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How to Bring Clarity to the Protection of Civilians in Non-International Armed Conflicts: A Critical Assessment of Continuous Combat Function and a Viable Alternative Open Access

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The proliferation of armed conflicts involving non-State armed groups that hide among the civilian population to protect against direct attack by States has made the task of distinguishing members of non-State armed groups from civilians exceptionally arduous. In response, critics of the International Committee of the Red Cross’s interpretation of direct participation in hostilities and continuous combat function have raised doubts as to the ability of these concepts to appropriately address such tactics, arguing that the current scope of these concepts is unnecessarily narrow. In that vein, this paper examines the concept of direct participation in hostilities and its relation to the concept of continuous combat function as established by the International Committee of the Red Cross. This paper also considers an alternative approach used by the U.S. that relies on a broader understanding of membership and the type of actions that make an individual targetable. In critiquing both approaches, this paper proposes a third option to replace the current concept of continuous combat function, which prevents the conflating of civilians and members of a non-State armed group. This third option, by developing a new assessment framework for identifying targetable members of non-State armed groups that is separate from the analysis to establish direct participation in hostilities for civilians, effectively balances the flexibility sought by States with the extensive protections for civilians provided by the Geneva Conventions and Additional Protocols.

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