Practice Relating to Rule 6. Civilians’ Loss of Protection from Attack

Note: For practice concerning loss of protection from attack for medical and religious personnel and for persons displaying the distinctive emblems of the Geneva Conventions, see respectively Rules 25, 27 and 30.
Geneva Conventions (1949)
Common Article 3 of the 1949 Geneva Conventions protects “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause” against “violence to life and person, in particular murder of all kinds”. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 3; Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 3; Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 3; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949.
Additional Protocol I
Article 51(3) of the 1977 Additional Protocol I provides that civilians shall enjoy protection against the dangers arising from military operations “unless and for such time as they take a direct part in hostilities”. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 51(3). Article 51 was adopted by 77 votes in favour, one against and 16 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 16.
Additional Protocol II
Article 13(3) of the 1977 Additional Protocol II provides that civilians shall enjoy protection against the dangers arising from military operations “unless and for such time as they take a direct part in hostilities”. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 13(3). Article 13 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 134.
Preparatory Committee for the Establishment of an International Criminal Court
During the March-April 1998 session of the Preparatory Committee for the Establishment of an International Criminal Court, a proposal was developed which encompassed “recruiting children under the age of fifteen years into armed forces or using them to participate in hostilities”. The words “using” and “participate” were explained in a footnote to provide guidance for the interpretation of the scope of this provision. This footnote read:
The words “using” and “participate” have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology. 
Roy S. Lee (ed.), The International Criminal Court. The Making of the Rome Statute: Issues, Negociations, Results, Kluwer Law International, The Hague, 1999, p. 118.
New Delhi Draft Rules
Article 4 of the 1956 New Delhi Draft Rules states:
The civilian population consists of all persons not belonging to one or other of the following categories:
(a) Members of the armed forces, or of their auxiliary or complementary organizations.
(b) Persons who do not belong to the forces referred to above, but nevertheless take part in the fighting. 
Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 4.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 51(3) of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 51(3) of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
UN Secretary-General’s Bulletin
Section 5.2 of the 1999 UN Secretary-General’s Bulletin provides that civilians shall enjoy protection against the dangers arising from military operations, “unless and for such time as they take a direct part in hostilities”. 
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 5.2.
Australia
Australia’s Defence Force Manual (1994) states: “Civilians are only protected as long as they refrain from taking a direct part in hostilities.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 532; see also §§ 527 and 918.
The manual further states: “Whether or not a civilian is involved in hostilities is a difficult question which must be determined by the facts of each individual case. Civilians bearing arms and taking part in military operations are clearly taking part in hostilities.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 532.
Australia
Australia’s LOAC Manual (2006) states: “Civilians are only protected as long as they refrain from taking a direct part in hostilities.” 
Australia, The Manual of the Law of Armed Conflict , Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.36; see also § 2.11.
The manual further states:
Whether or not a civilian is involved in hostilities is a difficult question, which must be determined by the facts of each individual case. Civilians bearing arms and taking part in military operations are clearly taking part in hostilities; civilians working in a store on a military air base may not necessarily be taking such a direct part. However, stores depots, supply columns and military installations are clearly military objectives which may be attacked, regardless of the presence of civilian workers. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.36.
The manual also states that “civilians who take part in the conflict become unlawful combatants and legitimate targets”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.18.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Teaching Manual for Soldiers states: “A civilian who takes up arms logically loses the protection granted to civilians and may be attacked.” 
Belgium, Droit de la Guerre, Dossier d’Instruction pour Soldat, à l’attention des officiers instructeurs, JS3, Etat-Major Général, Forces Armées belges, undated, p. 14.
Benin
Benin’s Military Manual (1995) states: “Civilian persons may only be attacked when they participate directly in hostilities.” 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule III, p. 4.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “civilians who take a direct part in combat become military objectives”. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 53; see also Part I bis, p. 82.
The Regulations also states that civilians “may not be attacked unless they contribute to military action”. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 9.
The Regulations further states: “The protection to which particularly protected persons … are entitled does not cease unless they … commit harmful acts against the enemy.” 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 87.
Canada
Canada’s LOAC Manual (1999) states: “Civilians who take a direct part in hostilities (other than a levée en masse) are unlawful combatants. They lose their protection as civilians and become legitimate targets for such time as they take a direct part in hostilities.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3–4, § 28; see also p. 7-5, § 46 (air to land operations).
The manual further states that “participation in hostilities by non-combatants” is a violation of customary law and recognized as a war crime by the law of armed conflict. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-4, § 21(g).
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”:
Civilians who take a direct part in hostilities (other than a levée en masse) are unlawful combatants. They lose their protection as civilians and become legitimate targets for such time as they take a direct part in hostilities. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 318.1.
In its chapter on targeting, the manual states:
Unlawful combatants are legitimate targets for such time as they take a direct part in hostilities. Unlawful combatants include: a. civilians (except those who are lawful combatants because they are participating in levée en masse). 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 410.1.c.
In its chapter on air warfare, the manual further states:
The civilian population as a whole, as well as individual civilians, shall not be the object of attack. Civilians shall enjoy this protection unless and for such time as they take a direct part in hostilities. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 716.2.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states that “participation in hostilities by non-combatants” is a violation of customary law and recognized as a war crime by the law of armed conflict. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1609.3.g.
Canada
Rule 1 of Canada’s Code of Conduct (2005) instructs Canadian Forces (CF) personnel: “Engage only opposing forces and military objectives.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 1.
The Code of Conduct further explains:
3. Force used during operations must be directed against opposing forces and military objectives. Therefore, civilians not taking part in hostilities must not be targeted. Rule #1 not only makes sense morally but also helps to ensure the most efficient use of military resources. In simple terms, “warriors fight warriors.”
5. An “opposing force” is any individual or group of individuals who pose a threat to you or your mission. It is sometimes difficult to identify who the opposing forces are. At one time most armed conflict involved organized armed forces. However, since World War II an increasing number of conflicts involve paramilitary, irregular or poorly organized armed groups. Sometimes these groups are fighting for ethnic or religious reasons. Often members of such paramilitary or irregular armed groups do not wear uniforms or operate in organized units. The potential for you to be confronted by these irregular opposing forces has increased as a result of the UN involvement in humanitarian operations. CF operations in Somalia, Rwanda, the former Yugoslavia and Haiti are examples of such operations. If you are involved in a peace support operation, your concern should not be whether a member of an opposing force wears a uniform, or is part of a well-established army, but whether or not that person poses a threat. In a peace support operation persons (including civilians) usually must do more than simply be in possession of weapons to be considered “opposing forces.” They must also act in a threatening manner toward you, or the persons and property you are tasked to protect. In an armed conflict, on the other hand, the enemy forces are opposing forces whether or not they pose an immediate threat. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 1, §§ 3 and 5.
Canada
Canada’s Use of Force Manual (2008) states:
Section II – Legal foundations
104. International law
6. In terms of use of force, an essential feature of the LOAC [law of armed conflict] is that it allows for the deliberate use of deadly force against individuals directly participating in hostilities (during international or non-international armed conflicts), whether or not they are presenting a threat at the moment. …
Section IV – Principles and rules governing the use of force
112. Principles and rules governing the use of force that directly relates to the conduct of an armed conflict
1. Distinction. As a general rule civilians and civilian objects shall not be the object of attack (acts of violence against the adversary, whether in offence or defence). Targets shall be limited strictly to military objectives.
a. In so far as persons are concerned, only members of the enemy’s armed forces or persons taking a direct part in hostilities are lawful targets; … 
Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, §§ 104.6 and 112.1.a; see also Glossary, p. GL-3.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders): “Persons who are … not directly taking part in the hostilities are entitled to respect for their lives and physical and moral integrity. Such persons must under all circumstances be protected”. 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Fundamental Rules, § 1.
In Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police), the manual states: “Civilian persons may be attacked only if they take a direct part in hostilities”. 
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Section 2, 2.1.
The manual also states: “Specially protected persons [including civilian persons in the power a party to a conflict] may not take a direct part in hostilities and may not be attacked.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Section 2, 2.2.
Chad
Chad’s Instructor’s Manual (2006) states that “a civilian who takes up arms loses his protection as a civilian and may be attacked”. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 87; see also pp. 21, 42 and 93.
Colombia
Colombia’s Instructors’ Manual (1999) states that civilians lose their protection against attack “when they participate directly in the hostilities”. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 16; see also p. 28.
The manual adds: “Civilians must be understood as those who do not participate directly in military hostilities (internal conflict, international conflict).” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 16.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
II.1. Protected persons and objects
- Civilians: persons who are not members of the armed forces and who do not take part in hostilities. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 18.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
Chapter 1. Introduction to the law of war
II.1. Distinction
At all times, a distinction must be clearly made between combatants and civilians or the civilian population as such … Civilians are protected against attacks, but they lose that protection during the time of their effective participation in hostilities.
Chapter 3. Identification
II.1. Civilians
Civilians must not be attacked … Civilians are not entitled to take part directly in hostilities. If they do, they lose their status as civilians during the time of their direct participation …
II. 4. Civilians accompanying the armed forces
Civilians accompanying the armed forces are, for example, war correspondents, personnel responsible for the wellbeing of the armed forces, supply contractors, members of labour units or civilian members of crews of military aircraft … They are in the same situation as other civilians; in order to be entitled to protection against attacks, they must abstain from directly taking part in the hostilities. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 12 and 31; see also Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 13, 21 and 23.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
I.4. Unlawful combatants
“Unlawful” combatants are those who take a direct part in hostilities without having the legal right to do so according to the LOAC.
I.4.1. Civilians participating in hostilities
Civilians who take a direct part in hostilities (other than in a levée en masse) are unlawful combatants. They lose their protection as civilian persons and become lawful objectives during the time they take a direct part in hostilities. …
II.1. Legitimate objectives
II.1.1. Definitions
“Legitimate objectives” comprise combatants, unlawful combatants and military objectives. …
II.1.5. Unlawful combatants
Unlawful combatants are legitimate objectives during the time they take a direct part in hostilities. Unlawful combatants comprise:
- civilians (except for those who are lawful combatants because they participate in a levée en masse). 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 23 and 25–26.
Croatia
Croatia’s Commanders’ Manual (1980) states: “Civilians may not be attacked, unless they participate directly in hostilities.” 
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, § 10.
Dominican Republic
The Dominican Republic’s Military Manual (1980) considers that “all persons who participate in military operations or activities are considered combatants” and thus liable to attack. 
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 3.
Ecuador
Ecuador’s Naval Manual (1989) states:
Civilians who take a direct part in hostilities by taking up arms or otherwise trying to kill, injure or capture enemy personnel or destroy enemy property lose their immunity and may be attacked. Similarly, civilians serving as guards, intelligence agents or lookouts on behalf of military forces may be attacked. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 11.3.
El Salvador
El Salvador’s Soldiers’ Manual states that combatants must “never attack … women, children, the elderly or any person who does not bear arms”. 
El Salvador, Manual del Combatiente, undated, p. 3.
Ethiopia
According to Ethiopia’s Standing Rules of Engagement (2007), “military objectives” include civilians who take a direct part in combat. 
Ethiopia, Standing Rules of Engagement, National Defense Force, Addis Ababa, 2007, § 8.3.4.
France
France’s LOAC Summary Note (2000) states: “Civilians may not be attacked, unless they participate directly in hostilities.” 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 1.3; see also Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 5.
Germany
Germany’s Military Manual (1992) states: “Civilians who do not take part in hostilities shall be respected and protected.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 502.
The manual further states: “Persons taking a direct part in hostilities are not entitled to claim the rights accorded to civilians by international humanitarian law.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 517.
Germany
Germany’s Soldiers’ Manual (2006) states:
Civilians may not take part in combat operations.
Civilians who do not take part in combat operations shall be respected and protected. They may neither be attacked nor killed, wounded or captured. 
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten - Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten - Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p. 4.
India
India’s Army Training Note (1995) states:
War is an act of extreme violence between two nations and not between people individually. The implications, therefore, are that, so long as an individual, may it be a soldier or a civilian, is directly contributing towards furtherance of the war effort, he is deemed to be at war. However, when he is not so employed, he is to be treated as a normal human being and must be afforded all protection and care due to him. 
India, Army Training Note, Chief of Staff, Army Training Command, Ministry of Defence, Government of India, 1995, p. 3/7, § 14.
The Army Training Note defines the term “terrorist” as:
a person who indulges in wanton killing of persons or involves in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to putting the public or any section of the public in fear, or affecting adversely the harmony between different religious, social, linguistic groups or the sovereignty and integrity of a nation. 
India, Army Training Note, Chief of Staff, Army Training Command, Ministry of Defence, Government of India, 1995, p. 4/16, § 35.
According to the Report on the Practice of India, this definition is “intended to help the armed forces to identify the ‘terrorists’ who may be treated as combatants if the situation can be likened to an internal conflict”. 
Report on the Practice of India, 1998, Chapter 1.1.
Indonesia
Indonesia’s Air Force Manual (1990) states that a person who is not a member of the armed forces nor a member of a militia but participates in the hostilities is an unlawful combatant and is considered a military objective. 
Indonesia, The Basics of International Humanitarian Law in Air Warfare, Indonesian Air Force, 1990, §§ 22–23.
Italy
Italy’s LOAC Elementary Rules Manual (1991) provides: “Civilians may not participate directly in hostilities and may not be attacked, unless they take a direct part in hostilities.” 
Italy, Regole elementari di diritto di guerra, SMD-G-012, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, § 10.
Italy
Italy’s Combatant’s Manual (1998) states: “Anyone who takes part in military operations or activities is considered a combatant.” 
Italy, Manuale del Combattente, SME 1000/A/2, Stato Maggiore Esercito/Reparto Impiego delle Forze, Ufficio Dottrina, Addestramento e Regolamenti, 1998, § 250.
The manual further states: “IT IS NOT PERMITTED in any case to attack civilians unless they carry out hostile acts or take part in belligerent actions or operations.” 
Italy, Manuale del Combattente, SME 1000/A/2, Stato Maggiore Esercito/Reparto Impiego delle Forze, Ufficio Dottrina, Addestramento e Regolamenti, 1998, § 250.
(emphasis in original)
Kenya
Kenya’s LOAC Manual (1997) states that civilians lose their protection from attack “when they take a direct part in hostilities”. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 10.
Madagascar
Madagascar’s Military Manual (1994) states: “Civilian persons may not be attacked, unless they participate directly in hostilities.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche 3-O, § 10.
Netherlands
The Military Manual (1993) of the Netherlands states: “Civilians enjoy no protection [against attack] if they participate directly in hostilities.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-5.
The manual further states that taking a direct part in hostilities means that “the person involved engages in hostilities aimed at hitting enemy personnel or materiel. Examples include firing at enemy troops, throwing molotov cocktails or blowing up a bridge used for the transport of military materiel.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-5.
With respect to non-international armed conflicts in particular, the manual states: “The protection of civilians ends when and for as long as they participate directly in hostilities.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-6.
Netherlands
The Military Handbook (1995) of the Netherlands states: “It is prohibited to attack civilians who are not involved in combat.” 
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-36.
Netherlands
The Military Manual (2005) of the Netherlands states: “Combatants are those entitled to participate directly in hostilities. ‘Participate directly in hostilities’ comprises more than participation in battle: it also covers direct support of military operations.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0302.
The manual further states: “The term ‘non-combatant’ is used for anyone who is not a combatant. This includes all civilians … on the assumption that they play no part in the hostilities.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0305.
In its chapter on combatants, the manual states:
In the Netherlands, civil servants of the Defence Ministry who perform activities during an armed conflict must be deemed to play a direct part in hostilities. It must be remembered that “direct participation in hostilities” comprises more than participation in battle. It also covers more direct support of military operations. There are criteria for assessing whether direct participation in hostilities is taking place. Important factors here are the nature and place of the activities to be performed. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0312.
In its chapter on behaviour in battle, the manual states: “A non-combatant, who may not take part in hostilities, but uses a weapon, also forms a military objective.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0509.
The manual also states:
[C]ivilians enjoy no protection, as described above, if they take a direct part in the hostilities. “Take a direct part in the hostilities” means that the person concerned carries out acts of war aimed at personnel or equipment of the enemy forces. Such actions include firing on hostile troops, throwing Molotov cocktails, blowing up a bridge over which enemy materiel is transported, and transporting equipment to battle positions. Actions such as manufacturing and transporting military materiel in the rear area certainly do not constitute direct participation in hostilities. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0520; see also § 0805 (protection of the civilian population).
In its chapter on neutrality, the manual states:
Status of neutrals in territory under belligerent control
A resident of a neutral State forfeits neutral status if he commits hostile acts against a belligerent or acts in favour of a belligerent, especially if he joins the armed forces of a belligerent. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0942.
In its chapter on non-international armed conflict, the manual states:
A distinction should always be made between those directly participating in the fighting and those not participating in military operations, and persons who have been removed from the fighting (hors de combat). The first category of persons may in principle be attacked, whereas the second category should be protected against the consequences of combat. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1029.
In its chapter on non-international armed conflict, the manual states: “Civilians who participate directly in hostilities forfeit their protection as long as they participate directly in the combat.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1054.
New Zealand
New Zealand’s Military Manual (1992) provides: “Civilians shall enjoy … protection [against attack] unless and for such time as they take a direct part in hostilities.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 517.
The manual further states that “participation in hostilities by non-combatants” is a war crime recognized by the customary law of armed conflict. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1704(5).
Nigeria
Nigeria’s Operational Code of Conduct (1967) states: “Youths and school children must not be attacked unless they are engaged in open hostilities against Federal Government Forces.” It further states: “male civilians who are hostile to the Federal Forces are to be dealt with firmly but fairly”. 
Nigeria, Operational Code of Conduct for Nigerian Armed Forces, Federal Military Government of Nigeria, July 1967, § 4(b) and (j).
Nigeria
According to Nigeria’s Manual on the Laws of War, “participation in hostilities by civilians” is an example of a war crime. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “Civilians may not directly participate in hostilities. Civilians may not be attacked unless they directly participate in hostilities.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, p. 419.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
Civilians shall enjoy the protection afforded by Paragraph 54 of the present Regulations [prohibiting attacks directed against civilians and indiscriminate attacks as well as requiring precautions to be taken in attack], unless and for such time as they take part in hostilities. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 55.
