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Direct Participation in Hostilities: A Proposition for U.S.Reaction to the ICRC's Interpretive Guidance and Formulation for a Practicable Definition Open Access

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In May 2009, the International Committee of the Red Cross published its Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law on the meaning of the term "direct participation in hostilities" (DPH) and the hotly-debated status of combatants and civilians in armed conflicts. Even though the recent conflicts in Iraq and Afghanistan have increased the concern over the DPH issues, a consensus on a definition and its application has evaded international legal and military experts. In reaction to the ICRC guidance and the international community's non-consensus, Jeremy Marsh and Scott L. Glabe recently opined that the United States must officially respond to the ICRC and provide a definition of DPH. However, as this paper argues, a premature U.S. stance on DPH may produce unintended consequences in future use-of-force scenarios. The current state of international indecision concerning what constitutes DPH in unconventional armed conflicts signals that today is not the day to establish a U.S. standard for the future battlefield. However, in the future, a DPH interpretation that guides strategic policymakers and operational commanders in conducting warfare is in the best interests of the United States. This paper concludes with a proposed conceptual framework from which the U.S. should structure a DPH definition that is both practical to the fluid environment in armed conflicts and not contradictory to the tenets of International Humanitarian Law.

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