Practice Relating to Rule 6. Civilians’ Loss of Protection from Attack
Section A. Direct participation in hostilities
Colombia’s Instructors’ Manual (1999) states that civilians lose their protection against attack “when they participate directly in the hostilities”.
The manual adds: “Civilians must be understood as those who do not participate directly in military hostilities (internal conflict, international conflict).”
Colombia’s Operational Law Manual (2009) states:
v. Persons who take [a] direct part in hostilities
In situations of non-international armed conflict, it is necessary to differentiate between those who take a direct part in hostilities and those who do not and between military objectives and civilian objects. To do so, it is important to carry out an analysis to determine if a person can be considered a civilian, what conduct amounts to direct participation in hostilities and what means of direct participation exist.
IHL protects the civilian population and civilians. This is provided for in Article 13 of the  Additional Protocol II to the  Geneva Conventions, according to which: “[1.] The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. [2.] The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. [3.] Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.”
First, it is important to recall that a person is a civilian if “the conditions are met: (i) not being a member of the armed forces or of the irregular armed organizations engaged in the fighting and (ii) not taking part in the hostilities”. This definition of the Constitutional Court corresponds to the doctrine of the ICRC:
“For the purposes of the principle of distinction in a non-international armed conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians … . In non-international armed conflicts, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of those individuals whose continuous function it is to take a direct part in hostilities (“continuous combat function”).
vi. Loss of protection for direct participation in hostilities
Until now, international jurisprudence and doctrine on the subject have advanced in pointing out that the notion of direct participation in hostilities refers to specific hostile acts carried out by individuals as part of the conduct of hostilities between the parties to an armed conflict. This notion applies both to international and non-international armed conflicts.
When civilians carry out an act that amounts to direct participation in hostilities, they lose their protected person status, even if they do not have a continuous combat function like members of the armed forces. When the participation is temporary, protection is lost only for the duration of the participation. This is regardless of the existence of a punishable conduct that can be investigated by the competent authorities.
For a specific act to be considered as direct participation is hostilities, the following (cumulative) criteria must be met:
1. Threshold of harm: There must be a specific act that adversely affects the military operations or military capacity of one of the parties to an armed conflict or, alternatively, that causes death, injury or destruction to persons or objects protected against direct attack.
2. Direct causation: There must be a direct causal link between the act and the harm that is likely to result either directly from that act or from a coordinated military operation of which the act constitutes an integral part.
3. Belligerent nexus: The act must be specifically designed to cause the required threshold of harm in support of one of the parties and to the detriment of the other.
In addition to the above, the notion of direct participation in hostilities includes, other than the execution of a specific act, both the measures preparatory to the execution of the act and the deployment to and the return from the place of execution.
In its 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, the ICRC established some concrete examples of direct participation in hostilities:
- The use of vehicles with ammunition in the context of an operation and towards a specific line of defence;
- The identification and marking of targets, the analysis and transmission of tactical intelligence to attack [enemy] forces;
- The instruction and assistance given to troops, as long as they are an integral component of a concrete and coordinated operation to cause a specific harm; and
- The recruitment and training of a person to execute a specific hostile act.
In contrast, the peaceful involvement of the population, even if it contributes to the war effort, cannot be considered as direct participation in hostilities. In these cases, indirect participation is considered to take place when there is an individual act that does not increase the harm caused to the enemy or when the contribution does not imply a direct causal link with the harm inflicted. In these situations, the status of protected person is maintained.
There are some acts that can be considered as indirect participation. Such acts are (i) providing food, electricity, fuel, construction material, financial services or information to the adversary and (ii) the production and transport of arms and ammunition generally and outside the context of a concrete operation aimed at causing a specific harm.
Finally, it is important to take into account the Inter-American Commission of Human Rights’s 1999 Third Report on the Situation of Human Rights in Colombia of the , which established some conduct that cannot be considered as direct participation in hostilities. The report states that “civilians who merely support the adverse party’s war or military effort or that 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 parties to the conflict, 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 parties, does not involve acts of violence that pose an immediate threat of harm to the adverse party”.
vii. Conclusion: Against whom can direct attacks be directed? What to do in case of doubt?
According to the ICRC Interpretive Guidance, direct attacks can only be directed against persons who: 1) are members of State armed forces or organized armed groups (“continuous combat function”); or 2) take a direct part in hostilities.
[footnotes in original omitted]
The manual also states:
4. Rules of engagement
(i) Definitions for rules of engagement for land combat …
- Lawful target: Members of organized armed groups and persons participating directly in hostilities.
- Targeted use of weapons …
: The use of force must be against the military objective or the lawful target.
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.
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”.
(footnote in original omitted)
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’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.
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.