With regard to internal armed conflict, the Regulations states:
The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. The civilian population as such, as well as individual civilians, shall not be the object of attack … Civilians shall enjoy the protection, unless and for such time as they take a direct part in hostilities. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 84.
Russian Federation
The Russian Federation’s Combat Manual (2005) states:
Persons and objects entitled to protection under international humanitarian law may not be attacked, if these persons are not engaged in hostile actions, and the objects are not used (nor prepared to be used) for military purposes. 
Russian Federation, Combat Manual on the Preparation and Conducting of Combined-Arms Battles (Boevoi ustav po podgotovke i vedeniu obshevoiskovogo boya), Part 3, Platoon, Subdivision, Tank, endorsed by Order of the Commander-in-Chief of the Ground Forces No. 19, 24 February 2005, § 24.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states that “civilians and civilian population” may not be attacked “unless they are fighting”. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 29.
South Africa
South Africa’s LOAC Manual (1996) states: “If persons identified as civilians engage the armed forces, then they are regarded as unlawful combatants and may be treated under law as criminals.” 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 28(b). This manual is also included in Chapter 4 of the Draft Civic Education Manual of 1997.
Spain
Spain’s LOAC Manual (1996) states: “Civilians must not take a direct part in hostilities nor be the object of attack, unless they take a direct part in hostilities.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 5.2.a.(2).
Spain
Spain’s LOAC Manual (2007) states: “Civilians must not take a direct part in hostilities. They must not be attacked unless they take a direct part in the armed conflict.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 5.2.a.(2).(a); see also §§ 4.2.b.(1), 4.5.b.(1).(a), and (1).(b).
The manual also states “The categories of people taking a direct part in the hostilities who are not entitled to combatant status include the employees of private security companies who exceed their duties and carry out actions that are unlawful under international law.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 1.4.e.
Sweden
Sweden’s IHL Manual (1991) states: “Protection for civilians does not apply under all circumstances – exceptions are made for the time when civilians take direct part in hostilities, which is equivalent to their taking part in armed fighting.” 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, p. 43.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
1 Combatants 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. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance for the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 159(1). In the first sentence of § 159(1), the German language version notes: “Combatants are members of organized [“organisierten”] armed forces, with the exception of medical and religious personnel”.
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. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance for the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 172.
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.” 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance for the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 172.
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”. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance for the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 197. The German language version notes: “…insofar as they do not participate in combat or [“oder”] are not in the immediate proximity of military objectives”.
Togo
Togo’s Military Manual (1996) states: “Civilian persons may only be attacked when they participate directly in hostilities.” 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule III, p. 4.
United Kingdom of Great Britain and Northern Ireland
According to the UK Military Manual (1958), “participation in hostilities by civilians” is an example of a punishable violation of the laws of war, or war crime, beyond the grave breaches of the Geneva Conventions. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 626(p).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states that civilians “lose their protection [from attack] when they take part in hostilities”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 3, p. 10, § 9.
The Pamphlet further states that soldiers “must not attack civilians who are not actually engaged in combat”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Annex A, p. 44, § 8.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
Civilians may not take a direct part in hostilities and, for so long as they refrain from doing so, are protected from attack. Taking a direct part in hostilities is more narrowly construed than simply making a contribution to the war effort. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 2.5.2; see also § 5.3.2 (conduct of hostilities).
The manual further states:
Whether civilians are taking a direct part in hostilities is a question of fact. Civilians manning an anti-aircraft gun or engaging in sabotage of military installations are doing so. Civilians working in military vehicle maintenance depots or munitions factories or driving military transport vehicles are not, but they are at risk from attacks on those objectives since military objectives may be attacked whether or not civilians are present. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.3.3.
With regard to internal armed conflict, the manual states: “A distinction is to be drawn between those who are taking a direct part in hostilities, who may be attacked, and those who are not taking a direct part in hostilities, who are protected from attack.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.6.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004), as amended in 2010, states: “Civilians are protected from attack unless and for such time as they take a direct part in hostilities. Taking direct part in hostilities is more narrowly construed than simply making a contribution to the war effort.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, as amended by Amendment 3, Ministry of Defence, September 2010, § 2.5.2.
The manual also states: “Under the law of armed conflict, members of the civilian population lose their civilian protection when they participate in hostilities.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, as amended by Amendment 3, Ministry of Defence, September 2010, § 4.2.2.
United States of America
The US Field Manual (1956) states: “Persons who are not members of the armed forces … who bear arms or engage in other conduct hostile to the enemy thereby deprive themselves of many of the privileges attaching to the members of the civilian population”. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 60.
The manual specifies that persons who are not members of the armed forces, who commit hostile acts such as “sabotage, destruction of communications facilities, intentional misleading of troops by guides [and] liberation of prisoners of war” about or behind enemy lines may be tried and sentenced to execution or imprisonment. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 81.
United States of America
The US Air Force Pamphlet (1976) states: “Civilians enjoy the protection afforded by law unless and for such time as they take a direct part in hostilities.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-3.
The pamphlet further states:
Taking a direct part in hostilities covers acts of war intended by their nature and purpose to strike at enemy personnel and material. Thus a civilian taking part in fighting, whether singly or as a member of a group, loses the immunity given civilians. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-3(a).
[emphasis in original]
United States of America
The US Air Force Commander’s Handbook (1980) states that “anyone who personally tries to kill, injure or capture enemy persons or objects” is liable to attack. The manual adds:
The same would be true of anyone acting as a guard for military activity, as a member of a weapon crew, or as a crewman on a military aircraft in combat … Civilians who collect intelligence information, or otherwise act as part of the enemy’s military intelligence network, are lawful objects of attack. Members of a civilian ground observer corps who report the approach of hostile aircraft would also be taking a direct part in hostilities. The rescue of military airmen downed on land is a combatant activity that is not protected under international law. Civilians engaged in the rescue and return of enemy aircrew members are therefore subject to attack. This would include, for example, members of a civilian air auxiliary, such as the US Civil Air Patrol, who engage in military search and rescue activity in wartime. Note, however, that care of the wounded on land, and the rescue of persons downed at sea or shipwrecked, are protected activities under international law. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 2-8.
United States of America
The US Naval Handbook (1995) states:
Civilians who take a direct part in hostilities by taking up arms or otherwise trying to kill, injure, or capture enemy persons or destroy enemy property lose their immunity and may be attacked. Similarly, civilians serving as lookouts, guards, or intelligence agents for military forces may be attacked. Direct participation may also include civilians serving as guards, intelligence agents, or lookouts on behalf of military forces. Direct participation in hostilities must be judged on a case-by-case basis. Combatants in the field must make an honest determination as to whether a particular civilian is or is not subject to deliberate attack based on the person’s behavior, location and attire, and other information available at the time. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11.3.
United States of America
The US Naval Handbook (2007) states:
Unlawful combatants who are not members of forces or parties declared hostile but who are taking a direct part in hostilities may be attacked while they are taking a direct part in hostilities, unless they are hors de combat. Direct participation in hostilities must be judged on a case-by-case basis. Some examples include taking up arms or otherwise trying to kill, injure, or capture enemy personnel or destroy enemy property. Also, civilians serving as lookouts or guards, or intelligence agents for military forces may be considered to be directly participating in hostilities. Combatants in the field must make an honest determination as to whether a particular person is or is not taking a direct part in hostilities based on the person’s behavior, location and attire, and other information available at the time. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.2.2.
The Handbook also states: “Civilian protection from deliberate attack is contingent on their nonparticipation in hostilities.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.3.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “It is permitted to directly attack only members of the armed forces and other persons – only if they directly participate in military operations.” 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 67.
The manual further states that a civilian is considered a member of the armed forces when carrying arms or “otherwise taking part in resistance to an attacker”. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 48.
The Report on the Practice of the Federal Republic of Yugoslavia considers that:
This phrase is not substantiated with examples, but it is obvious that the authors had in mind various forms of participation of civilians in military operations and its preparations. No doubt experiences of the resistance movement during World War II were taken into account. 
Report on the Practice of the Federal Republic of Yugoslavia, 1997, Chapter 1.2.
Egypt
The Report on the Practice of Egypt (1997) states that according to Egypt’s Military Criminal Code, “armed gangs and rebels” are considered to be “enemies”. 
Report on the Practice of Egypt, 1997, Chapter 1.1, referring to Military Criminal Code, 1966, Article 85 and its explanatory memorandum.
France
France’s Code of Defence (2004), as amended in 2008, states:
[C]ivilians … are protected persons …
Protected persons are protected as long as they abstain from taking a direct part in hostilities.
It is prohibited for combatants to deliberately target protected persons. 
France, Code of Defence, 2004, as amended in 2008, Article D4122-8.
Ghana
Ghana’s Armed Forces Act (1962) defines “enemy” as any person engaged in armed operations against any part of the armed forces of Ghana, including armed mutineers, armed rebels, armed rioters and pirates. 
Ghana, Armed Forces Act, 1962, Article 98.
India
India’s Army Act (1950) defines the term “enemy” as including “all armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to military law to act”. 
India, Army Act, 1950, Section 3(x).
Malaysia
Malaysia’s Armed Forces Act (1972) defines the “enemy” as “all persons engaged in armed operations against any of His Majesty’s armed forces or any force co-operating therewith and also includes armed mutineers, armed rebels, armed rioters and pirates”. 
Malaysia, Armed Forces Act, 1972, Part I, Section 2.
Pakistan
Pakistan’s Army Act (1952) defines the “enemy” as including “all armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to the Act to act”. 
Pakistan, Army Act, 1952, Chapter I, Section 8(8); see also Air Force Act, 1953, Chapter I, Section 4(xvii) and Navy Ordinance, 1961, Chapter I, Section 4(x).
Peru
Peru’s Law on Self-Defence Committees (1991) specifies that in internal armed conflicts or in situations of internal violence, certain civilian groups, termed “self-defence committees”, are authorized to “develop activities of self-defence of their communities” and to offer temporary support to the armed forces and national police in “pacification” tasks. They have to be accredited by the competent military commanders and may be armed. Although the law does not specifically address the civilian or combatant status of the members of these committees, it mentions that the participation of draft-aged persons in these committees is equivalent to the accomplishment of the compulsory military service. 
Peru, Law on Self-Defence Committees, 1991, Article 1(7).
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 12
The persons protected by the Geneva Convention[s] of 12 August 1949 and [their] Additional Protocols I and II of 8 June 1977 are the following:
1° the civilian population;
Civilians acting like soldiers are not protected by this article. 
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Article 12.
Civilians behaving like soldiers are not protected under this Article. 
Rwanda, Organic Law instituting the Penal Code, 2012, Article 124(1)–(3).
Colombia
Colombia’s Constitutional Court, reviewing the constitutionality of the Guard and Private Security Statute in 1997, confirmed the view that:
The general protection of the civilian population against the dangers of war also implies that international humanitarian law does not authorize either of the parties to involve this population in the armed conflict, since by doing so it makes the said population into an active participant in that conflict, thereby exposing it to military attacks by the other party. 
Colombia, Constitutional Court, Constitutional Case No. C-572, Judgment, 7 November 1997.
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated that “under customary law, civilians … who take a direct part in hostilities shall lose the protection afforded by the principle of distinction if and for such time as they participate in the conflict”. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, pp. 84.
(footnote in original omitted)
Germany
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force (ISAF) in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, p. 1.
The Federal Prosecutor General also stated:
Criminal responsibility under § 211 StGB [i.e. for murder under Germany’s Penal Code]
b)
Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law …
In the assessment of the lawfulness of military attacks in non-international armed conflict which result in the killing of persons, the victims’ status under the international law of armed conflict is of particular relevance. One must distinguish whether the victims are armed fighters of the adverse party, civilians directly participating in hostilities, or other civilians. Persons who belong to the first two categories are in principle legitimate targets of military attacks.
bb)
… [A]ll victims of the bombing, as long as they were not members of the Taliban, were civilians to be protected under international humanitarian law and not civilians who were directly participating in hostilities and who would have been lawful military objectives (see Art. 51 para. 3 API [1977 Additional Protocol I]). This is also true for both the people who were helping the Taliban to free the tankers [which were immobilized on a sandbank] and those trying to obtain fuel for their private gain.
(1)
The notion of hostilities is not defined in the international conventions, but taken as a given. International State practice, jurisprudence and literature have, however, largely clarified its meaning … Hostilities are thus not only understood in the narrow sense as armed acts of destroying personnel and equipment of the adverse forces … Rather, the term also comprises all acts which negatively affect the military capacities and operations of a party to the conflict, with a direct causal link between the act and the disadvantage caused and an objective link (belligerent nexus) between the damage caused to the adversary and the advantage for the opposing party being required … Consequently, acts of sabotage, the disruption of the enemy’s logistics and communications are covered …, whereas the general disruption of a the civilian infrastructure of the country in which the armed conflict is taking place, even if negatively affecting the enemy forces, is not. … The direct participation in hostilities as understood under the international law of armed conflict is independent of the individual will of the person concerned because the temporary loss of protection as a civilian is the consequence of the person objectively constituting a military threat … The question whether individual civilians were forced by the Taliban to support them or if children below the permissible age of recruitment were among them … is thus irrelevant for the legal evaluation. For the purposes of a direct participation in hostilities it is also irrelevant whether a civilian committed crimes through his actions (which seems to be the case here either through the handling of stolen goods or the participation in a murder with robbery depending on the individual case). …
(2)
The civilians siphoning fuel from the tankers for their private gain and not in support of the Taliban were therefore clearly not directly participating in hostilities. Regarding the civilians who were supporting the Taliban, it must be taken into account that the abduction of the two fuel tankers which had been designated for ISAF forces in principle constitutes causing damage to the military capacities as comprised in the notion of hostilities. The requirement of a nexus … between the damage and the advantage for the other party to the conflict was also fulfilled. However, the requirement of direct causality between the act and the damage was not fulfilled … Regarding the significant resource of fuel, a disadvantage for a party to the conflict can be found in two respects: On the one hand the loss of own material, on the other hand the strengthening of the adversary’s resources. In both respects the direct causality between the act and the disadvantage must be particularly examined.
Regarding the loss of fuel, the proximity to the party to the conflict and the use in armed conflict is decisive. In the present case, the fuel was intended for the ISAF forces, but was still in the possession of a private logistics company and was located far away from the point of destination. The necessary relationship of proximity is therefore not fulfilled.
The requirement of strengthening a party to the conflict with the consequence of directly harming the adverse party is not fulfilled in the present case either. The situation corresponds to a general strengthening of the resources of one party without direct relation to the hostilities, as is the case with supporting the Taliban by financial donations … or by smuggling weapons and ammunition across the border … If the strengthening of military capacities directly resulted in concrete military operations, for example by transporting weapons directly to an area where they will be used … , the assessment would be different. This is not pertinent in the present case because the Taliban’s goal was to transfer the stolen fuel tankers to an area under their control. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, pp. 59–63.
Israel
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
Opposite the combatants and military objectives stand the civilians and civilian objectives. Military attack directed at them is forbidden. Their lives and bodies are protected from the dangers of combat, provided that they themselves do not take a direct part in the combat. …
This approach – which protects the lives, bodies, and property of civilians who are not taking a direct part in the armed conflict – passes like a thread throughout the caselaw of the Supreme Court …
B. The Source of the Basic Principle and its Customary Character
30. The basic principle is that the civilians taking a direct part in hostilities are not protected from attack upon them at such time as they are doing so. This principle is manifest in §51(3) of The First Protocol [1977 Additional Protocol I], which determines:
“Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.”
As is well known, Israel is not party to The First Protocol. Thus, it clearly was not enacted in domestic Israeli legislation. Does the basic principle express customary international law? … That position [that it is a principle of customary international law] is acceptable to us. It fits the provision Common Article 3 of The Geneva Conventions, to which Israel is party and which, according to all, reflects customary international law, pursuant to which protection is granted to persons “[T]aking no active part in the hostilities.” The International Criminal Tribunal for the former Yugoslavia determined that article 51 of The First Protocol constitutes customary international law …. In military manuals of many states, including England, France, Holland, Australia, Italy, Canada, Germany, the United States (Air Force), and New Zealand, the provision has been copied verbatim, or by adopting its essence, according to which civilians are not to be attacked, unless they are taking a (direct) part in the hostilities. The legal literature sees that provision as an expression of customary international law …. Respondents’ counsel stated before us that in Israel’s opinion, not all of the provisions of article51(3) of The First Protocol reflect customary international law. According to the State’s position, “all that is determined in customary international law is that it is forbidden to harm civilians in general, and it expressly determines that it is permissible to harm a civilian who ‘takes a direct part in hostilities.’ Regarding the period of time during which such harm is permitted, there is no restriction” (supplement to summary on behalf of the State Attorney (of January 26 2004), p. 79). Therefore, according to the position of the State, the non-customary part of article 1(3) of The First Protocol is the part which determines that civilians do not enjoy protection from attack “for such time” as they are taking a direct part in hostilities. As mentioned, our position is that all of the parts of article 51(3) of The First Protocol express customary international law. What is the scope of that provision? It is to that question that we now turn.
C. The Essence of the Basic Principle
31. The basic approach is thus as follows: a civilian – that is, a person who does not fall into the category of combatant – must refrain from directly participating in hostilities …. A civilian who violates that law and commits acts of combat does not lose his status as a civilian, but as long as he is taking a direct part in hostilities he does not enjoy – during that time – the protection granted to a civilian. He is subject to the risks of attack like those to which a combatant is subject, without enjoying the rights of a combatant, e.g. those granted to a prisoner of war. True, his status is that of a civilian, and he does not lose that status while he is directly participating in hostilities. However, he is a civilian performing the function of a combatant. As long as he performs that function, he is subject to the risks which that function entails and ceases to enjoy the protection granted to a civilian from attack …. Gasser discussed that, stating:
“What are the consequences if civilians do engage in combat? … Such persons do not lose their legal status as civilians … However, for factual reasons they may not be able to claim the protection guaranteed to civilians, since anyone performing hostile acts may also be opposed, but in the case of civilians, only for so long as they take part directly in hostilities”….
The Red Cross Manual similarly states:
“Civilians are not permitted to take direct part in hostilities and are immune from attack. If they take a direct part in hostilities they forfeit this immunity” ….
