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New Battlefields/Old LawsCritical Debates on Asymmetric Warfare$
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William Banks

Print publication date: 2011

Print ISBN-13: 9780231152358

Published to Columbia Scholarship Online: November 2015

DOI: 10.7312/columbia/9780231152358.001.0001

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Direct Participation in Hostilities

Direct Participation in Hostilities

A Concept Broad Enough for Today’s Targeting Decisions

(p.85) Four Direct Participation in Hostilities
New Battlefields/Old Laws

Eric Talbot Jensen

Columbia University Press

This chapter examines the assertion that the traditional law of armed conflict should be amended to allow fighters from nonstate entities who would not otherwise meet the requirements for combatant status to gain that status if they comply with the law-of-war requirements for combatants. It argues that no new status designation category is required, and instead calls for a broader interpretation of existing language in the 1977 Protocol Additional I to the Geneva Conventions to account for fighters who purposely attack from within civilian populations or use civilian status to frustrate targeting efforts. It further contends that on the contemporary battlefield “actual harm” is too narrow when defining “direct participation in hostilities,” and that criteria are necessary to address actions that may not cause “actual harm” but still make a person targetable. In this modernized view of “unlawful combatants” and “direct participation in hostilities,” the fighters are members of armed groups analogous to modern state militaries and civilians purposely attack from within civilian populations and hide behind their protected status to frustrate legitimate targeting efforts.

Keywords:   law of armed conflict, nonstate entities, combatants, Geneva Conventions, targeting, actual harm, hostilities, civilians

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