Direct Participation in Hostilities as a War Crime: America's Failed Efforts to Change the Law of War
Law of War
Direct Participation in Hostilities as a War Crime: America's Failed Efforts to Change the Law of War
David J. R. Frakt
David J. R. Frakt, Direct Participation in Hostilities as a War Crime: America's Failed Efforts to Change the
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DIRECT PARTICIPATION IN HOSTILITIES AS
A WAR CRIME: AMERICA’S FAILED EFFORTS
TO CHANGE THE LAW OF WAR†
David J. R. Frakt*
I. INTRODUCTION
In recent armed conflicts, there have been a large number of
participants who have engaged in hostilities but do not qualify as
prisoners of war (“POW”) under the Geneva Convention III, Article 4.
That is, they are not “[m]embers of the armed forces of a Party to the
conflict” or qualifying militia, volunteer corps, organized resistance
movements, or levee en masse.1 Such persons are often referred to as
“unprivileged belligerents” because they are not entitled to the privilege
of being treated as POWs if captured, nor are they entitled to combatant
immunity for lawful acts of war—under POW status.2 A synonym for
unprivileged belligerents that has gained widespread use over the past
decade is “unlawful combatants.”3 While some unprivileged belligerents
†
An early manuscript of this Article was awarded the Lieber Society Richard R. Baxter
Military Prize Certificate of Merit at the 2012 Annual Meeting of the American Society of
International Law (“ASIL”). The Baxter Prize is a yearly competition which recognizes “a
paper that significantly enhances the understanding and implementation of the law of
war” “by an active member of the regular or reserve armed forces.” The Lieber Society
“serves as ASIL’s focal point for the study and dissemination of the law of armed conflict,
or international humanitarian law, and other public international law related to the
conduct of military operations.”
* J.D. cum laude, Harvard Law School, Associate Professor of Law, Dwayne O. Andreas
School of Law at Barry University. The Author wishes to thank his research assistants Ed
Fore and Lacy Papadeas for their valuable assistance. The views expressed herein are
solely those of the Author and do not reflect the views of the Air Force or the Department
of Defense.
1 Geneva Convention Relative to the Treatment of Prisoners of War, art. IV, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; see INT’L COMM. OF RED CROSS, INTERPRETIVE
GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL
HUMANITARIAN LAW 20 (2009), available at http://www.icrc.org/eng/assets/files/other/
icrc-002-0990.pdf [hereinafter GUIDANCE].
2 GUIDANCE, supra note 1, at 20; see Major Richard R. Baxter, So-Called ‘Unprivileged
Belligerency’: Spies, Guerrillas, and Saboteurs, 28 BRIT. Y.B. INT’L L. 323, 328 (1951) (defining
unprivileged belligerents as “persons who are not entitled to treatment either as peaceful
civilians or as prisoners of war by reason of the fact that they have engaged in hostile
conduct without meeting the qualifications established by Article 4 of the Geneva Prisoners
of War Convention of 1949”); Kenneth Watkin, Warriors Without Rights? Combatants,
Unprivileged Belligerents, and the Struggle Over Legitimacy, Program on Humanitarian Pol’y &
Conflict Res., Harv. U., Occasional Paper Series No. 2, Winter 2005, available at
http://www.hpcrresearch.org/sites/default/files/publications/OccasionalPaper2.pdf.
3 The term “unlawful combatant” is misleading in that it implies (incorrectly as
discussed in this Article) that it is a war crime to engage in combat. See infra Part III.
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are essentially full-time combatants belonging to organized armed
groups, there have also been significant numbers of individuals who
participate in armed conflicts on a sporadic or temporary basis, often
while maintaining other civilian occupations. The phrase
“farmer-byday, fighter-by-night” has frequently been used to describe such
persons.4 The official term for them under international humanitarian
law (“IHL”) is “Direct Participants in Hostilities” (“DPH”).
The involvement of civilian DPHs in armed conflicts is a vexing
problem for the professional armed forces who oppose them, primarily
because such persons typically do not distinguish themselves (such as by
wearing a uniform) from the civilian population with which they
associate. Although a good deal of effort has been devoted in recent
years to discussion of the DPH problem, there is much that is still
unclear about their legal status and how the laws of war apply to them.
One area of agreement about DPH is that: “Civilians who take up
arms . . . lose their immunity from attack during the time they are
participating in hostilitie (...truncated)