That is the law regarding unlawful combatants. As long as he preserves his status as a civilian – that is, as long as he does not become part of the army – but takes part in combat, he ceases to enjoy the protection granted to the civilian, and is subject to the risks of attack just like a combatant, without enjoying the rights of a combatant as a prisoner of war. Indeed, terrorists who take part in hostilities are not entitled to the protection granted to civilians. True, terrorists participating in hostilities do not cease to be civilians, but by their acts they deny themselves the aspect of their civilian status which grants them protection from military attack. Nor do they enjoy the rights of combatants, e.g. the status of prisoners of war.
32. We have seen that the basic principle is that the civilian population, and single civilians, are protected from the dangers of military activity and are not targets for attack. That protection is granted to civilians “unless and for such time as they take a direct part in hostilities” (§51(3) of The First Protocol). That provision is composed of three main parts. The first part is the requirement that civilians take part in “hostilities”; the second part is the requirement that civilians take a “direct” part in hostilities; the third part is the provision by which civilians are not protected from attack “for such time” as they take a direct part in hostilities. We shall discuss each of those parts separately.
D. The First Part: “Taking … part in hostilities”
33. Civilians lose the protection of customary international law dealing with hostilities of international character if they “take … part in hostilities.” What is the meaning of that provision? The accepted view is that “hostilities” are acts which by nature and objective are intended to cause damage to the army. Thus determines COMMENTARY ON THE ADDITIONAL PROTOCOLS, published by the Red Cross in 1987:
“Hostile acts should be understood to be acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces”….
A similar approach was accepted by the Inter-American Commission on Human Rights, and is positively referred to in HENCKAERTS & DOSWALD-BECK (p. 22). It seems that acts which by nature and objective are intended to cause damage to civilians should be added to that definition. According to the accepted definition, a civilian is taking part in hostilities when using weapons in an armed conflict, while gathering intelligence, or while preparing himself for the hostilities. Regarding taking part in hostilities, there is no condition that the civilian use his weapon, nor is their [sic] a condition that he bear arms (openly or concealed). It is possible to take part in hostilities without using weapons at all. COMMENTARY ON THE ADDITIONAL PROTOCOLS discussed that issue:
“It seems that the word ‘hostilities’ covers not only the time that the civilian actually makes use of a weapon, but also, for example, the time that he is carrying it, as well as situations in which he undertakes hostile acts without using a weapon” (p. 618–619).
As we have seen, that approach is not limited merely to the issue of “hostilities” toward the army or the state. It applies also to hostilities against the civilian population of the state ….
E. Second Part: “Takes a Direct Part”
34. Civilians lose the protection against military attack, granted to them by customary international law dealing with international armed conflict (as adopted in The First Protocol, §51(3)), if “they take a direct part in hostilities”. That provision differentiates between civilians taking a direct part in hostilities (from whom the protection from attack is removed) and civilians taking an indirect part in hostilities (who continue to enjoy protection from attack). What is that differentiation? A similar provision appears in Common Article 3 of The Geneva Conventions, which uses the wording “active part in hostilities”. The judgment of the International Criminal Tribunal for Rwanda determined that these two terms are of identical content (see The Prosecutor v. Akayesu, case no. ICTR-96-4-T (1998)). What is that content? It seems accepted in the international literature that an agreed upon definition of the term “direct” in the context under discussion does not exist …. HENCKAERTS & DOSWALD-BECK rightly stated that–
“It is fair to conclude … that a clear and uniform definition of direct participation in hostilities has not been developed in state practice” (p. 23).
In that state of affairs, and without a comprehensive and agreed upon customary standard, there is no escaping going case by case, while narrowing the area of disagreement (compare Tadic). On this issue, the following passage from COMMENTARY ON THE ADDITIONAL PROTOCOLS is worth quoting:
“Undoubtedly there is room here for some margin of judgment: to restrict this concept to combat and active military operations would be too narrow, while extending it to the entire war effort would be too broad, as in modern warfare the whole population participates in the war effort to some extent, albeit indirectly” (p. 516).
Indeed, a civilian bearing arms (openly or concealed) who is on his way to the place where he will use them against the army, at such place, or on his way back from it, is a civilian taking “an active part” in the hostilities (see Watkin, at p. 17). However, a civilian who generally supports the hostilities against the army is not taking a direct part in the hostilities …. Similarly, a civilian who sells food or medicine to unlawful combatants is also taking an indirect part in the hostilities. The third report of the Inter-American Commission on Human Rights states:
“Civilians whose activities merely support the adverse party’s war or military effort or otherwise only indirectly participate in hostilities cannot on these grounds alone be considered combatants. This is because indirect participation, such as selling goods to one or more of the armed parties, expressing sympathy for the cause of one of the parties or, even more clearly, failing to act to prevent an incursion by one of the armed parties, does not involve acts of violence which pose an immediate threat of actual harm to the adverse party” ….
And what is the law in the space between these two extremes? On the one hand, the desire to protect innocent civilians leads, in the hard cases, to a narrow interpretation of the term “direct” part in hostilities. Professor CASSESE writes:
“The rationale behind the prohibition against targeting a civilian who does not take a direct part in hostilities, despite his possible (previous or future) involvement in fighting, is linked to the need to avoid killing innocent civilians” ….
On the other hand, it can be said that the desire to protect combatants and the desire to protect innocent civilians leads, in the hard cases, to a wide interpretation of the “direct” character of the hostilities, as thus civilians are encouraged to stay away from the hostilities to the extent possible. Schmitt writes:
“Gray areas should be interpreted liberally, i.e., in favor of finding direct participation. One of the seminal purposes of the law is to make possible a clear distinction between civilians and combatants. Suggesting that civilians retain their immunity even when they are intricately involved in a conflict is to engender disrespect for the law by combatants endangered by their activities. Moreover, a liberal approach creates an incentive for civilians to remain as distant from the conflict as possible – in doing so they can better avoid being charged with participation in the conflict and are less liable to being directly targeted” ….
35. Against the background of these considerations, the following cases should also be included in the definition of taking a “direct part” in hostilities: a person who collects intelligence on the army, whether on issues regarding the hostilities …, or beyond those issues ; a person who transports unlawful combatants to or from the place where the hostilities are taking place; a person who operates weapons which unlawful combatants use, or supervises their operation, or provides service to them, be the distance from the battlefield as it may. All those persons are performing the function of combatants. The function determines the directness of the part taken in the hostilities . However, a person who sells food or medicine to an unlawful combatant is not taking a direct part, rather an indirect part in the hostilities. The same is the case regarding a person who aids the unlawful combatants by general strategic analysis, and grants them logistical, general support, including monetary aid. The same is the case regarding a person who distributes propaganda supporting those unlawful combatants. If such persons are injured, the State is likely not to be liable for it, if it falls into the framework of collateral or incidental damage. This was discussed by Gasser:
“Civilians who directly carry out a hostile act against the adversary may be resisted by force. A civilian who kills or takes prisoners, destroys military equipment, or gathers information in the area of operations may be made the object of attack. The same applies to civilians who operate a weapons system, supervise such operation, or service such equipment. The transmission of information concerning targets directly intended for the use of a weapon is also considered as taking part in hostilities. Furthermore, the logistics of military operations are among the activities prohibited to civilians … [N]ot only direct and personal involvement but also preparation for a military operation and intention to take part therein may suspend the immunity of a civilian. All these activities, however, must be proved to be directly related to hostilities or, in other words to represent a direct threat to the enemy … However, the term should not be understood too broadly. Not every activity carried out within a state at war is a hostile act. Employment in the armaments industry for example, does not mean, that civilian workers are necessarily participating in hostilities … Since, on the other hand, factories of this industry usually constitute lawful military objectives that may be attacked, the normal rules governing the assessment of possible collateral damage to civilians must be observed”….
In the international literature there is a debate surrounding the following case: a person driving a truck carrying ammunition …. Some are of the opinion that such a person is taking a direct part in the hostilities (and thus he can be attacked), and some are of the opinion that he is not taking a direct part (and thus he cannot be attacked). Both opinions are in agreement that the ammunition in the truck can be attacked. The disagreement regards the attack upon the civilian driver. Those who think that he is taking a direct part in the hostilities are of the opinion that he can be attacked. Those who think that he is not taking a direct part in the hostilities believe that he cannot be attacked, but that if he is wounded, that is collateral damage caused to civilians proximate to the attackable military objective. In our opinion, if the civilian is driving the ammunition to the place from which it will be used for the purposes of hostilities, he should be seen as taking a direct part in the hostilities ….
36. What is the law regarding civilians serving as a “human shield” for terrorists taking a direct part in the hostilities? Certainly, if they are doing so because they were forced to do so by terrorists, those innocent civilians are not to be seen as taking a direct part in the hostilities. They themselves are victims of terrorism. However, if they do so of their own free will, out of support for the terrorist organization, they should be seen as persons taking a direct part in the hostilities … .
37. We have seen that a civilian causing harm to the army is taking “a direct part” in hostilities. What says the law about those who enlist him to take a direct part in the hostilities, and those who send him to commit hostilities? Is there a difference between his direct commanders and those responsible for them? Is the “direct” part taken only by the last terrorist in the chain of command, or by the entire chain? In our opinion, the “direct” character of the part taken should not be narrowed merely to the person committing the physical act of attack. Those who have sent him, as well, take “a direct part”. The same goes for the person who decided upon the act, and the person who planned it. It is not to be said about them that they are taking an indirect part in the hostilities. Their contribution is direct (and active) ….
F. The Third Part: “For Such Time”
38. Article 51(3) of The First Protocol states that civilians enjoy protection from the dangers stemming from military acts, and that they are not targets for attack, unless “and for such time” as they are taking a direct part in hostilities. The provisions of article 51(3) of The First Protocol present a time requirement. A civilian taking a part in hostilities loses the protection from attack “for such time” as he is taking part in those hostilities. If “such time” has passed – the protection granted to the civilian returns. In respondents’ opinion, that part of article 51(3) of The First Protocol is not of customary character, and the State of Israel is not obligated to act according to it. We cannot accept that approach. As we have seen, all of the parts of article 51(3) of The First Protocol reflect customary international law, including the time requirement. The key question is: how is that provision to be interpreted, and what is its scope?
39. As regarding the scope of the wording “takes a direct part” in hostilities, so too regarding the scope of the wording “and for such time” there is no consensus in the international literature. Indeed, both these concepts are close to each other. However, they are not identical. With no consensus regarding the interpretation of the wording “for such time”, there is no choice but to proceed from case to case. Again, it is helpful to examine the extreme cases. On the one hand, a civilian taking a direct part in hostilities one single time, or sporadically, who later detaches himself from that activity, is a civilian who, starting from the time he detached himself from that activity, is entitled to protection from attack. He is not to be attacked for the hostilities which he committed in the past. On the other hand, a civilian who has joined a terrorist organization which has become his “home”, and in the framework of his role in that organization he commits a chain of hostilities, with short periods of rest between them, loses his immunity from attack “for such time” as he is committing the chain of acts. Indeed, regarding such a civilian, the rest between hostilities is nothing other than preparation for the next hostility ….
40. These examples point out the dilemma which the “for such time” requirement presents before us. On the one hand, a civilian who took a direct part in hostilities once, or sporadically, but detached himself from them (entirely, or for a long period) is not to be harmed. On the other hand, the “revolving door” phenomenon, by which each terrorist has “horns of the alter” (1 Kings 1:50) to grasp or a “city of refuge” (Numbers 35:11) to flee to, to which he turns in order to rest and prepare while they grant him immunity from attack, is to be avoided …. In the wide area between those two possibilities, one finds the “gray” cases, about which customary international law has not yet crystallized. There is thus no escaping examination of each and every case. In that context, the following four things should be said: first, well based information is needed before categorizing a civilian as falling into one of the discussed categories. Innocent civilians are not to be harmed …. Information which has been most thoroughly verified is needed regarding the identity and activity of the civilian who is allegedly taking part in the hostilities (see Ergi v. Turkey, 32 EHRR 388 (2001). CASSESE rightly stated that –
“[I]f a belligerent were allowed to fire at enemy civilians simply suspected of somehow planning or conspiring to plan military attacks, or of having planned or directed hostile actions, the basic foundations of international humanitarian law would be seriously undermined. The basic distinction between civilians and combatants would be called into question and the whole body of law relating to armed conflict would eventually be eroded” ….
The burden of proof on the attacking army is heavy …. In the case of doubt, careful verification is needed before an attack is made. HENCKAERTS & DOSWALD-BECK made this point:
“[W]hen there is a situation of doubt, a careful assessment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack. One cannot automatically attack anyone who might appear dubious” ….
Second, 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 employed (see Mohamed Ali v. Public Prosecutor [1969] 1 A.C. 430). Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force. That question arose in McCann v. United Kingdom, 21 E.H.R.R. 97 (1995), hereinafter McCann. In that case, three terrorists from Northern Ireland who belonged to the IRA were shot to death. They were shot in the streets of Gibraltar, by English agents. The European Court of Human Rights determined that England had illegally impinged upon their right to life (§2 of the European Convention on Human Rights). So wrote the court:
“[T]he use of lethal force would be rendered disproportionate if the authorities failed, whether deliberately or through lack of proper care, to take steps which would have avoided the deprivation of life of the suspects without putting the lives of others at risk” (p. 148, at paragraph 235).
Arrest, investigation, and trial are not means which can always be used. At times the possibility does not exist whatsoever; at times it involves a risk so great to the lives of the soldiers, that it is not required …. However, it is a possibility which should always be considered. It might actually be particularly practical under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place, and in which arrest, investigation, and trial are at times realizable possibilities (see §5 of The Fourth Geneva Convention). Of course, given the circumstances of a certain case, that possibility might not exist. At times, its harm to nearby innocent civilians might be greater than that caused by refraining from it. In that state of affairs, it should not be used. Third, after an attack on a civilian suspected of taking an active part, at such time, in hostilities, a thorough investigation regarding the precision of the identification of the target and the circumstances of the attack upon him is to be performed (retroactively). That investigation must be independent …. In appropriate cases it is appropriate to pay compensation as a result of harm caused to an innocent civilian (see CASSESE, at pp. 419, 423, and §3 of The Hague Regulations; §91 of The First Protocol). Last, if the harm is not only to a civilian directly participating in the hostilities, rather also to innocent civilians nearby, the harm to them is collateral damage. That damage must withstand the proportionality test. 
Israel, High Court of Justice, Public Committee against Torture in Israel case, Judgment, 14 December 2006, §§ 23, 30–40.
[footnotes in original to a large extent omitted]
Israel
In 2008, in its judgment in the A. v. State of Israel case concerning the legality of national law with regard to unlawful combatants, Israel’s High Court of Justice stated:
[W]e should point out that the question of the conformity of the term “unlawful combatant” to the categories recognized by international law has already been addressed in our case law in Public Committee against Torture in Israel v. Government of Israel, in which it was held that the term “unlawful combatants” does not constitute a separate category but is a subcategory of “civilians” recognized by international law. This conclusion is based on the approach of customary international law, according to which the category of “civilians” includes everyone who is not a “combatant”. … According to international law, it is permitted to attack an “unlawful combatant” only during the period of time when he is taking a direct part in the hostilities. 
Israel, Supreme Court of Israel, Court of Criminal Appeals, A. v. State of Israel case, Judgment, 11 June 2008, § 12.
United States of America
The Al-Marri case in June 2007 involved a citizen of Qatar, legally resident in the United States, who had been arrested in December 2001 on terrorism-related charges and confined to a US naval prison in Charleston as an enemy combatant (the US President having determined that he was closely associated with al Qaeda and engaged in conduct in preparation for acts of terrorism). Appearing before the US Court of Appeals for the Fourth Circuit, Al-Marri appealed a decision of a District Court, which had denied his petition for a writ of habeas corpus. In a majority judgment, the Court of Appeals rejected the Government’s arguments that civilians become enemy combatants if they engaged in criminal conduct on behalf of an enemy organization and that the President had inherent constitutional authority to order the military to detain such persons. It reversed the decision of the lower court and remanded the case back to it, with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release Al-Marri from military custody. On matters regarding “direct participation in hostilities”, the Court of Appeals stated:
[W]e recognize that some commentators have suggested that “for such time as they take a direct part in hostilities,” participants in non-international armed conflicts may, as a matter of customary international law, be placed in the formal legal category of “enemy combatant.” See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2115 & n.304 (2005) (internal quotation marks omitted). No precedent from the Supreme Court or this court endorses this view, and the Government itself has not advanced such an argument. This may be because even were a court to follow this approach in some cases, it would not assist the Government here. For the Government has proffered no evidence that al-Marri has taken a “direct part in hostilities.” Moreover, the United States has elsewhere adopted a formal treaty understanding of the meaning of the term “direct part in hostilities,” which plainly excludes al-Marri. See Message from the President of the United States Transmitting Two Optional Protocols to the Convention on the Rights of the Child, S. Treaty Doc. No. 106-37, at VII (2000) (distinguishing between “immediate and actual action on the battlefield” and “indirect participation,” including gathering and transmitting military information, weapons, and supplies). 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIB3.
[emphasis in original]
Having ordered that Al-Marri’s military detention cease in the 11 June 2007 judgment, the US Court of Appeals for the Fourth Circuit subsequently vacated the judgment and held an en banc rehearing on 31 October 2007. In its revised judgment on the case, issued on 15 July 2008, the Court held that Al-Marri could be held in military detention indefinitely as an enemy combatant, stating:
Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote … that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote … that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant.
Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow. 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 15 July 2008, p. 5.
United States of America
In the Hamlily case in 2009, in which the petitioners challenged the legality of their detention at Guantánamo by seeking writs of habeas corpus, the US District Court for the District of Columbia ruled that the US Government’s detention policy is generally consistent with the authority conferred on the US President under the Authorization for Use of Military Force (AUMF), Public Law 107-40, 115 Stat. 224, 18 September 2001, and core law of war principles that govern non-international armed conflicts. The Court stated in relation to its interpretation of “direct participation in hostilities”:
For purposes of these habeas proceedings, the Court interprets the phrase “committed a belligerent act” to cover any person who has directly participated in hostilities. That conclusion is consistent with the law of war. See [1977] Additional Protocol II, art. 13(3) (stating that civilians shall not be subject to military force “unless and for such time as they take a direct part in hostilities”); [1977] Additional Protocol I, art. 51(3) (same). As the Court has noted above … the precise scope of the phrase “direct participation in hostilities” remains unsettled and the International Committee of the Red Cross is coordinating an effort among experts “to clarify the precise meaning of the notion of ‘direct participation in hostilities’, which has never been defined in treaty law.” ICRC, Report: Direct Participation in Hostilities. In these proceedings, the Court will rely on the settled aspects of the standard. “[L]ittle doubt exists that a civilian carrying out an attack would be directly participating in hostilities. In the same vein, legal experts seem to agree that civilians preparing or returning from combat operations are still considered to be directly participating in hostilities, although precise indication as to when preparation begins and return ends remains controversial.” Id. But any further refinement of the concept of “direct participation” will await examination of particular cases. 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 20–21.
