Clarifying the notion of direct participation in hostilities

The core issue in the Ishrat Jahan & Co. case is that Ishrat Jahan and her friends were innocent of any wrongdoing, intended or otherwise and yet they were killed by police personnel specifically authorised to kill if necessary, in the course of doing their duty. – In this case translated as innocents picked up and shot so that involved police personnel may be congratulated and possibly be rewarded.

The Shri SP Tamang report has not been published to the public. Nor has anybody made public the central government affidavit confirming Ishrat Jahan & Co’s links to the Lashkar-e-Toiba. All that we know today is through news-reports and statements from public personnel.

There are also reports that suggest that the Lashkar-e-Toiba, by itself or through it’s “charitable” arm owned Ishrat Jahan and her friends as members first in 2004 and denied the same later in 2007 and apologized for the mix-up or wrong reportage. The latter now is being touted as proof of innocence. The following questions might be asked;

1. Why would a terrorist organization own a group of accused as their own post their deaths?

2. Why would the same organization retract three years after that fact?

Observation – Why should this not be seen as a clever tactic to discredit a government whose officials killed the accused? Especially when it was well known that “human rights” organizations had already assumed the innocence of Ishrat Jahan and Co. this being an addition to the ongoing anti-Modi campaign.

Now let’s place all of that aside and take up the question of who is the “accused”?

When a hostile terrorist organization, not necessarily officially aligned with any hostile State  is proscribed by the defending State for waging war against it – what does this mean? No State “proscribed” the armed forces of a hostile State. Even those of that State’s armed forces that may wage war upon it. So what is implicit in the proscription is the fact that citizens should know that the proscribed organization must not be obliged with their membership. If this rule is flouted, then the State can act against such citizens.

Well, the crux is at hand. How should the defending State act when confronted with hostile members of a proscribed organization charged with “waging war”(?) against it?

While demanding a ban on Jamaat-ud-Dawa (incidentally, this is the very same organization whose apology for “mis-reportage” in the Ishrat Jahan & Co. case is now being cited as evidence of innocence.) – the Hindusthan government made the following plea

New Delhi made it clear that the “nexus between State — or elements within the State — and terror outfits” must be broken and groups or individuals that indoctrinate, plan and finance terror have to be uprooted along with other measures. “Terrorists are the enemy of the people. When actions of terrorist groups are used to serve the political interests of States, a deadly combination emerges. A terror machine is created,” Ahmed said.  

Underlining other terror attacks, including the ones in Jaipur, Delhi and Ahmedabad, Ahmed said: “Terrorism does not happen by chance or at random. Terrorism is planned; terrorism is financed; it requires meticulous organization; it needs arms; and requires safe havens. When it occurs, the world is shocked. What is not easily visible is the back-stream of terrorist acts. Mumbai’s case is clear. The back-trail is marked and definite, but in cases where terrorists’ acts are aided and abetted to cover their tracks, all of us separately and together must ensure that they are discovered and the terrorists are brought to justice.”(End Quote)

How are the involved “discovered”? Post discovery and seizure, what kind of *rights* do the “involved” possess? Do they possess any at all? Should they – who are not abiding of any rules of combat, who kill innocent non-combatants while falsely claiming to be non-combatants – should such personnel have any *rights* when seized with or without arms going about their lethal business? After all, it is in the nature of this new kind of war to act in stealth. Should defending States still abide by old norms or conventions or should they now change their methods before it is too late?

Are we at war? Even though we seem to be flailing our arms wildly..we still don’t seem to be accepting of the simple fact that we are indeed, at war. This causes us to not be prepared accordingly. A war entails a declaration of intent to wage war. There can be enemies who will not declare their intent in language that is Stately. However, isn’t there enough to see that war is indeed being waged? That people (combatants and otherwise) are being killed and property being destroyed? That structures of the State are being targeted? That there is a clear strategic goal that the hostile force is working towards?

Some organizations have discussed this question.

– Namaste

Clarifying the notion of direct participation in hostilities

International humanitarian law hinges on the principle of the distinction between combatants, whose function is to conduct hostilities during armed conflict, and civilians, who are presumed not to be directly participating in the hostilities and, therefore, entitled to full protection from attack. They lose this protection only if, and for as long as they “directly participate in hostilities”.After six years of expert discussions and research, the ICRC has published the “Interpretive Guidance”, which aims to clarify the meaning and consequences of direct participation in hostilities under international humanitarian law (IHL).

From time immemorial the civilian population has contributed to the war effort, be it through the production and supply of weapons, equipment, food, and shelter, or through economic, administrative, and political support. Typically, however, such activities were far-removed from the battlefield and civilians only exceptionally took part in actual combat.

Circumstances have changed markedly in recent decades, blurring the line between the battlefield and areas of civilian habitation. The proximity of civilians to military operations and their increased assumption of traditionally military roles lead to confusion as to the implementation of the principle of distinction. This is compounded by the increasing outsourcing of military functions, giving private contractors, civilian intelligence personnel, and other civil servants a growing role in the conduct of armed conflict.

A further problem arises where armed actors do not distinguish themselves from the civilian population, for example during undercover military operations or when they “act as farmers by day and fighters by night”. Consequently, civilians are more likely to fall victim of erroneous or arbitrary targeting, while military personnel – unable to properly identify their adversary ­– are vulnerable to attacks by individuals who are indistinguishable from civilians. All this underscores the importance of distinguishing not only between civilians and military personnel, but also between civilians who do not directly participate in hostilities and, those who do.

While IHL stipulates that civilians be protected against direct attack, “unless and for such time as they take a direct part in hostilities”, neither the Geneva Conventions nor their Additional Protocols spell out what conduct constitutes direct participation in hostilities.
In its efforts to redress this situation and to protect the civilian population from erroneous or arbitrary targeting, the ICRC initiated an informal process of research and consultation with the aim of clarifying three key questions: (1) Who is considered a civilian for the purposes of conducting hostilities? (2) What conduct amounts to direct participation in hostilities? (3) What modalities govern the loss of civilian protection against direct attack?

Five meetings held between 2003 and 2008 in The Hague, in the Netherlands, and Geneva, Switzerland, brought together up to 50 legal experts from military, governmental and academic circles, from international organizations and NGOs, all participating in their private capacity. Based on the discussions held and the research conducted in the course of the process, the ICRC drafted its “Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL”. This document does not necessarily reflect a unanimous or majority opinion of the participating experts. However, it provides the ICRC’s official recommendations on how IHL relating to the notion of direct participation in hostilities should be interpreted in contemporary armed conflict.

Reading material – Here and here

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