Direct Participation in Hostilities as a War Crime: America's Failed Efforts to Change the Law of War

Valparaiso University Law Review, Sep 2012

By David J. R. Frakt, Published on 09/29/12

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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 Follow this and additional works at; https; //scholar; valpo; edu/vulr - This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at . 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. 729 730 [Vol. 46 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)


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David J. R. Frakt. Direct Participation in Hostilities as a War Crime: America's Failed Efforts to Change the Law of War, Valparaiso University Law Review, 2012, pp. 729-764, Volume 46, Issue 3,