Venezuela
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated:
Attacks on innocent people … who have given no provocation in word or deed, are not justified even in a military war. … [These are] governed by laws that prohibit attacks on … persons uninvolved in the conflict … To conclude, in view of the foregoing, aggression is selective even in conventional warfare between military powers, so as not to harm the innocent. 
Venezuela, Supreme Tribunal of Justice, Ballestas case, Judgment, 10 December 2001, p. 8.
Bangladesh
In 2010, during a debate in the UN Security Council on the protection of civilians in armed conflict, the Counsellor of the Permanent Mission of Bangladesh stated: “Protection for civilians is a basic principle of humanitarian law: civilians not taking part in the fighting must on no account be attacked and must be spared and protected.” 
Bangladesh, Statement by the Counsellor of the Permanent Mission before the UN Security Council on protection of civilians in armed conflict, 7 July 2010.
Belgium
In an explanatory memorandum submitted to the Belgian Parliament in 1985 in the context of the ratification procedure of the Additional Protocols, the Belgian Government stated: “The condition [for civilian immunity from attack], however, is that they do not participate directly in hostilities, which is of course a question of fact.” 
Belgium, House of Representatives, Explanatory memorandum on a draft bill for the approval of the Additional Protocols, 1984–1985 Session, Doc. 1096-1, 9 January 1985, p. 10.
Botswana
The Report on the Practice of Botswana states: “Civilians lose their protection when they show resistance and aggression or when there is reason to believe they are involved in hostile activities.” 
Report on the Practice of Botswana, 1998, Answers to additional questions on Chapter 1.2.
Chile
With reference to Articles 248(2) and 251 of Chile’s 1925 Code of Military Justice, the Report on the Practice of Chile states that Chile takes a very broad view of what acts are considered to constitute support to military action and thus lead to the loss of civilian status and protection. 
Report on the Practice of Chile, 1997, Chapter 1.2 with reference to Chile, Code of Military Justice, 1925, Articles 248(2) and 251.
China
In spite of the absence of Chinese regulation on this matter, the Report on the Practice of China concludes that in practice civilians lose their civilian status and protection when carrying out military missions. The report adds that the term “innocent civilian” is often used in Chinese practice, and that a civilian who participates in hostilities, being no longer “innocent”, will lose protection. In this context, the report also gives a definition of the terms “spy” and “secret service”. A spy, under Chinese practice, is a civilian or a combatant who works for the enemy during an international armed conflict. “Secret service” refers to civilians or combatants who work for the enemy in the context of an internal armed conflict. The report concludes that it can be deduced from these two terms that civilians who take part in the hostilities, including those acting as spies or in the secret service, lose their protection. 
Report on the Practice of China, 1997, Chapter 1.2.
Colombia
In reaction to an article in the press, the Office of the Human Rights Adviser in the Office of the President of Colombia stated:
With respect to the concept of civilian population, there is probably a confusion in the article … with the notions of combatant and non-combatant. In principle, the civilian population is always considered non-combatant … In a non-international armed conflict, civilians can take up arms and form armed rebel groups, putting themselves outside the laws of the country. They thus become combatants which the State can attack and fight against with perfect legitimacy. As a result, such rebels are criminals and combatants at the same time. 
Colombia, Presidencia de la República de Colombia, Consejería para los Derechos Humanos, Comentarios sobre el artículo publicado en La Prensa por Pablo E. Victoria sobre el Protocolo II, undated, § 5, reprinted in Congressional record concerning the enactment of Law 171 of 16 December 1994.
Colombia
Colombia’s Defensoría del Pueblo (Ombudsman’s Office), with respect to “convivir”, considered that:
These organizations, nurtured by the national government itself, contribute nothing to the immunity of the civilian population, since they involve citizens in the armed conflict, divesting them of their protected status and making them into legitimate targets of attack … In the view of the Ombudsman’s Office, the operation of the Convivir cooperatives means that civilians participate directly in the armed conflict, thereby becoming combatants. 
Colombia, Defensoría del Pueblo, Cuarto informe anual del defensor del pueblo al congreso de Colombia, Santafé de Bogotá, September 1997, pp. 48–49.
Colombia
The Report on the Practice of Colombia states:
In Colombia, communal guard and private security services have been created under the name “convivir”. These services take the form of rural security cooperatives composed of individuals whom the State has authorized to bear arms, and who collaborate with the authorities by providing information to the public security forces concerning the activities of the guerrilla organizations. There is a public debate over the question of whether the members of these services should be considered civilians or combatants. 
Report on the Practice of Colombia, 1998, Chapter 1.2.
Djibouti
In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, in an exercise asking students to identify IHL violations, provided the following example:
[A commander of operations states:] “Since civilians prepare food and bring it to the soldiers who then fight, they take part in the hostilities. Without that food, the soldiers would not have the strength to fight with us. Thus, they are all soldiers after all, whether they wear a uniform or not. Even if unarmed, civilians who prepare food for the soldiers take part in the hostilities. As a result, soldiers have the right to kill them. 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 201.
The ministry also stated: “When civilians directly participate in hostilities, they lose their protection against attacks.” 
Djibouti, Ministry National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 201.
Djibouti
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry of National Education and Vocational Training stated: “When civilians directly participate in hostilities, they lose their protection against attacks.” 
Djibouti, Ministry of National Education and Vocational Training, History and Geography Textbook for 9th Grade, 2011, p. 211.
Egypt
The Report on the Practice of Egypt notes that the immunity from attack granted to the civilian population – provided that civilians do not participate in military operations – is justified by the “dictates of humanity and the cultural and civilian heritage of all nations and peoples”. 
Report on the Practice of Egypt, 1997, Chapter 1.2.
El Salvador
During the conflict in El Salvador, the armed forces reportedly attacked on numerous occasions what the guerrillas called “the masses”, i.e. parts of the civilian population who did not use arms or resort to violence but who were believed to sympathize or collaborate with the FMLN and who lived in zones of guerrilla resistance or in conflict zones. 
“La cuestión de las masas”, Estudios Centroamericanos, Universidad Centroamericana José Simeón Cañas, Vol. XLII, No. 465, July 1987, pp. 414–434.
France
In 2006, in its initial report to the Committee on the Rights of the Child under the 2000 Optional Protocol on the Involvement of Children in Armed Conflict, France stated:
The concept of direct or active participation in hostilities is not the subject of a detailed definition, whether in treaty law or in French domestic law. Thus the concept is only mentioned in article 3 common to the Geneva Conventions of 12 August 1949. In French law, it is referred to in the Criminal Code, part VI, article 436-1, under which participation in mercenary activity is illegal. Nevertheless, this legal concept is not subject to particular debate. As part of work by the International Committee of the Red Cross and the T.M.C. Asser law institute in the Netherlands, French experts are actively involved in the international process of drafting guiding principles in this field. Two seminars were organized in 2004 and 2005, and the work of this group is expected to continue in 2006. 
France, Initial report to the Committee on the Rights of the Child under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, UN Doc. CRC/C/OPAC/FRA/1, 6 November 2006, submitted 26 September 2006, § 5.
Germany
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Compensation for the victims of the Kunduz bombardment in the night of 4 September 2009”, Germany’s Federal Government wrote:
5. Based on which criteria and evidence does the Federal Government conclude that a person is to be considered an “enemy fighter” and in which way is the principle of the [1977] Additional Protocol I to the Geneva Conventions, which states that in case of doubt a person is to be considered a civilian, taken into consideration?
In the context of a non-international armed conflict, international humanitarian law permits governmental troops and troops supporting them to use direct military force against civilians directly participating in concrete hostilities … . Whether a person fulfils these conditions depends on the circumstances of the individual case. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Christine Buchholz, Sevim Dağdelen, Inge Höger, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 17/3723, 11 November 2010, p. 3.
Germany
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Killing of German nationals by a US drone attack – Intervention of the German judiciary”, the Federal Government wrote:
15. How does the Federal Government evaluate the legality of acts of targeted killing of persons within the context of international and non-international armed conflicts …?
International humanitarian law distinguishes in international and non-international armed conflicts between, on the one hand, armed forces opposing one another (international armed conflict) or armed forces and opposed organized armed groups (non-international [armed conflict]) and, on the other hand, civilians.
… [C]ivilians may in principle not be directly attacked and only lose protection from attack if and for such time as they directly participate in hostilities. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Jerzy Montag, Hans-Christian Ströbele, Omit Nouripour, further Members and the Parliamentary Group BÜNDNIS 90/DIE GRÜNEN, BT-Drs. 17/3916, 23 November 2010, p. 6.
India
According to the Report on the Practice of India, “any person in arms and acting against governmental authority” or “who contributes towards the furtherance of armed conflict” would fall within the definition of enemy and lose protection. 
Report on the Practice of India, 1997, Chapter 1.2.
Iraq
According to the Report on the Practice of Iraq, civilians lose their protection from attack if they engage in military acts or in acts that directly serve the armed forces and military operations, even without taking up arms against the other party. The report adds, however, that this exception should be interpreted restrictively in order to avoid abuse. 
Report on the Practice of Iraq, 1998, Chapter 1.2.
Israel
The Report on the Practice of Israel states:
Civilians would lose their protection … in those cases in which they are actively involved in hostile activities against Israeli soldiers, civilians or property. The implementation of this rule in practice is not always straightforward, for a variety of reasons, which include the following:
First – many activities, which undoubtedly assist in the carrying out of hostilities, fall in an undefined “grey area” (civilian truck-drivers, [staff of] vehicle repair workshops, etc.).
Second – the military commander in the field is often required to make decisions on the basis of incomplete information, available at the time of the attack. Therefore, while it may be easier to differentiate between protected civilians and others after the event, when more facts are known, it should be understood that any test which requires perfect knowledge of the facts on the ground would fail to meet the test of reality. As an example of the above, in Lebanon many civilians commonly carry firearms. Therefore, the fact that an individual openly carries a firearm does not, in and of itself, automatically relieve him of his protected status. Nevertheless, when returning fire, it is extremely difficult (and probably unwise from a military viewpoint) to differentiate between those individuals actually firing their firearms and those just carrying them. 
Report on the Practice of Israel, 1997, Chapter 1.2.
Israel
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
96. It is important to make clear what this principle [the Principle of Distinction] does not require. First, by definition, the principle of distinction does not forbid the targeting of … civilians who take a direct part in the hostilities.
98. Direct participation in hostilities has been interpreted by Israel’s High Court of Justice as involving all persons that perform the function of combatants, including “a civilian bearing arms (openly or concealed) who is on his way to the place where he will use them against the army, at such place, or on his way back from it,” as well as “a person who collected intelligence on the army, whether on issues regarding the hostilities … or beyond those issues … ; a person who transports unlawful combatants to or from the place where the hostilities are taking place; a person who operates weapons which unlawful combatants use, or supervises their operation, or provides service to them, be the distance from the battlefield as it may. 
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, §§ 96 and 98.
[footnotes in original omitted]
Israel
In July 2010, in a second update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated: “The principle of distinction is a core element of IDF [Israel Defense Forces] standing orders. All IDF soldiers are instructed that strikes are to be directed only against … civilians directly participating in hostilities”. 
Israel, Ministry of Foreign Affairs, Gaza Operation Investigations: Second Update, 19 July 2010, § 58.
Israel
In 2010, in a position paper submitted to the Public Commission to Examine the Maritime Incident of 31 May 2010 (the Turkel Commission), established by the Israeli Government to examine the Gaza flotilla incident, Israel’s Military Advocate General stated:
[W]hoever does not belong to the armed forces of the opposing side is a “civilian”, and as such is protected from direct and intentional attack (except during the time that he “takes a direct part in hostilities” – when he too constitutes a legitimate objective.  
Israel, position paper by the Military Advocate General on investigating allegations of violations of IHL, submitted to the Public Commission to Examine the Maritime Incident of 31 May 2010 (the Turkel Commission), 19 December 2010, Part B.
[footnotes in original omitted]
Jordan
On the basis of an interview with a high-ranking army officer, the Report on the Practice of Jordan states: “Civilians who take [a] direct part in hostilities are no longer considered civilians and cannot claim the privileges of combatant status.” 
Report on the Practice of Jordan, 1997, Interview with a high-ranking officer of the Jordanian army, Chapter 1.2.
Kuwait
According to the Report on the Practice of Kuwait, it is the opinio juris of Kuwait that direct participation in military operations results in the loss of the protection normally granted to civilians. 
Report on the Practice of Kuwait, 1997, Chapter 1.2.
Lebanon
The Report on the Practice of Lebanon states: “The Commission on Human Rights of the Lebanese Parliament is of the opinion that civilians lose their civilian status when they take part in military actions.” 
Report on the Practice of Lebanon, 1998, Chapter 1.2, referring to a statement of the Lebanese Parliamentary Commission on Human Rights.
This report further states that the Lebanese representative in the Israel-Lebanon Monitoring Group established pursuant to the application of the 1996 Israel-Lebanon Ceasefire Understanding considers that “civilians who co-operate in practice with the enemy in military operations and activities lose their civilian status and become military objectives liable to attack”. 
Report on the Practice of Lebanon, 1998, Answers to additional questions on Chapter 1.2.
Malaysia
On the basis of interviews with members of the armed forces, the Report on the Practice of Malaysia states that during the communist insurgency civilians lost their protection if they actively participated in the insurgency. Persons who merely provided support to the enemy, on the other hand, for example those who supplied it with weapons, food or medicine, or sympathizers, for example journalists who wrote articles supportive of the communist cause, did not lose their civilian status. 
Report on the Practice of Malaysia, 1997, Chapter 1.2, Interviews with members of the Malaysian armed forces.
The report notes, however, that this did not mean that they were not liable to prosecution under any written laws and refers to specific legislation in this respect. 
Report on the Practice of Malaysia, 1997, Chapter 1.2, referring to Revised Penal Code, 1997, Chapter VI, Sections 121–130, Official Secrets Act, 1972, Section 3 and Internal Security Act, 1960, Sections 57–62.
Mexico
At the CDDH, Mexico stated that it believed Article 46 of the draft Additional Protocol I (now Article 51) to be so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and undermine its basis”. 
Mexico, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 193.
Nigeria
The Report on the Practice of Nigeria states that it is the opinio juris of Nigeria that the rule that civilians are deprived of protection when they engage in hostilities against federal forces is part of customary international law. 
Report on the Practice of Nigeria, 1997, Chapter 1.2.
Philippines
The Report on the Practice of the Philippines says that civilians lose their protection when they become hostile elements and contribute militarily to the insurgents’ cause. These civilians, who can serve for example as spies, couriers or lookouts, are qualified by the military as “sympathizers” or “communist terrorists” and can be the object of a direct military attack in villages influenced or infiltrated by the Communist Party of the Philippines. 
Report on the Practice of the Philippines, 1997, Chapter 1.2.
Rwanda
On the basis of replies by army officers to a questionnaire, the Report on the Practice of Rwanda states that unarmed civilians who follow their armed forces during an international armed conflict in order to provide them with food, transport munitions or carry messages, for example, lose their status as civilians. In the context of an internal armed conflict, however, unarmed civilians who collaborate with one of the parties to the conflict always remain civilians. According to the report, this distinction is justified by the fact that in internal armed conflicts, civilians are forced to cooperate with the party that holds them in its power. 
Report on the Practice of Rwanda, 1997, Replies by Rwandan army officers to a questionnaire, Chapter 1.2.
Somalia
In 1998, an ICRC publication entitled “Spared from the Spear” recorded traditional Somali practice in warfare as follows: “[T]he man who, although belonging to one of the two groups involved in the conflict, did not himself take part in the fighting and did not carry any weapons … [was] generally spared. 
Somalia, Spared from the Spear, 1998, p. 41.
In 2011, in its comments on the concluding observations of the Human Rights Council concerning Somalia’s report, the Transitional Federal Government of Somalia referred to “Spared from the Spear” as its “own Geneva Conventions”:
In times of hostilities, the Biri-Ma-Geydo (Spared from the Spear), i.e. Somalia’s own “Geneva Conventions”[,] which existed long before the adoption of the Hague and Geneva Conventions, mitigated and regulated the conduct of clan hostilities and the treatment of immune groups. 
Somalia, Comments by the Transitional Federal Government of Somalia on the concluding observations of the Human Rights Council concerning the report of Somalia, submitted 21 September 2011, § 4.
Switzerland
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. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.1, pp. 7–8.
[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 hostilitiesˮ. 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 hostilitiesˮ, 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. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 14.
[footnotes in original omitted; emphasis in original]
Syrian Arab Republic
The Report on the Practice of the Syrian Arab Republic notes that the Syrian Arab Republic did not make any reservations to Article 51 of the 1977 Additional Protocol I and thus views the conditions stated in this Article as part of customary international law.  
Report on the Practice of the Syrian Arab Republic, 1997, Chapter 1.2.
United Kingdom of Great Britain and Northern Ireland
At the CDDH, the United Kingdom voted in favour of Article 46 of the draft Additional Protocol I (now Article 51), describing its first three paragraphs as containing a “valuable reaffirmation of existing customary rules of international law designed to protect civilians”. 
United Kingdom, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 164, § 119.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1980 Convention on Certain Conventional Weapons, the United Kingdom issued a declaration stating: “Civilians shall enjoy the protection afforded by this Convention unless and for such time as they take a direct part in hostilities.” 
United Kingdom, Declaration upon ratification of the Convention on Certain Conventional Weapons, 13 February 1995, § a(iii).
