Practice Relating to Rule 6. Civilians’ Loss of Protection from Attack
Section A. Direct participation in hostilities
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
are members of the armed forces of a party to the conflict, with the exception of medical and religious personnel
. In war, they may engage in harmful acts as long as they comply with the rules of the law of armed conflict. Any persons who engage in harmful acts or openly bear weapons may also be fought against.
The Regulation also notes that, in application of the principle of distinction, a “ten-year-old child [who] releases a hand-grenade” can be shot at, giving “[s]elf-defence, military objective” as explanation.
Similarly, it notes that, in application of the principle of distinction, a “[p]erson in civilian clothing armed with a submachine gun” can be shot at, explaining: “Persons carrying weapons are military objectives. Civilians may not participate in hostilities.”
The Regulation further states that civilians “are especially protected by the law of armed conflict, insofar as they do not participate in combat and are not in the immediate proximity of military objectives”.
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
Existing international humanitarian law treats non-State actors in a different manner depending on whether the situation is an international armed conflict or a non-international armed conflict.
In fact, in international armed conflicts, there are two categories of persons, combatants and civilians, the first having the right to take a direct part in hostilities. …
International humanitarian law establishes criteria for the granting of combatant status. It is primarily for members of the armed forces of a party to the conflict but also for members of other militias. For this, combatants must carry their arms openly, be recognisable (generally by a uniform), be under a responsible command and act in conformity with international humanitarian law in their operations.
Persons not falling in this category are civilians. They notably benefit from protection against direct attacks, provided that and as long as they do not take a direct part in hostilities. This participation does not however constitute a violation of international humanitarian law but entails the loss of the protection against attacks granted to civilians. …
In non-international armed conflicts, international humanitarian law does not provide for any particular status of combatant. Non-State actors participating in the conflict are civilians, who are protected against attacks provided that and as long as they do not take a direct part in hostilities. …
The analysis concerning private military and security companies does not fundamentally differ from that concerning other non-State actors. … As a general rule, they must be considered as civilians (independently of the uniform they wear), that is to say they do not have benefit of any combatant privilege and are only authorized by national law to use arms in cases of legitimate defence.
[footnotes in original omitted]
The report further notes:
A problem arises as to the application of the principle of distinction with regard to the revolving door
phenomenon: If a combatant lays down his arms and returns to civilian life for a more or less long period, the question arises whether he or she can be killed in the context of a prolonged armed conflict. The rule under art. 51, para. 3 of [the 1977] Additional Protocol I and art. 13 of [the 1977] Additional Protocol II constitutes a veritable hinge between the status of protected and non-protected persons. According to these provisions, civilian persons benefit from the right to be protected against the dangers arising from military operations “unless they take a direct part in hostilities”. For governmental troops, it is tempting to completely deny the status of civilian to insurgents or to interpret these provisions in a broad manner by considering that direct participation starts with the preparation of combat actions, which results in the loss of protection. In order to avoid any ambiguity, the ICRC recently published a study on the concept of “direct participation in hostilities”, which indicates that members of organized armed groups assuming a … “continuous combat function
” … lose their protection for the duration of their activities. According to this principle, the head of an organized armed group surprised while shopping in a supermarket during an armed conflict can be targeted.
[footnotes in original omitted; emphasis in original]