as so-called 'failed States.’” N. Melzer, International Humanitarian Law: A Comprehensive Introduc-
tion (Hart Publishing 2016) Chapter 2, 66.

International Humanitarian Law governs the conduct of hostilities between belligerent actors in both types of armed conflicts.
As a matter of principle, IHL recognises a cardinal distinction between belligerent parties and the civilian population. The ba-
sic principles of IHL requires that parties distinguish between “combatants” and the “civilian” population. While combatants
are legitimate military targets, all attacks on the civilian population are prohibited under the rules of IHL. A problem arises
with the above classification: while belligerents in an International Armed Conflict enjoy “Combatant privileges”, non-state ac-
tors in a Non-International Armed Conflict do not enjoy combatant status.
vii AP I, Art. 51(3); AP II, Art 13(3); CIHL, Rule 6.
In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria:

-The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to
inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and;
-there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military opera -
tion of which that act constitutes an integral part (direct causation), and;
-the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detri -
ment of another (belligerent nexus). - N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under Interna-
tional Humanitarian Law, ICRC, Geneva, 2009, p. 22.

See also, ICC, Prosecutor v Lubanga (Trial Judgment) ICC-01/04-01/06 (14 March 2012) para 207.
viii It should be noted that an armed group must meet the minimum requirements of: Organisation, hierarchy, command
and control structures, and the ability to carry out coordinated military operations. Haradinaj et al (IT-04-84-T), [2008] ICTY
30, (3 April 2008), Trial Chamber I.
ix The use of force against civilians who are not directly participating in hostilities is prohibited under IHL and may constitute
a war crime. Art.8 Rome Statute. CIHL, Rule 1.
x (i.e., insurgents or rebellions as a whole).
xi “on a on a spontaneous, sporadic or unorganised basis.” N. Melzer, International Humanitarian Law: A Comprehensive In-
troduction, op.cit. (note 6), 126.