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to an oral question in the House of Lords asking “what in the circumstances of the Iraq of today constitutes the enemy”, the UK Parliamentary Under-Secretary of State for Defence stated: “My Lords, the potential enemy are all those, wherever and whoever they are, who seek to engage British forces in a hostile manner.” 
United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State for Defence, Hansard, 13 October 2003, Vol. 653, Debates, col. 600.
United Kingdom of Great Britain and Northern Ireland
The UK Government Strategy on the Protection of Civilians in Armed Conflict (2010) states: “During armed conflict, civilians and combatants ‘hors de combat’ are entitled to specific protection under international humanitarian law (IHL) providing that they are not, or are no longer, taking a direct part in hostilities.” 
United Kingdom, Foreign and Commonwealth Office, Government Strategy on the Protection of Civilians in Armed Conflict, March 2010, p. 4.
(emphasis in original)
United Kingdom of Great Britain and Northern Ireland
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated regarding common Article 3 of the 1949 Geneva Conventions: “On its face this protection is restricted to armed conflicts not of an international character. However, it is understood to apply in all forms of armed conflict as part of customary international law to set out the irreducible minimum standard.” 
United Kingdom, Ministry of Defence, Closing Submissions to the Baha Mousa Public Inquiry on Modules 1–3, 25 June 2010, § 10.2, p. 10.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We also support the principle … that immunity not be extended to civilians who are taking part in hostilities.” 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 426.
United States of America
In 1989, a US memorandum of law concerning the prohibition of assassination stated:
While there is general agreement among law-of-war experts that civilians who participate in hostilities may be regarded as combatants, there is no agreement as to the degree of participation necessary to make an individual civilian a combatant … There is a lack of agreement on this matter, and no existing law-of-war treaty provides clarification or assistance. Historically, however, the decision as to the level at which civilians may be regarded as combatants or “quasi-combatants” and thereby subject to attack generally has been policy rather than a legal matter. The technological revolution in warfare that has occurred over the past two centuries has resulted in a joining of segments of the civilian population with each nation’s conduct of military operations and vital support activities … Finally, one rule of thumb with regard to the likelihood that an individual may be subject to lawful attack is his (or her) immunity from military service if continued service in his (or her) civilian position is of greater value to a nation’s war effort than that person’s service in the military. A prime example would be civilian scientists occupying key positions in a weapons program regarded as vital to a nation’s national security or war aims. Thus, more than 90% of the World War II Project Manhattan personnel were civilians, and their participation in the U.S. atomic weapons program was of such importance as to have made them liable to legitimate attack. Similarly, the September 1944 Allied bombing raids on the German rocket sites at Peenemunde regarded the death of scientists involved in research and development at that facility to have been as important as destruction of the missiles themselves. 
United States, Department of the Army, Office of the Judge Advocate General, Memorandum of Law: Executive Order 12333 and Assassination, 2 November 1989, The Army Lawyer, Pamphlet 27-50-204, December 1989.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated: “As a general principle, the law of war prohibits … the direct, intentional attack of civilians not taking part in hostilities.” 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 622.
United States of America
The Report on US Practice states:
Under the practice of the United States, civilians lose immunity from direct attack if, and for so long as, they are committing hostile acts or otherwise taking a direct part in hostilities. These conditions may be met by bearing arms or by aiding the enemy with arms, ammunition, supplies, money or intelligence information or even by holding unauthorized intercourse with enemy personnel. Other acts might be considered to be taking a direct part in hostilities, depending on the intensity of the conflict and other circumstances. 
Report on US Practice, 1997, Chapter 1.2.
Zimbabwe
The Report on the Practice of Zimbabwe states: “Civilians lose their protection if they actively assist or actively become engaged in military operations. This may include giving logistical and/or intelligence support. A lot, however, will depend on the degree of involvement.” 
Report on the Practice of Zimbabwe, 1998, Chapter 1.2.
UN Sub-Commission on Human Rights
In a resolution adopted in 1985, the UN Sub-Commission on Human Rights ratified the point stated by the Special Representative of the Commission on Human Rights for El Salvador:
According to the Geneva Conventions as long as the so-called “masses” do not participate directly in combat, although they may sympathize, accompany, supply food and live in zones under the control of the insurgents, they preserve their civilian character, and therefore they must not be subjected to military attacks and forced displacement by Government forces. 
UN Sub-Commission on Human Rights, Res. 1985/18, 29 August 1985, § 3.
This statement was repeated in subsequent years. 
UN Sub-Commission on Human Rights, Res. 1987/18, 2 September 1987, § 3; Res. 1988/13, 1 September 1988, § 3; Res. 1989/9, 31 August 1989, § 3.
UN Commission on Human Rights (Special Representative)
In 1985, in a report on the situation of human rights in El Salvador, the Special Representative of the UN Commission on Human Rights stated:
The Special Representative is actually convinced that as a result of or during fighting, the Salvadorian army produces civilian, and thus unwarranted casualties, particularly among the so-called masas, or groups of peasants who, while not personally involved in the fighting, coexist with the guerrillas and supply them with means of subsistence. In any event, inasmuch as the so-called masas take no part in combat, they must be considered civilians. The reference in article 50 of the 1977 Additional Protocol to the Third Geneva Convention of 12 August 1949, means that any persons who follow armed forces without forming an integral part of them, such as suppliers and members of work units or service units responsible for troop welfare, must be considered civilians. In the view of the Special Representative, if the masas who accompany the guerrilla troops meet the conditions established in those international instruments, they cannot be considered combatants; they are civilians. 
UN Commission on Human Rights, Special Representative on the Situation of Human Rights in El Salvador, Final report, UN Doc. E/CN.4/1985/18, 1 February 1985, § 140.
UN Commission on Human Rights (Special Rapporteur)
In 1993, in a report on the situation of human rights in the territory of the former Yugoslavia, the Special Rapporteur of the UN Commission on Human Rights dealt with the subject of loss of civilian status in a section concerning events in the Medak area. On the basis of information gathered by field personnel revealing that civilians, including a number of elderly people, had been arbitrarily killed, the Special Rapporteur pointed out to the government that these acts were in violation of IHL and requested a full investigation to identify the perpetrators and punish them. Following preliminary inquiries, the Deputy Prime Minister and Minister of Foreign Affairs informed the Special Rapporteur that the individuals killed in the action, including the elderly, “were all killed in combat”.  
UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Fifth periodic report, UN Doc. E/CN.4/1994/47, 17 November 1993, § 105.
In a subsequent report, the Special Rapporteur cited the findings of the preliminary investigation led by the Vice-President of Croatia, which claimed that all the persons killed were combatants, but commented that he did not consider the Vice-President’s report as conclusive. 
UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Sixth periodic report, UN Doc. E/CN.4/1994/110, 21 February 1994, § 83.
UN Commission on the Truth for El Salvador
The report of the UN Commission on the Truth for El Salvador in 1993 described the government’s counter-insurgency policies as part of the pattern of violence employed by agents of the State and their collaborators. According to the report, inhabitants of areas where the guerrillas were active were automatically suspected of belonging to the guerrilla movement or collaborating with it and thus risked being executed. The report also depicted the pattern of violence employed by the Farabundo Martí para la Liberación Nacional (FMLN), which considered it legitimate to physically eliminate people who were labelled military targets, such as traitors or informers, and even political opponents. Examples of such practices included the murder of mayors, right-wing intellectuals, public officials and judges. The report added that instructions given by the FMLN General Command concerning the execution of mayors were broadly interpreted and extensively applied, in particular between 1985 and 1989, when the Ejército Revolucionario del Pueblo repeatedly carried out extrajudicial executions of political leaders, which the report called “non-combatant civilians”. The Commission expressly rejected the arguments of the FMLN, which tried to justify the executions on the grounds that the mayors and their officers were actively engaged in counter-insurgency activities, such as creating paramilitary forces, leading direct repressive activities against the civilian population or developing spy networks to detect FMLN members and their supporters. The movement further argued that the mayors had been listed as legitimate military targets since 1980. The Commission noted that by calling the mayors “military targets”, the FMLN was trying to say that they were combatants. It held that whether the mayors might or might not be considered as “military targets” was irrelevant since “there is no evidence that any of them lost their lives as a result of any combat operation by the FMLN”. The Commission emphasized that there was “no concept under international humanitarian law whereby such people could have been considered military targets”. 
UN Commission on the Truth for El Salvador, Report, UN Doc. S/25500, 1 April 1993, pp. 44–45.
The Commission added: “The execution of an individual, whether a combatant or a non-combatant, who is in the power of a guerrilla force and does not put up any resistance is not a combat operation.” 
UN Commission on the Truth for El Salvador, Report, UN Doc. S/25500, 1 April 1993, p. 151.
The Commission considered the execution of mayors as a violation of the rules of IHL and international human rights law. 
UN Commission on the Truth for El Salvador, Report, UN Doc. S/25500, 1 April 1993, pp. 149 and 153.
UN Commission on the Truth for El Salvador
In its report in 1993, the UN Commission on the Truth for El Salvador considered the legality of an attack by members of the Partido Revolucionario de Trabajadores Centroamericanos (one of the Farabundo Martí para la Liberación Nacional (FMLN) components) on a group of US marines then serving as security guards at the US Embassy in San Salvador. The attack took place as the victims, who were off duty, in civilian clothing and unarmed, were sitting at a table outside a restaurant. Following the attack, a communiqué issued by the FMLN General Command asserted that the four marines were legitimate military targets. The Commission noted, however, that it had full evidence that the US marines were not combatants. It stated:
Their function was to guard the United States Embassy and there is no indication whatsoever that they took part in combat action in El Salvador. Furthermore, international humanitarian law defines the category of “combatant” restrictively. The allegation that they were performing “intelligence functions” has not been substantiated. In any event, carrying out intelligence functions does not, in itself, automatically place an individual in the category of combatant. 
UN Commission on the Truth for El Salvador, Report, UN Doc. S/25500, 1 April 1993, p. 155.
No data.
No data.
International Criminal Court
In the Abu Garda case, the accused, Chairman and General Coordinator of Military Operations of the United Resistance Front in Darfur, Sudan, was charged, inter alia, with the war crime of intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission, within the meaning of Articles 8(2)(e)(iii) and 25(3)(a) of the 1998 ICC Statute. In its decision on the confirmation of charges in 2010, the Pre-Trial Chamber considered the meaning of “direct participation in hostilities”, stating:
78. Article 13 (3) of APII [the 1977 Additional Protocol II] provides that “civilians shall enjoy the protection afforded by [Part IV of the Protocol], unless and for such time as they take a direct part in hostilities” … The same exclusion applies, under article 2(2) of the Convention on the Safety of United Nations and Associated Personnel, to personnel engaged as combatants.
79. In this respect, article 50(1) of API [the 1977 Additional Protocol I] defines civilians as “any person who does not belong to one of the categories of persons referred to in Article 4(A)(1),(2),(3) and (6) of the [1949] Third [Geneva] Convention and in Article 43 of this Protocol.”
80. On the other hand, neither treaty law nor customary law expressly define what constitutes direct participation in hostilities. However, the Commentary to article 13 of APII provides guidance as to its meaning. According to the Commentary, “[h]ostilities have been defined as ‘acts of war’ that by their nature or purpose struck at the personnel and ‘matériel’ of enemy armed forces.” The Commentary further indicates that taking direct part in hostilities “implies that there is a sufficient causal relationship between the act of participation and its immediate consequences.”
81. Furthermore, in the Appeal Judgement in the Strugar case, the ICTY gave examples of “direct participation in hostilities”, as recognised in “military manuals, soft law, decisions of international bodies and the commentaries to the Geneva Conventions and the Additional Protocols”. These examples include: bearing, using or taking up arms, taking part in military or hostile acts, activities, conduct or operations, armed fighting or combat, participating in attacks against enemy personnel, property or equipment, transmitting military information for the immediate use of a belligerent, and transporting weapons in proximity to combat operations.
82. In the Lubanga case, the Chamber also held, in relation to the use of children under the age of fifteen years to actively participate in hostilities, that active participation in hostilities “means not only direct participation in hostilities, combat in other words, but also covers active participation in combat-related activities […].” [ICC, Lubanga case, Decision on the confirmation of charges, § 261]. 
ICC, Abu Garda case, Decision on the confirmation of charges, 8 February 2010, §§ 78–82.
[footnotes in original omitted; emphasis in original]
International Criminal Court
In its decision on the confirmation of charges in the Mbarushimana case in 2011, the ICC Pre-Trial Chamber I stated:
As highlighted in the Abu Garda Confirmation Decision, there is no customary or treaty law definition of what constitutes direct participation in hostilities, although useful guidance is provided by the International Committee of the Red Cross (“ICRC”). However, loss of protection is only clear when a civilian uses weapons or other means to commit violence against human or material enemy forces, unless in self-defense. Further, practice indicates that supplying food and shelter and sympathising with one belligerent party is an insufficient reason to deny civilians protection against attack. … Yet, civilians may lose protection only for such a time as they take direct part in hostilities or combat-related activities and not permanently. Further, the protection does not cease if such persons only use armed force in the exercise of their right to self-defence. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 148.
[footnotes in original omitted]
The charges against Mr Mbarushimana related to alleged war crimes and crimes against humanity. The Pre-Trial Chamber did not confirm the charges. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 340.
In its judgment of 30 May 2012, the ICC Appeals Chamber confirmed that decision and dismissed the appeal. 
ICC, Mbarushimana case, Judgment on Appeal, 30 May 2012.
International Criminal Tribunal for Rwanda
In its judgment in the Bagilishema case in 2001, the ICTR Trial Chamber stated: “To take a direct or active part in the hostilities covers acts which by their very nature or purpose are likely to cause harm to personnel and equipment of the armed forces.” 
ICTR, Bagilishema case, Judgment, 7 June 2001, § 104.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Simić case in 2003, the ICTY Trial Chamber stated:
The Trial Chamber does not accept that allegations about possession of weapons, in itself, creates a reasonable doubt as to the civilian status of the persons arrested and detained for possession of weapons. The evidence demonstrates that only a small number of detainees belonged to an armed SDA [Party of Democratic Action] paramilitary formation, giving rise to consideration as to whether they could be classified as combatants. The fact that most of them were arrested from their homes, combined with a lack of evidence that they participated in the armed conflict, clearly shows that they were not combatants, but rather, civilians, and consequently were not taken as prisoners of war. 
ICTY, Simić case, Judgment, 17 October 2003, § 659.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated:
The protection from attack afforded to individual civilians by Article 51 of Additional Protocol I is suspended when and for such time as they directly participate in hostilities. To take a “direct” part in the hostilities means acts of war which by their nature or purpose are likely to cause actual harm to the personnel or matériel of the enemy armed forces. As the Kupreskić Trial Chamber explained:
the protection of civilian and civilian objects provided by modern international law may cease entirely or be reduced or suspended […] if a group of civilians takes up arms […] and engages in fighting against the enemy belligerent, they may be legitimately attacked by the enemy belligerent whether or not they meet the requirements laid down in Article 4(A)(2) of the Third Geneva Convention of 1949.
… [I]ndividuals directly engaged in hostilities are considered to be legitimate military targets. 
ICTY, Galić case, Judgment, 5 December 2003, § 48.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kordić and Čerkez case in 2004, the ICTY Appeals Chamber stated:
Particular attention has to be paid to the situation of members of a Territorial Defence (TO) and as to whether they are to be considered as combatants at all times during the conflict or only when they directly take part in hostilities, that is, when they participate in acts of war which by nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy’s armed forces … [T]he Appeals Chamber considers that members of the armed forces resting in their homes in the area of the conflict, as well as members of the TO residing in their homes, remain combatants whether or not they are in combat, or for the time being armed. 
ICTY, Kordić and Čerkez case, Judgment on Appeal, 17 December 2004, § 51.
International Criminal Tribunal for the former Yugoslavia
In the Dragomir Milošević case before the ICTY in 2006, the accused, a former commander of the Sarajevo Romanija Corps (SRK), was charged, inter alia, with unlawful attacks on civilians as a violation of the laws or customs of war, punishable under Article 51 of the 1977 Additional Protocol I, Article 13 of the 1977 Additional Protocol II and Articles 3 and 7(1) and (3) of the 1993 ICTY Statute. 
ICTY, Dragomir Milošević case, Prosecution’s Submission of Amended Indictment Pursuant to Rule 50 and Trial Chamber’s Decision dated 12 December 2006, 18 December 2006, §§ 23–25, Counts 4 and 7.
In its judgment in 2007, the Trial Chamber stated:
The protection afforded to individual civilians by Article 51 of Additional Protocol I continues until such time as civilians take a direct part in hostilities. There is a need to distinguish between direct participation in hostilities and participation in the war effort. To take direct part in hostilities means to engage in acts of war which, by their nature or purpose, are likely to cause actual harm to the personnel or matériel of the enemy armed forces. A civilian who takes part in armed combat loses his or her immunity and becomes a legitimate target. 
ICTY, Dragomir Milošević case, Judgment, 12 December 2007, § 947.
International Criminal Tribunal for the former Yugoslavia
In the Strugar case, the accused, a commander in the Yugoslav People’s Army (JNA), was convicted of, inter alia, attacks on civilians as a violation of the laws or customs of war (Article 3 of the 1993 ICTY Statute), for his role in conducting a military campaign against the Dubrovnik region of Croatia. In its judgment in the case in 2008, the ICTY Appeals Chamber considered the definition of direct participation in hostilities, stating:
172. In order to prove cruel treatment as a violation of Common Article 3 [of the 1949 Geneva Conventions] under Article 3 of the [1993 ICTY] Statute, the Prosecution must prove beyond a reasonable doubt that the victim of the alleged offence was a person taking no active part in the hostilities.
173. In Kordić and Čerkez, the Appeals Chamber defined the notion of direct participation in hostilities set out in Article 51(3) of [the 1977] Additional Protocol I as encompassing acts of war which by their nature or purpose are likely to cause actual harm to the personnel or equipment of the enemy’s armed forces. The Appeals Chamber considers the concepts of “active participation” under Common Article 3 and “direct participation” under Additional Protocol I to be synonymous for the present purposes. Nevertheless, as the present case requires that the definition of this concept be addressed in more detail and in different circumstances, which was not necessary in the Kordić and Čerkez case, the Appeals Chamber will expand below upon its previous reasoning.
