The Australian Red Cross took advantage of Law Week to highlight the lack of clarity surrounding laws relating to direct participation in hostilities (DPH).
Speaking at a Humanitarian Law Perspectives seminar on Wednesday (18 May) night, Kelisiana Thynne, legal adviser to the International Committee of the Red Cross regional delegation in the Pacific, and Dr Emily Crawford, a postdoctoral fellow at the University of Sydney, discussed difficulties surrounding the notion of DPH and how confusion about what DPH actually means can raise legal issues for those involved in armed conflict.
Crawford explained that DPH falls under the banner of international humanitarian law (IHL), which is defined in the four Geneva conventions and their protocols. IHL aims to protect civilians in armed conflict and, as such, combatants must be able to distinguish between other combatants, who may be lawfully attacked, and civilians who are protected under IHL - until, that is, they engage in DPH.
According to Thynne, the lack of clarity surrounding the meaning of DPH is topical because of the rising number of civilians killed in combat.
"There have been so many instances of civilians being killed in battle, and many allegations that certain governments may be targeting civilians and not directing their attacks towards the correct military object," she told Lawyers Weekly.
Crawford said the reasons behind this include the fact that modern warfare has evolved from a situation where the enemy is easily recognisable, especially in international conflicts, to one in which the distinction between enemy and civilian has become increasingly blurred. In addition, civilians have also become more involved in activities that could constitute actual combat.
In May 2009, the International Committee of the Red Cross (ICRC) published an interpretative guide about what constitutes DPH, but there is still uncertainty surrounding the law and a dearth of practical applications.
According to Thynne, one way for the law to be more clearly defined in this area would be for a court, such as the International Criminal Court (ICC), to tackle the issue in official proceedings.
"There haven't been any test cases so far, but I think the ICC might take [the issue] into account in the future," she said.
However, as is the enduring challenge of international law, Thynne said that even this would not guarantee an accepted narrowing, or otherwise, of the definition of DPH.
"A judgment dealing with the issue of DPH would certainly help, but whether the US and other large armies would take the court's definition into account is another matter, because it is not necessarily binding on them," she explained.
"But if a decision was taken domestically that happened to deal with this particular issue, then it would certainly help to develop the law. We would hope that the ICRC's interpretative guidance would be taken into account, but you're never really sure what the judge might take into account. They might come up with their own completely different interpretation."
The Humanitarian Law Perspectives seminars are held regularly and are sponsored by Mallesons Stephen Jaques.