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Applying the U.S. and ICRC Standards for Direct Participation in Hostilities to Civilian Support of U.S. Military Operations Open Access

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In an armed conflict, international law aims to limit the barbarity of war by protecting civilians from direct attack by the belligerents. However, this protection is not absolute; it exists unless and for such time as the otherwise-protected civilian takes a direct part in hostilities. Although there exists a general consensus that civilians must be protected during both international and non-international armed conflicts, considerable questions remain as to exactly what it means to “take a direct part in hostilities.” This paper applies two interpretations of direct participation in hostilities—that of the International Committee of the Red Cross (ICRC) and that of the U.S. Department of Defense—to various acts undertaken by civilians in support of U.S. military operations. The standards are applied to three general functions: operation of remotely-piloted aircraft, operations in cyberspace, and combat support services like finance, transportation, and public affairs. The paper concludes that the United States, by holding a broader view than the ICRC of when civilians may lose their protection from direct attack, may subject its own civilians to undesirable targeting. Finally, the paper makes four recommendations designed to clarify the rules of international humanitarian law for the individuals who must implement them, to limit the perfidious use of international humanitarian law as a sword rather than a shield, and to assist U.S. officials in avoiding unintended negative legal and policy considerations that may come from the employment of civilians in actions that constitute direct participation in hostilities.

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