174. The notion of participation in hostilities is of fundamental importance to international humanitarian law and is closely related to the principle of distinction between combatants and civilians. Pursuant to Additional Protocol I, combatants have the right to participate directly in hostilities and civilians enjoy general protection against dangers arising from military operations unless and for such time as they take a direct part in hostilities. As a result, a number of provisions of international humanitarian law conventions refer to the concept of participation in hostilities.
175. While neither treaty law, nor customary law expressly define the notion of active or direct participation in hostilities beyond what has been stated above, references to this notion in international humanitarian law conventions do provide guidance as to its meaning. Common Article 3 itself provides examples of persons other than civilians taking no active part in the hostilities, namely “members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause”. Article 41(2) of Additional Protocol I states that a person will be hors de combat if he “is in the power of an adverse Party”, “clearly expresses an intention to surrender” or “has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself” provided that “he abstains from any hostile act and does not attempt to escape”. A contrario, the notion of active participation in hostilities encompasses armed participation in combat activities.
176. Conduct amounting to direct or active participation in hostilities is not, however, limited to combat activities as such. Indeed, Article 67(1)(e) of Additional Protocol I draws a distinction between direct participation in hostilities and the commission of “acts harmful to the adverse party” while Article 3(1) of the [1989 UN] Mercenaries Convention distinguishes between direct participation in hostilities and participation “in a concerted act of violence”. The notion of direct participation in hostilities must therefore refer to something different than involvement in violent or harmful acts against the adverse party. At the same time, direct participation in hostilities cannot be held to embrace all activities in support of one party’s military operations or war effort. This is made clear by Article 15 of [1949] Geneva Convention IV, which draws a distinction between taking part in hostilities and performing “work of a military character”. Moreover, to hold all activities in support of military operations as amounting to direct participation in hostilities would in practice render the principle of distinction meaningless.
177. The Appeals Chamber also takes note of examples of direct and indirect forms of participation in hostilities included in military manuals, soft law, decisions of international bodies and the commentaries to the Geneva Conventions and the Additional Protocols. Examples of active or direct participation in hostilities include: bearing, using or taking up arms, taking part in military or hostile acts, activities, conduct or operations, armed fighting or combat, participating in attacks against enemy personnel, property or equipment, transmitting military information for the immediate use of a belligerent, transporting weapons in proximity to combat operations, and serving as guards, intelligence agents, lookouts, or observers on behalf of military forces. Examples of indirect participation in hostilities include: participating in activities in support of the war or military effort of one of the parties to the conflict, selling goods to one of the parties to the conflict, expressing sympathy for the cause of one of the parties to the conflict, failing to act to prevent an incursion by one of the parties to the conflict, accompanying and supplying food to one of the parties to the conflict, gathering and transmitting military information, transporting arms and munitions, and providing supplies, and providing specialist advice regarding the selection of military personnel, their training or the correct maintenance of the weapons.
178. On the basis of the foregoing, the Appeals Chamber holds that in order to establish the existence of a violation of Common Article 3 [of the 1949 Geneva Conventions] under Article 3 of the [1993 ICTY] Statute, a Trial Chamber must be satisfied beyond a reasonable doubt that the victim of the alleged offence was not participating in acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the enemy’s armed forces. Such an enquiry must be undertaken on a case-by-case basis, having regard to the individual circumstances of the victim at the time of the alleged offence. As the temporal scope of an individual’s participation in hostilities can be intermittent and discontinuous, whether a victim was actively participating in the hostilities at the time of the offence depends on the nexus between the victim’s activities at the time of the offence and any acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the adverse party. If a reasonable doubt subsists as to the existence of such a nexus, then a Trial Chamber cannot convict an accused for an offence committed against such a victim under Article 3 of the [1993 ICTY] Statute. 
ICTY, Strugar case, Judgment on Appeal, 17 July 2008, §§ 172–178.
[emphasis in original; footnotes in original omitted]
Special Court for Sierra Leone
In its judgment in the Fofana and Kondewa case in 2007, the SCSL Trial Chamber stated:
134. Article 13(3) of Additional Protocol II provides that civilians are immune from attack for as long as they do not take a direct part in hostilities. The question of whether civilians have participated directly in hostilities has to be decided on the specific facts of each case and there must be a sufficient causal relationship between the act of participation and its immediate consequences. The Chamber takes the view that the direct participation should be understood to mean “acts which by their nature and purpose, are intended to cause actual harm to the enemy personnel and material.”
135. The Chamber is therefore of the opinion that persons Accused of “collaborating” with the government or armed forces would only become legitimate military targets if they were taking direct part in the hostilities. Indirectly supporting or failing to resist an attacking force is insufficient to constitute such participation. In addition, even if such civilians could be considered to have taken a direct part in hostilities, they would only have qualified as legitimate military targets during the period of their direct participation. If there is any doubt as to whether an individual is a civilian he should be presumed to be a civilian and cannot be attacked merely because he appears dubious. When it comes to establishing civilian status for the purposes of a criminal prosecution, however, it is the Prosecution which bears the onus of doing so. 
SCSL, Fofana and Kondewa case, Judgment, 2 August 2007, §§ 134–135.
Special Court for Sierra Leone
In the Sesay case before the SCSL, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, and the accused Gbao, senior commander in the RUF and AFRC/RUF forces, were each charged with eight counts of crimes against humanity, eight counts of war crimes, and two counts of other serious violations of international humanitarian law. In its judgment in the case in 2009, the Trial Chamber, in considering whether “collaborators” or police officers would be categorized as directly participating in hostilities, stated:
86. The Appeals Chamber has confirmed that perceived “collaborators” are accorded civilian status under international law. The Chamber is of the opinion that persons accused of “collaborating” with the government or armed forces would only become legitimate military targets if they were taking direct part in the hostilities. Indirectly supporting or failing to resist an attacking force is insufficient to constitute such participation. In addition, even if such civilians could be considered to have taken a direct part in hostilities, they would only qualify as legitimate military targets during the period of their direct participation. If there is any doubt as to whether an individual is a civilian he should be presumed to be a civilian and cannot be attacked merely because he appears dubious. When it comes to establishing civilian status for the purposes of a criminal prosecution, however, it is the Prosecution which bears the onus of doing so.
102. The Chamber acknowledges that Common Article 3 [of the 1949 Geneva Conventions] applies to “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause” while [the 1977] Additional Protocol II applies to “all persons who do not take a direct part or who have ceased to take part in hostilities”. We hold that these phrases are so similar that they should, therefore, be treated as synonymous and be categorised as “all persons not taking direct part in the hostilities at the time of the alleged violation”. Similarly, collaborators or police officers are protected persons for so long as they do not directly participate in hostilities.
103. The Chamber further recalls that the test applied by the ICTY Trial Chamber in the Tadic case was whether, at the time of the alleged offence, the alleged victim of the offence was directly taking part in “those hostilities in the context of which the alleged offences are said to have been committed.” [ICTY, Tadić case, Judgement, § 615] Adopting the position taken by the ICTY Trial Chamber in the Tadic Trial Judgement, this Chamber holds that it does not serve any useful purpose to embark upon an exhaustive definition of the categories of persons who may be said not to be taking a direct part in hostilities.
104. The Chamber observes that Article 13(3) of Additional Protocol II provides that civilians are immune from attack for as long as they do not take a direct part in hostilities. The question of whether civilians have participated directly in hostilities has to be decided on the specific facts of each case and there must be a sufficient causal relationship between the act of participation and its immediate consequences. The Chamber takes the view that the direct participation should be understood to mean “acts which by their nature or purpose, are intended to cause actual harm to the enemy personnel and material”. 
SCSL, Sesay case, Judgment, 2 March 2009, §§ 86 and 102–104.
[footnotes in original omitted]
The Trial Chamber also considered the definition of hostilities, stating:
1720. The Chamber recalls the accepted view in international humanitarian law that hostilities are acts which by their nature or purpose are intended to cause damage or actual harm to the adversary party. We have endorsed the proposition that the concept of hostilities encompasses not only combat operations but also military activities linked to combat such as the use of children at military checkpoints or as spies. The types of acts that may be characterised as hostilities, in the Chamber’s view, may differ depending on the particularities of each armed conflict and the modus operandi of the warring factions.
1723. … The Chamber is mindful that an overly expansive definition of active participation in hostilities would be inappropriate as its consequence would be that children associated with armed groups lose their protected status as persons hors de combat under the law of armed conflict. Nonetheless, the Chamber finds that the nature and purpose of the crimes committed against civilians warrants their characterisation as active participation in hostilities. The Chamber considers this interpretation necessary to ensure that children are protected from any engagement in violent functions of the armed group that directly support its conflict against the adversary and in which the child combatant would be a legitimate military target for the opposing armed group or groups.
1724. The Chamber therefore concludes that in the context of an armed conflict where violence against civilians was an integral and defining feature of the conduct of hostilities, the concept of active participation in hostilities encompasses crimes committed against civilians. 
SCSL, Sesay case, Judgment, 2 March 2009, §§ 1720 and 1723–1724.
[footnotes in original omitted]
Inter-American Commission on Human Rights
In 1997, the Inter-American Commission on Human Rights considered the events that took place at La Tablada in Argentina on 23 January 1989, when 42 armed individuals launched an attack against an Argentine army barracks. The attackers alleged that the purpose of the attack was to prevent an imminent military coup d’état that was supposedly being planned there. The arrival of Argentine military personnel resulted in a skirmish of approximately 30 hours, which left 29 of the attackers and several State agents dead. The Commission, seized by surviving attackers, concluded that even if the clash was brief in duration, common Article 3 of the 1949 Geneva Conventions and other relevant rules regarding the conduct of internal conflict were applicable. The Commission stated that when civilians, such as those who attacked the base at La Tablada, assumed the role of combatants by directly taking part in fighting, whether singly or as members of a group, they thereby became legitimate military targets, but only for such time as they actively participated in the combat. As soon as they ceased their hostile acts and thus fell under the power of Argentinian State agents, they could no longer be lawfully attacked or subjected to acts of violence. 
Inter-American Commission on Human Rights, Case 11.137 (Argentina), Report, 18 November 1997, §§ 177–178, 189 and 328.
Inter-American Commission on Human Rights
In 1999, in a report on human rights in Colombia, the Inter-American Commission on Human Rights stated that it believed that it was necessary to clarify the distinction between “direct” or “active” and “indirect” participation by civilians in hostilities in order to identify those limited situations in which it was not unlawful to attack civilians. It maintained that it was generally understood in IHL that the phrase “direct participation in hostilities” meant acts which, by their nature or purpose, were intended to cause actual harm to enemy personnel and material. The Commission made clear that such participation also suggested a “direct causal relationship between the activity engaged in and harm done to the enemy at the time and place where the activity takes place”. The Commission upheld the view that:
Civilians whose activities merely support the adverse party’s war or military effort or otherwise only indirectly participate in hostilities cannot on these grounds alone be considered combatants. This is because indirect participation, such as selling goods to one or more of the armed parties, expressing sympathy for the cause of one of the parties or, even more clearly, failing to act to prevent an incursion by one of the armed parties, does not involve acts of violence which pose an immediate threat of actual harm to the adverse party. 
Inter-American Commission on Human Rights, Third report on human rights in Colombia, Doc. OEA/Ser.L/V/II.102 Doc. 9 rev. 1, 26 February 1999, Chapter IV, §§ 53 and 56.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “Civilian persons may not be attacked unless they participate directly in hostilities.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 208.
ICRC
In an appeal issued in October 1973, the ICRC urged all the belligerents in the conflict in the Middle East (Egypt, Iraq, Israel and the Syrian Arab Republic) to observe forthwith, in particular, the provisions of, inter alia, Article 46(2) of the draft Additional Protocol I, which stated: “Civilians enjoy the protection afforded by this Article unless and for such time as they take a direct part in hostilities.” All governments concerned replied favourably. 
ICRC, The International Committee’s Action in the Middle East, IRRC, No. 152, 1973, pp. 584–585.
Sudan People’s Liberation Movement/Army (SPLM/A)
The Penal and Disciplinary Laws (1984) of the SPLM/A state that the following are “declared enemies of the people and therefore target of the SPLA/SPLM”:
a) The incumbent administration of Jaafer Mohammed Nimeiri, its appendages and supporting institutions.
b) Any subsequent reactionary administration that may emerge while the revolutionary war is still being waged.
c) Any individual or group of individuals directly or indirectly cooperating with the autocratic regime in Khartoum in order to sustain or consolidate its rule and to undermine the objectives and efforts of the People’s Revolution.
d) Any individual or group of individuals who wage counter-revolutionary war against the SPLA/SPLM or who circulate any subversive literature, verbally or in written form against the SPLA/SPLM with the intent to discredit it or turn public opinion against it.
e) Persons acting as agents or spies for the Sudan Government.
f) Armed bandits that operate to rob ordinary citizens, rape their women or commit any other crime against them, their movable or immovable properties or any other property of the People’s revolution.
g) Individuals or groups of people who propagate or advocate ideas, ideologies or philosophies or organize societies and organizations inside the country or abroad, that tend to uphold or perpetuate the oppression of the people or their exploitation by the Khartoum regime or by any other system of similar nature. 
SPLM/A, Penal and Disciplinary Laws, 4 July 1984, Section 29, § 1c, Report on SPLM/A Practice, 1998, Chapter 1.2.
Americas Watch
In 1985, in a report on violations of the laws of war in Nicaragua, Americas Watch stated:
With respect to the internal conflict in Nicaragua, the following persons should be regarded as civilians:
1. The peaceful population not directly participating in hostilities;
2. Persons providing only indirect support to the Nicaraguan army by, inter alia, working in defense plants, distributing or storing military supplies in rear areas, supplying labor and food, or serving as messengers or disseminating propaganda. These persons may not be subject to direct individualized attack or execution since they pose no immediate threat to the adversary. However, they assume the risk of incidental death or injury arising from attacks against legitimate military targets.
Persons providing such indirect support to the contras are clearly subject to prosecution under domestic law for giving aid and comfort to the insurgents.
3. Persons (not members of the parties’ armed forces) who do not actually take a direct part in the hostilities by trying to kill, injure or capture enemy combatants or to damage material. These civilians, however, lose their immunity from attack for such time as they assume a combatant’s role. Included in this category would be armed civilian members of the self-defense groups who guard rural cooperatives, farms and plants against contra attack. 
Americas Watch, Violations of the Laws of War by Both Sides in Nicaragua: 1981–1985, New York, March 1985, pp. 31–32.
[emphasis in original]
Americas Watch reiterated this view in 1986 in its report on the use of landmines in the conflicts in El Salvador and Nicaragua. 
Americas Watch, Land Mines in El Salvador and Nicaragua: The Civilian Victims, New York, December 1986, pp. 97–98.
Africa Watch
In 1989, in a report on violations of the laws of war in Angola, Africa Watch stated:
The following persons should be considered civilians and thus not subjected to direct attack by combatants or by land mines:
A. The peaceful population not directly participating in hostilities.
B. i. Persons providing only indirect support to the Angolan, Cuban, or South African armed forces or UNITA by, inter alia, working in defense plants, distributing or storing military supplies behind conflict areas, supplying labor and food, serving as messengers, or disseminating propaganda. These persons may not be subject to direct individualized attack because they pose no immediate threat to the adversary. They assume, however, the risk of incidental death or injury arising from attacks and the use of weapons against legitimate military targets.
ii. Persons providing indirect support to UNITA or its South African ally are clearly subject to prosecution under the domestic laws of Angola for giving aid and comfort to the enemy.
C. Persons, other than members of the parties’ armed forces, who do not actually take a direct part in the hostilities by trying to kill, injure, or capture enemy combatants or to damage material. These civilians, however, temporarily lose their immunity from attack whenever they assume a combatant’s role. 
Africa Watch, Angola: Violations of the Laws of War by Both Sides, New York, April 1989, pp. 138–139.
Front Patriotique Rwandais (FPR)
In 1994, in reply to a report on violations of human rights in Rwanda, the FPR stated that “its combatants had only killed armed civilians engaged in combat who could not be distinguished from the regular soldiers of the Rwandan army”. 
Association rwandaise pour la défense des droits de la personne et des libertés publiques, Rapport sur les droits de l’homme au Rwanda, octobre 1992–octobre 1993, Kigali, December 1993, p. 115.
Amnesty International
In 2001, in a report on Israel and the occupied territories, Amnesty International referred to Article 51(3) of the 1977 Additional Protocol I, although this instrument had not been ratified by Israel, and stated:
Palestinians engaged in armed clashes with Israeli forces are not combatants. They are civilians who lose their protected status for the duration of the armed engagement. They cannot be killed at any time other than while they are firing upon or otherwise posing an immediate threat to Israeli troops or civilians. Because they are not combatants, the fact that they participated in an armed attack at an earlier point cannot justify targeting them for death later on. 
Amnesty International, Israel and the Occupied Territories: State Assassinations and Other Unlawful Killings, AI Index MDE 15/005/2001, London, 21 February 2001, p. 29.
Additional Protocol I
Article 50(3) of the 1977 Additional Protocol I provides: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 50(3). Article 50 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 161.
Additional Protocol II (draft)
Article 25(3) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided: “The presence, within the civilian population, of individuals who do not fall within the definition of civilians does not deprive the population of its civilian character.” 
CDDH, Official Records, Vol. I, Part Three, Draft Additional Protocols, June 1973, p. 40.
This draft provision was adopted by consensus in Committee III of the CDDH. 
CDDH, Official Records, Vol. XV, CDDH/215/Rev.1, 3 February–18 April 1975, p. 290, § 121.
Eventually, however, it was deleted in the plenary by consensus. 
CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 135.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 50(3) of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 50(3) of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
Argentina
Argentina’s Law of War Manual (1989) states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.02(1).
Canada
Canada’s LOAC Manual (1999) states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-4, § 35.
Canada
Canada’s LOAC Manual (2001), in its chapter on targeting, states: “The civilian population comprises all persons who are civilians. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 426.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
Lesson 1. Basic notions of IHL
The principle of distinction specifies who and what can be attacked and who and what cannot be attacked.
- Who and what cannot be attacked?
- Civilians,
- Civilian population, …
NB: The presence of servicemen among a crowd of civilians does not change the nature of the civilian population.
