Limits on the Use of Force against those Directly participating in Hostilities Clause Samples

Limits on the Use of Force against those Directly participating in Hostilities. The fact that a civilian directly participating in hostilities may have lost im- munity from attack does not however mean that the lethal use of force against that person will always be justified. The question arises as to the extent to which, consistent with the principles of military necessity and humanity, there is an obligation under IHL to use less harmful means, short of lethal force, 134 As noted in Article 50 AP I: ‘In case of doubt whether a person is a civilian, that person shall be considered a civilian’; see ‘ICRC DPH Guidance’, supra note 125, p. 71 et seq. 135 ‘ICRC DPH Guidance’, supra note 124, Part 1, II and VII. See also ▇▇▇▇▇▇▇▇, supra note 108, p. 638. Former Special Rapporteur ▇▇▇▇▇▇ ▇▇▇▇▇▇ criticised this as creating a status-based exception rather than a specific-acts based approach, see ‘▇▇▇▇▇▇ Study on Targeted Killings’, supra note 109; see response in Pejic, ‘Conflict Classification’, supra note 57. 136 ‘ICRC DPH Guidance’, supra note 124, pp. 44-45. 137 ‘▇▇▇▇▇▇ Study on Targeted Killings’, supra note 109. 138 Ruling on Targeted Killings, supra note 9, para. 39. 139 See ‘ICRC DPH Guidance’, supra note 125, p. 67. against individuals taking direct participating in hostilities where this proves feasible. The ICRC Guidance on DPH provides that where the circumstances are such that the armed or police forces of the government may be able to capture an individual without resorting to lethal force, without jeopardising its own forces or military advantage, the principle of humanity requires that this be done.140 Likewise, a landmark decision by the Israeli Supreme Court adopted a parallel approach when it stated as follows: [A] civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed. In our domestic law, that rule is called for by the principle of proportionality. Indeed, among the military means, one must choose the means whose harm to the human rights of the harmed person is smallest. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means, which should be em- ployed.141 The view that such persons, despite losing civilian immunity, still should not be killed unless less harmful means have been considered and, if possible, exhausted, may flow from principles of IHL (as emphasised by the ICRC) or the increasing cross fertilisation between IHL and human rights law, both applicable in situations o...