Lesson 2. Identification
II.1 Protected persons and objects
- Civilian population: entirety of civilians. The presence within the civilian population of individuals who are not civilians does not deprive that population of that character. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 13–15 and 17–19.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
II.3. The civilian population
The civilian population consists of civilian persons. In the law of armed conflict, the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 31; see also Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 31.
Kenya
Kenya’s LOAC Manual (1997) states: “The presence within the civilian population of individual combatants does not deprive the population of its civilian character and of the protection accorded to it.” 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 10.
Netherlands
The Military Manual (1992) of the Netherlands contains a rule identical to Article 50(3) of the 1977 Additional Protocol I. 
Netherlands, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, p. V-2.
Netherlands
The Military Manual (2005) of the Netherlands states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0506; see also § 0805 (protection of the civilian population).
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its non-combatant character.” 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 25.
Spain
Spain’s LOAC Manual (1996) states: “The civilian population does not lose its civilian character by the fact that persons who are not civilians are present among the civilian population.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 4.5.b.(1).
Spain
Spain’s LOAC Manual (2007) states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 4.5.b.(1).(b).
Sweden
Sweden’s IHL Manual (1991) states:
The presence of individual combatants, for example among gatherings of people, has sometimes entailed a belligerent considering himself entitled to launch an attack on the gathering, with particularly serious consequences. It is therefore laid down in Article 50 [of the 1977 Additional Protocol I] that the presence of individual combatants within the civilian population may not deprive this population of its civilian character and thus its protection. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, pp. 42–43.
Ukraine
Ukraine’s IHL Manual (2004) states: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character and of its protection under international humanitarian law.” 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.32.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “The presence among the civilian population of persons who are not civilians does not deprive that population of its civilian character.” 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 67(3).
Croatia
On the basis of Croatia’s Constitution (1990) and Defence Law (1993), the Report on the Practice of Croatia states that Article 50 of the 1977 Additional Protocol I is directly applicable in Croatia’s internal legal order. 
Report on the Practice of Croatia, 1998, Answers to additional questions on Chapter 1, referring to Constitution, 1990, Article 134 and Defence Law, 1993, Article 39.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 50(3), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Bosnia and Herzegovina
In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina stated:
[T]he abovementioned persons, among others, were arrested in their place of residence or work, in hors de combat situation, and thus are legally qualified as civilians. Contrary to the argument made by the Defense, the Court emphasizes that “civilian” means predominantly civilian, as established by the ICTY: “A population may be considered as civilian even if certain non-civilians are present; it must simply be predominantly civilian” Kordić and Čerkez case, Judgement, 26 February 2001, para. 180]. Indeed, even the presence of those involved in the conflict does not deprive [a] population of [its] civilian nature. Civilian includes those who were members of a resistance movement and former combatants but who are no longer taking part in hostilities. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Lučić case, Judgment, 19 September 2007, pp. 65–66.
[footnotes in original omitted]
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
A population shall be considered to be a “civilian population” if it is predominantly civilian in nature. The term “civilian population” comprises every civilian person. The presence of members of the armed forces or irregular armed groups, persons hors de combat, persons actively involved in the conflict or any other person who does not come within the definition of “civilian” does not deprive the population of its civilian character. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment, 25 April 2007, p. 83.
Peru
In 2006, in the Lucanmarca case, the Second Provisional Criminal Chamber of Peru’s Supreme Court of Justice stated:
In no case during an armed conflict may a civilian population be considered to be a military objective, even if it is composed of ordinary persons, State officials, members of the armed forces not participating in military operations and other protected persons. 
Peru, Supreme Court of Justice, Second Provisional Criminal Chamber, Lucanmarca case, Case No. 560-03, Judgment, 13 October 2006, p. 193.
In no case during an armed conflict may a civilian population be considered to be a military objective, even if it is composed of ordinary persons, State officials, members of the armed forces not participating in military operations and other protected persons. 
Peru, Supreme Court, Abimael Guzmán Reinoso and Others case, Judgment, 13 October 2006, p. 193.
Israel
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated: “The presence of enemy combatants among the civilian populations shall not deny the civilian character of the population.” 
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 226.
No data.
No data.
No data.
Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber considered the character of the civilian population in relation to the chapeau requirements for crimes against humanity. The Trial Chamber stated:
305. The jurisprudence of the ad hoc Tribunals has stressed that this population must be “predominantly civilian” and “the primary object of the attack.” This does not imply that the population shall be comprised only of civilians. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. The civilian status of the victims, the number of civilians, and the proportion of civilians within a population are factors relevant to the determination of whether the requirement that an attack be directed against a “civilian population” is fulfilled.
306. For the purposes of this chapeau requirement, the ad hoc Tribunal jurisprudence has evaluated situations in which civilians and soldiers co-exist within the same geographical area subjected to an attack, and where victims of alleged crimes against humanity comprise both civilians and military personnel. The ICTY Appeals Chamber has noted that when discussing “whether a population is civilian based on the proportion of civilians and combatants within it, that is, [where] the status of the population has yet to be determined or may be changing due to the flow of civilians and military personnel”, it is inevitable in wartime conditions that combatants may become intermingled with the civilian population. However, “provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.” [ICTY, Galić case, Judgement on Appeal, § 137]. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 305–306.
[footnotes in original omitted]
International Criminal Court
In its decision on the confirmation of charges in the Mbarushimana case in 2011, the ICC Pre-Trial Chamber I stated: “[P]ursuant to article 50(3) of the AP I [1977 Additional Protocol I], the presence within the civilian population of individuals who do not fit within the definition of civilians does not deprive the entire population of its civilian character.” 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 148.
(footnotes in original omitted) The charges against Mr Mbarushimana related to alleged war crimes and crimes against humanity. The Pre-Trial Chamber did not confirm the charges. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 340.
In its judgment of 30 May 2012, the ICC Appeals Chamber confirmed that decision and dismissed the appeal. 
ICC, Mbarushimana case, Judgment on Appeal, 30 May 2012.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Tadić case in 1997, the ICTY Trial Chamber stated: “It is clear that the targeted population [of a crime against humanity] must be of predominantly civilian nature. The presence of certain non-civilians in their midst does not change the character of the population.” 
ICTY, Tadić case, Judgment, 7 May 1997, § 638; see also § 643 and Mrkšić case, Review of the Indictment, 3 April 1996, § 29.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case in 2000, the ICTY Trial Chamber stated:
Even if it can be proved that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements, still no justification would exist for widespread and indiscriminate attacks against civilians. Indeed, even in a situation of full-scale armed conflict, certain fundamental norms still serve to unambiguously outlaw such conduct, such as rules pertaining to proportionality. 
ICTY, Kupreškić case, Judgment, 14 January 2000, § 513.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated: “The presence of individual combatants within the population does not change its civilian character.” 
ICTY, Galić case, Judgment, 5 December 2003, § 50.
In its judgment in 2006, the ICTY Appeals Chamber clarified the position with regard to the presence of combatants within a civilian population:
136. … [T]he Appeals Chamber finds that the jurisprudence of the International Tribunal in this regard is clear: the presence of individual combatants within the population attacked does not necessarily change the fact that the ultimate character of the population remains, for legal purposes, a civilian one. If the population is indeed a “civilian population”, then the presence of combatant within that population does not change that characterisation. In the Kordić and Čerkez Appeal Judgement, the Appeals Chamber stated:
The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. [Kordić and Čerkez Appeal Judgement, § 50]
The Appeals Chamber considers that Article 50 of Additional Protocol I contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law. [Kordić and Čerkez Appeal Judgement, § 97]
137. If, however, one is discussing whether a population is civilian based on the proportion of civilians and combatants within it, that is, the status of the population has yet to be determined or may be changing due to the flow of civilians and military personnel, then the conclusion is slightly different. The Blaškić Appeal Judgement qualified the general proposition of the Kordić and Čerkez Appeal Judgement with an important addendum. It states, quoting the ICRC Commentary, that “in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.” As such, the Appeals Chamber in Blaškić found [in § 115] that “in order to determine whether the presence of solders within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined”. 
ICTY, Galić case, Judgment on Appeal, 30 November 2006, §§ 136–137.
[emphasis in original]
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kordić and Čerkez case in 2004, the ICTY Appeals Chamber stated: “The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” 
ICTY, Kordić and Čerkez case, Judgment on Appeal, 17 December 2004, § 50.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Blaškić case in 2004, the ICTY Appeals Chamber considered that “the presence within a population of members of resistance groups, or former combatants, who have laid down their arms, does not alter its civilian characteristic”. The Trial Chamber was correct in this regard.” 
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, § 113.
The Appeals Chamber further stated:
The Trial Chamber also stated that the “presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population”. The ICRC Commentary on this point states:
…in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population. [ICRC Commentary, Additional Protocol I, p. 612, § 1922]
Thus, in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined. 
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, § 115.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Blagojević and Jokić case in 2005, the ICTY Trial Chamber stated:
The term “civilian” refers to persons not taking part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds detention or any other cause. It is a principle of customary international law that these persons are protected in armed conflicts. The presence within a population of members of resistance groups or former combatants who have laid down their arms does not alter its civilian character. A population is considered a “civilian population” if it is predominantly civilian in nature. It is not necessary to demonstrate that the victims are linked to any particular side of the armed conflict. The Appeals Chamber has recently emphasised [Blaškić Appeal Judgement, § 109] that “there is an absolute prohibition on the targeting of civilians in customary international law.” 
ICTY, Blagojević and Jokić case, Judgment, 17 January 2005, § 544.
International Criminal Tribunal for the former Yugoslavia
In the Martić case, the accused, who had held various leadership positions in the so-called “Serbian Autonomous District (SAO) Krajina” and the “Republic of Serbian Krajina (RSK)”, was convicted of, inter alia, murder and torture as violations of the laws and customs of war and as crimes against humanity. In its judgment in the case in 2008, the ICTY Appeals Chamber considered whether the requirement of Article 5 of the 1993 ICTY Statute that the attack be directed against a civilian population meant that all victims of each crime must have civilian status, particularly persons hors de combat. The Appeals Chamber stated:
304. … [P]rovisions of the [1993 ICTY] Statute must be interpreted according to the “natural and ordinary meaning in the context in which they occur” [Tadić case, Judgement on Appeal, §§ 282–283 and § 285], taking into account their object and purpose. Article 5 of the Statute reads, in part:
The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population […]
305. When dealing with the expression “directed against any civilian population”, the Tribunal has interpreted it as requiring “that the acts be undertaken on a widespread or systematic basis” [Tadić case, Judgement, § 626]. The Appeals Chamber has indeed clarified that
[t]he expression ‘directed against’ is an expression which ‘specifies that in the context of a crime against humanity the civilian population is the primary object of the attack.’ In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war. To the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst. [Kunarac case, Judgement on Appeal, § 91]
Thus, on the face of it, the requirement that the acts of an accused must be part of a widespread or systematic attack directed against any civilian population does not necessarily imply that the criminal acts within this attack must be committed against civilians only. The chapeau rather requires a showing that an attack was primarily directed against a civilian population, rather than “against a limited and randomly selected number of individuals.” [Kunarac case, Judgement on Appeal, § 90]
306. Relevant interpretative sources tend to show that the drafters of the Statute did not in fact intend to exclude persons hors de combat from the purview of victims under Article 5. In its discussion of crimes against humanity, the Report of the Secretary-General recommending the establishment of the Tribunal expressly referred to Common Article 3. Moreover, in its report, the Commission of Experts Established Pursuant to Security Council Resolution 780 referred to Common Article 3 and noted as well that article 4 of Additional Protocol II addressed “fundamental guarantees” and included in the protected group “all persons who do not take a direct part or who have ceased to take part in hostilities.”
307. Indeed, in the cases cited by the parties to support their interpretations of the meaning of “civilian” referenced above, the issue at stake was whether a population as a whole could be regarded as “civilian”, while single individuals in its midst – the exact number depending on the circumstances – could still be combatants without modifying the status of the population as a whole. These statements were made by the Appeals Chamber in the context of illustrating the scope of the “well-established jurisprudence regarding the chapeau element of ‘civilian population’.” Thus, the authorities cited by the Trial Chamber in order to exclude persons hors de combat from the victims of crimes against humanity (as opposed to the category of persons who may be object of the attack according to the chapeau of Article 5) are misleading. There is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians.
308. The Appeals Chamber notes that this approach has been followed by the Tribunal, albeit implicitly, in a number of cases. Nothing for instance suggests that in the Krstić case, the Trial Chamber or the Appeals Chamber required a distinction between the categories of victims – civilian and persons hors de combat according to international humanitarian law – in order to reach a finding on extermination as a crime against humanity. The other final judgements related to the Srebrenica massacre adhered to the same line of reasoning. A similar conclusion follows from an analysis of the more recent Brđanin Appeal Judgement. It should be noted that, in these and other cases, the Tribunal has generally discussed victims of crimes against humanity simply as “persons”, “people”, or “individuals” targeted during a widespread and systematic attack against the civilian population, without attempting to establish whether single victims were “civilians” in the sense of international humanitarian law. The relevance of the “civilian population”, however, of course remained for the purpose of the chapeau requirement.
309. The Appeals Chamber is satisfied that this approach reflects customary international law. The Nuremberg Charter and Allied Control Council Law No. 10 identified crimes against humanity of murder, extermination, enslavement, and deportation as crimes being committed against “any civilian population”, but subsequent practice established that the status of a victim of a crime against humanity was not restricted to “civilians”. This practice includes the High Command Case before the United States Military Tribunal, cases of the Supreme Court in the British Occupied zone, and the French cases of Barbie and Touvier.
310. Further, the Appeals Chamber notes that while post-World War II case-law generally considered war crimes and crimes against humanity together, when military tribunals did distinguish between them, they did so not on the basis of the status of their victims, but on the element of scale or organisation involved in crimes against humanity:
It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words “against any civilian population” instead of “against any civilian individual.” The provision is directed against offenses and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and conducted by or with the approval of government.
311. In light of the above, the Appeals Chamber finds that the interpretation of the Statute according to which persons hors de combat fall within the purview of Article 5 of the Statute as victims is consistent with the status of applicable customary international law.
313. Under Article 5 of the Statute, a person hors de combat may thus be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population. Further, the Appeals Chamber is satisfied that the commission of crimes under Article 5 of the Statute against persons hors de combat attracted individual criminal responsibility under customary international law at the time of the commission of the offences. Therefore, the principle of nullum crimen sine lege is not violated. 
ICTY, Martić case, Judgment on Appeal, 8 October 2008, §§ 304–311 and 313.
[footnotes in original omitted]
International Criminal Tribunal for the former Yugoslavia
In the Milutinović case, the accused were charged with violations of the laws or customs of war and crimes against humanity as members of a joint criminal enterprise to, amongst other things, modify the ethnic balance in Kosovo to ensure Serbian control of the province through a campaign of terror and violence directed at the Kosovo Albanian population. In its judgment in 2009, the Trial Chamber considered the civilian character of a population in the context of the chapeau requirement for the prosecution of crimes against humanity that an attack must be directed against a civilian population. The Trial Chamber stated:
Although there is no numerical rule clearly denoting the point at which a population loses its civilian character, the Chamber considers that the requirement that the population under attack be “predominantly civilian” provides a standard against which the facts of a particular case may be judged. 
ICTY, Milutinović case, Judgment, 26 February 2009, § 148.
International Criminal Tribunal for the former Yugoslavia
In the Mrkšić case, two of the three accused, officers in the Yugoslav People’s Army (JNA), were convicted of, inter alia, torture as a violation of the laws or customs of war. In its judgment in the case in 2009, the ICTY Appeals Chamber considered the chapeau requirements for crimes against humanity, specifically whether persons hors de combat could be individual victims of crimes against humanity. It stated:
31. … [T]he fact that a population under the chapeau of Article 5 of the [1993 ICTY] Statute must be “civilian” does not imply that such population shall only be comprised of civilians. The status of the victims will thus also be relevant to determining whether the population against which the attack is directed is civilian. In Kordić and Čerkez, the Appeals Chamber stated:
The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. [Kordić and Čerkez case, Judgement on Appeal, § 50]
In Blaškić, the Appeals Chamber, relying on the ICRC Commentary to Article 50 of [the 1977] Additional Protocol I, held that “in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined”. [Blaškić case, Judgement on Appeal, § 115]
32. Accordingly, whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a “civilian population” is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be “civilians”. 
ICTY, Mrkšić case, Judgment on Appeal, 5 May 2009, §§ 31–32.
[footnotes in original omitted]
Special Court for Sierra Leone
In its judgment in the Fofana and Kondewa case in 2007, the SCSL Trial Chamber stated:
In order for a population to be considered “civilian”, it must be predominately civilian in nature; the presence of certain non-civilians in their midst does not change the character of the population. In determining whether the presence of soldiers within a civilian population deprives it of its civilian character, the Chamber must examine, among other factors, the number of soldiers as well as their status. The presence of members of resistance armed groups or former combatants who have laid down their arms, within a civilian population, does not alter its civilian nature. 
SCSL, Fofana and Kondewa case, Judgment, 2 August 2007, § 117.
In its judgment in 2008, the Appeals Chamber considered the definition of the civilian population in relation to the chapeau requirements of crimes against humanity, stating:
258. The Trial Chamber stated that “civilian population” must be interpreted broadly. It includes “all those persons who are not members of the armed forces or otherwise recognised as combatants.” [Fofana and Kondewa case, Judgement, § 116] It also stated that the population must be predominantly civilian in nature and that the presence of certain non-civilians in their midst does not change the character of the population. It further stated that the use of the word “population” does not mean that the entire population of the geographical entity in which the attack is taking place must have been the subject of that attack. The Trial Chamber finally stated that:
the targeting of a select group of civilians – for example, the targeted killing of a number of political opponents – cannot satisfy the requirements of Article 2. It would therefore be sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian ‘population’, rather than against a limited and randomly selected number of individuals. [Fofana and Kondewa case, Judgement, § 119]
259. Article 50 of [the 1977] Additional Protocol I provides:
… The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.
The Appeals Chamber considers that Article 50(1) of the Additional Protocol I is a useful tool in determining a “civilian population.” The Appeals Chamber agrees with the view expressed in several judgments of international tribunals that “the presence within a population of members of resistance groups, or former combatants, who have laid down their arms, does not alter its civilian characteristic” and “[t]he civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” [ICTY, Galić case, Judgement on Appeal, § 144] In line with this principle, the Appeals Chamber takes the view that the presence of rebels or juntas within the victims does not deprive the population of its civilian character.
264. The Appeals Chamber holds that as a matter of law perceived or suspected collaborators with the rebels or juntas, as in the present case, are likewise part of a “civilian population”. 
SCSL, Fofana and Kondewa case, Judgment on Appeal, 28 May 2008, §§ 258–259 and 264.
[footnotes in original omitted]
Special Court for Sierra Leone
In the Sesay case before the SCSL, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, and the accused Gbao, senior commander in the RUF and AFRC/RUF forces, were each charged with eight counts of crimes against humanity, eight counts of war crimes, and two counts of other serious violations of international humanitarian law. In its judgment in the case in 2009, the Trial Chamber, in considering whether a civilian population could include persons hors de combat for the purposes of the chapeau requirement for crimes against humanity, stated:
82. The Chamber is satisfied that customary international law, determined by reference to the laws of armed conflict, has established that the civilian population includes all of those persons who are not members of the armed forces or otherwise recognised as combatants. A person who is hors de combat does not prima facie fall within this definition. However, the Chamber concurs with the ICTY Appeals Chamber in the Martic case that where a person hors de combat is the victim of an act which objectively forms part of a broader attack directed against a civilian population, this act may amount to a crime against humanity. Thus, persons hors de combat may form part of the civilian population for the purpose of crimes against humanity, provided that the remaining general requirements of Article 2 [of the 2002 Statute of the Special Court for Sierra Leone] are satisfied in respect of the particular incident.
83. In order for a population to be considered “civilian”, it must be predominantly civilian in nature; the presence of certain non-civilians in their midst does not change the character of the population. In determining whether the presence of soldiers within a civilian population deprives it of its civilian character, the Chamber must examine, among other factors, the number of soldiers as well as their status. The presence of members of resistance armed groups or former combatants who have laid down their arms, within a civilian population, does not alter its civilian nature. 
SCSL, Sesay case, Judgment, 2 March 2009, §§ 82–83.
[footnotes in original omitted]
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “The presence within the civilian population of individuals other than civilian persons does not deprive the population of its civilian character.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 53.
ICRC
In a press release issued in 1983 concerning the conflict in Lebanon, the ICRC stated: “The presence of armed elements among the civilian population does not justify the indiscriminate shelling of women, children and old people.” 
ICRC, Press Release No. 1474, Fighting in Tripoli: Appeal from the ICRC, Geneva, 4 November 1983.
No data.
Additional Protocol I
Article 50(1) of the 1977 Additional Protocol I provides: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 50(1). Article 50 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 161.
Additional Protocol II (draft)
Article 25(4) of the draft Additional Protocol II, adopted by Committee III of the CDDH, provided: “In case of doubt as to whether a person is a civilian, he or she shall be considered to be a civilian”. 
CDDH, Official Records, Vol. XV, CDDH/215/Rev.1, 3 February–18 April 1975, p. 320.
This draft provision was adopted by consensus by Committee III. 
CDDH, Official Records, Vol. XV, CDDH/215/Rev.1, 3 February–18 April 1975, p. 290, § 121.
Eventually, however, it was deleted in the plenary by consensus. 
CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 135.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 50(1) of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 50(1) of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.
Argentina
Argentina’s Law of War Manual (1989) states: “In case of doubt about the qualification of a person, that person must be considered to be civilian.” 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.02(1).
Australia
Australia’s Defence Force Manual (1994) states: “In cases of doubt about civilian status, the benefit of the doubt is given to the person concerned.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 914.
Australia
Australia’s LOAC Manual (2006) states: “In cases of doubt about civilian status, the benefit of the doubt must be given to the person concerned.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.33.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “In case of doubt about the status of a person, that person must be considered to be a civilian.” 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 82.
Cameroon
Cameroon’s Instructor’s Manual (1992) states: “The benefit of the doubt confers upon a person the status of civilian.” 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 17.
Cameroon
Cameroon’s Instructor’s Manual (2006) states: “Persons who do not belong to the Armed Forces and do not participate in a ‘levée en masse’ are considered civilians. In situations of doubt, civilian status should be accorded to the person in question.” 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 92, § 352.11; see also p. 134, § 412.11.
Canada
Canada’s LOAC Manual (1999) states: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4–5, § 38.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 429.
Canada
Canada’s Use of Force Manual (2008), in a section entitled “Principles and rules governing the use of force that directly relates to the conduct of armed conflict”, states: “Doubt rule. A person or object must not be attacked unless there is a reasonable belief that the person or object to be attacked is a military objective. In cases of doubt, a person is presumed to be a civilian …”. 
Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, § 112.3.
Colombia
Colombia’s Instructors’ Manual (1999) states: “In case of doubt whether a person is civilian or not, that person must be considered to be civilian.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 16.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers): “Civilians must not be attacked. A civilian is a person who is not a member of the armed forces. In case of doubt, a person must be treated as a civilian.” 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 31; see also Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 21.
Croatia
Croatia’s LOAC Compendium (1991) states that, in case of doubt, persons have to be considered as civilians. 
Croatia, Compendium Law of Armed Conflicts, Republic of Croatia, Ministry of Defence, 1991, p. 6.
Dominican Republic
The Dominican Republic’s Military Manual (1980) states:
All persons participating in military operations or activities are considered combatants [and proper targets for attack]. Those who do not participate in such actions are non-combatants. This distinction is not always easy to make. Uniformed, armed soldiers are easily recognizable. However, guerrillas often mix with the civilians, perform undercover operations, and dress in civilian clothes. Alertness and caution must guide you in deciding who is a combatant.  
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 3.
Hungary
Hungary’s Military Manual (1992) states that, in case of doubt, persons have to be considered as civilians. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 17.
Ireland
Ireland’s Basic LOAC Guide (2005) states: “In case of doubt as to the status of [a] person … [they] shall be assumed to be civilian.” 
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 10.
(emphasis in original)
Kenya
Kenya’s LOAC Manual (1997) states: “In case of doubt whether a person is a civilian or not, that person shall be considered a civilian.” 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 10.
Madagascar
Madagascar’s Military Manual (1994) states: “In case of doubt about the status of a person, that person shall be considered to be civilian.” 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 2-SO, § B.
Netherlands
The Military Manual (1993) of the Netherlands states: “In case of doubt whether a person is civilian, that person is considered to be a civilian.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-2.
Netherlands
The Military Manual (2005) of the Netherlands states: “If there is any doubt whether someone is a civilian, he or she is treated as a civilian.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0505.
In its chapter on the protection of the civilian population, the manual states: “If there is any uncertainty whether someone is a genuine civilian, this person is given the benefit of the doubt pending proof to the contrary, and must be treated as a civilian.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0805.
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) notes in its glossary: “Civilian person – means any person who does not belong to the armed forces and does not take part in a ‘levee en masse.’ In case of doubt whether a person is a civilian or not, that person shall be considered as a civilian.” 
Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 67, Glossary.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states: “In case of doubt whether a person is a civilian, that person shall be considered a civilian.” 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 1.
South Africa
South Africa’s LOAC Manual (1996) contains a rule identical to that in Article 50(1) of the 1977 Additional Protocol I. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 24(c). This manual is also included in Chapter 4 of the Draft Civic Education Manual of 1997.
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “In cases of doubt as to whether a person is a civilian or not, that person shall be considered to be a civilian.” 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 47(c).
Spain
Spain’s LOAC Manual (1996) contains a rule identical to that in Article 50(1) of the 1977 Additional Protocol I. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 4.5.b.(1).
Spain
Spain’s LOAC Manual (2007) states: “If there is any doubt about whether a person is a civilian or not, that person must be presumed to be a civilian.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 4.5.b.(1).(b).
Sweden
Sweden’s IHL Manual (1991) states: “Where there is doubt whether a person is to be considered as a combatant or as a civilian, the person shall be considered as a civilian.” 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, p. 42.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “Civilians are persons who are not members of the armed forces. In cases of doubt, persons are considered to be civilians.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.3.1.
The manual specifies:
In the practical application of the principle of civilian immunity and the rule of doubt, (a) commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time, (b) it is only in cases of substantial doubt after this assessment about the status of the individual in question, that the latter should be given the benefit of the doubt and treated as a civilian, and (c) the rule of doubt does not override the commander’s duty to protect the safety of troops under his command or to preserve the military situation. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.3.4.
United States of America
According to the Report on US Practice, the US military manuals do not adopt the position that in case of doubt a person shall be considered as civilian. 
Report on US Practice, 1997, Chapter 1.1, referring to: Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 60; Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-3; and The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11.3.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “In case of doubt a person shall be considered as a civilian until proven otherwise.” 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 67(3).
Croatia
On the basis of Croatia’s Constitution (1990) and Defence Law (1993), the Report on the Practice of Croatia states that Article 50 of the 1977 Additional Protocol I is directly applicable in Croatia’s internal legal order. 
Report on the Practice of Croatia, 1998, Answers to additional questions on Chapter 1, referring to Constitution, 1990, Article 134 and Defence Law, 1993, Article 39.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 50(1), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Germany
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, p. 1.
The Federal Prosecutor General also stated:
Criminal responsibility under § 211 StGB [i.e. for murder under Germany’s Penal Code]
b)
Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law …
cc)
Even considering the fact that the bombing killed civilians to be protected under the international law of armed conflict, the order to attack was lawful under international law.
(1)
… International humanitarian law … prohibits … attacks … against a military objective if at the time of the order to attack the anticipated civilian damage is out of proportion (“excessive” see Art. 51 para. 5 sub-para. b AP [1977 Additional Protocol] I to the anticipated concrete and direct military advantage (see ICRC Customary International Humanitarian Law, 2005 – hereafter ICRC Customary IHL [Study] – p. 46ff). …
(3)
The anticipated civilian collateral damages are also to be assessed from the perspective of the attacker at the time of the attack, rather than with hindsight according to the actual unfolding of events (see also the wording of Art. 51 para. 5 sub-para. b AP I … “may be expected”; ICRC Customary IHL [Study] p. 50 …). … The international law of armed conflict requires that in case of doubt a person is to be considered a civilian (see Art. 50 para. 1 sentence 2 AP I). However, there is no such case of doubt if – as is the case here – there are sufficient indications, considering the concrete circumstances, that the persons concerned are a legitimate objective of a military attack; absolute certainty is not necessary. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, pp. 63–66.
Djibouti
In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, in an exercise asking students to identify IHL violations, provided the following example:
[A soldier reports:] “Quite often, soldiers exchange their uniforms for civilian clothes. How can we then know who is really a civilian? In such cases, if you attack a village, you must kill everything that moves.” 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 201.
The ministry also stated: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” 
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 201; see also p. 203.
Djibouti
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry of National Education and Vocational Training stated: “In case of doubt about the status of a person, that person shall be considered to be a civilian.” 
Djibouti, Ministry of National Education and Vocational Training, History and Geography Textbook for 9th Grade, 2011, p. 211.
Egypt
On the basis of a proposal submitted by Egypt during the CDDH, the Report on the Practice of Egypt states: “To ensure more protection for civilians, Egypt is of the opinion that in case of doubt as to whether a person is a civilian, he or she shall be deemed to be so.” 
Report on the Practice of Egypt, 1997, Chapter 1.1, referring to Statement by Egypt at the CDDH, Official Records, Vol. IV, CDDH/III/33, 15 March 1974, p. 73.
France
Upon ratification of the 1977 Additional Protocol I, France stated:
The rule set out in the second sentence of the first paragraph of Article 50 [of the 1977 Additional Protocol I] cannot be interpreted as requiring a commander to take a decision which, according to the circumstances and information available to him, might not be compatible with his duty to ensure the safety of the troops under his command or to preserve his military situation, in conformity with other provisions of [the 1977 Additional Protocol I]. 
France, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 11 April 2001, § 9.
Malaysia
The Report on the Practice of Malaysia refers to the presumption of civilian character, adding that it governed the behaviour of the armed forces during the campaign against the communist insurgency. 
Report on the Practice of Malaysia, 1997, Answers to additional questions on Chapter 1.1.
Nigeria
The Report on the Practice of Nigeria states that a presumption of civilian character is held in case of doubt. It adds that during the Nigerian civil war, “the Federal Forces in situations of such doubt did not off-handedly indict or take away individuals of such doubtful civilian character”. They subjected such individuals to a test, in order to determine
the degree of hardness of … their fingers used in handling the trigger. Those found with hardened fingers were presumed to be soldiers (combatants). Although this is an unscientific method of identification, it nonetheless shows that Nigerian practice does not prima facie attribute the status of combatant to individuals of doubtful civilian character. 
Report on the Practice of Nigeria, 1997, Answers to additional questions on Chapter 1.1.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1977 Additional Protocol I, the United Kingdom expressed its understanding of the presumption of civilian character as only applicable
in cases of substantial doubt still remaining after the assessment [of the information from all sources which is reasonably available to military commanders at the relevant time] has been made, and not as overriding a commander’s duty to protect the safety of troops under his command or to preserve his military situation, in conformity with other provisions of [the 1977 Additional Protocol I].  
United Kingdom, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § h.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Commons, the UK Secretary of State for Defence, Mr Hoon, stated in reply to a question by a Member:
Alan Simpson (Nottingham, South): There have been some civilian casualties for which I am sure that even the Secretary of State would accept that there is a clear line of responsibility. They would include the seven women and children who were killed at a checkpoint and the 15 members of a single family who were killed when their lorry was attacked by an Apache helicopter. Will the Secretary of State tell the House whether current UK rules of engagement allow for such attacks on civilians; whether the rules of engagement for UK troops differ from those of US troops; whether he will place in the House of Commons Library the details of the two sets of rules of engagement; and whether he will confirm that, as has happened previously, any UK troops who were involved in instances of unjustified killings of civilians would be likely to face criminal charges?
Mr. Hoon: We do not comment in detail on rules of engagement, and certainly not on those of the United States. I would be a lot more persuaded by my hon. friend’s observations if, at the same time as mentioning the tragic deaths of seven women and children, he had also mentioned the deaths of the four US marines who were killed in a deliberate car bomb attack, perpetrated by a fanatic. In such circumstances, it is perhaps perfectly understandable – although I am not excusing it in any sense at all – that soldiers who are having to deal with a difficult situation at a checkpoint and who know that four of their comrades have been killed in that way are perhaps reacting in a way that we might not want them to. That is not to say that the accounts that have been given, again, by particular journalists are necessarily the only version of events that we should all accept. An investigation is going on into what went on at the checkpoints, and it is important that we await the outcome of that before judging the facts quite so prejudicially. 
United Kingdom, House of Commons, Statement by the Secretary of State for Defence, Hansard, 3 April 2003, Vol. 402, Debates, col. 1085.
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International Criminal Court
In its decision on the confirmation of charges in the Mbarushimana case in 2011, the ICC Pre-Trial Chamber I stated: “The term ‘civilian’[,] in accordance with article 50(1) of the AP I [1977 Additional Protocol I], applies to anyone who is not a combatant, and in case of doubt, the person shall be considered to be a civilian.” 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 148
The charges against Mr Mbarushimana related to alleged war crimes and crimes against humanity. The Pre-Trial Chamber did not confirm the charges. 
ICC, Mbarushimana case, Decision on the Confirmation of Charges, 16 December 2011, § 340.
In its judgment of 30 May 2012, the ICC Appeals Chamber confirmed that decision and dismissed the appeal. 
ICC, Mbarushimana case, Judgment on Appeal, 30 May 2012.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated, inter alia:
The presence of individual combatants within the population does not change its civilian character. In order to promote the protection of civilians, combatants are under the obligation to distinguish themselves at all times from the civilian population; the generally accepted practice is that they do so by wearing uniforms, or at least a distinctive sign, and by carrying their weapons openly. In certain situations it may be difficult to ascertain the status of particular persons in the population. The clothing, activity, age, or sex of a person are among the factors which may be considered in deciding whether he or she is a civilian. A person shall be considered to be a civilian for as long as there is a doubt as to his or her real status. The Commentary to Additional Protocol I explains that the presumption of civilian status concerns “persons who have not committed hostile acts, but whose status seems doubtful because of the circumstances. They should be considered to be civilians until further information is available, and should therefore not be attacked”. The Trial Chamber understands that a person shall not be made the object of attack when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the potential target is a combatant. 
ICTY, Galić case, Judgment, 5 December 2003, § 50.
International Criminal Tribunal for the former Yugoslavia
In the Strugar case before the ICTY in 2003, the accused, a Commander in the Yugoslav People’s Army (JNA), was charged, inter alia, with attacks on civilians as a violation of the laws or customs of war (Article 3 of the 1993 ICTY Statute), for his role in conducting a military campaign against the Dubrovnik region of Croatia. 
ICTY, Strugar case, Third Amended Indictment, 10 December 2003, §§ 14–18, Count 3.
In its judgment in 2008, the Appeals Chamber considered the mens rea requirement for the crime of attacks on civilians as a violation of the laws or customs of war (Article 3 of the 1993 ICTY Statute), stating:
As specified by the Trial Chamber in the Galić case,
For the mens rea recognized by [1977] Additional Protocol I to be proven, the Prosecution must show that the perpetrator was aware or should have been aware of the civilian status of the persons attacked. In case of doubt as to the status of a person, that person shall be considered to be a civilian. However, in such cases, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant. [Galić case, Judgement, § 55]. 
ICTY, Strugar case, Judgment on Appeal, 17 July 2008, § 271.
[footnotes in original omitted]
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Dragomir Milošević case in 2007, the ICTY Trial Chamber stated:
The generally accepted practice is that combatants distinguish themselves by wearing uniforms, or, at the least, a distinctive sign, and by carrying their weapons openly. Other factors that may help determine whether a person is a civilian include his or her clothing, activity, age or sex. In cases of doubt whether a person is a civilian, that person shall be considered to be a civilian. As stated in the Commentary on Additional Protocol I, the presumption of civilian status applies to:
“[p]ersons who have not committed hostile acts, but whose status seems doubtful because of the circumstances. They should be considered to be civilians until further information is available, and should therefore not be attacked.” 
ICTY, Dragomir Milošević case, Judgment, 12 December 2007, § 946.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “In case of doubt whether a person is a civilian or not, that person shall be considered as a civilian.” 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 52.
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