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New Issue: Forum on Direct Participation in Hostilities

We are pleased to announce that the Spring 2010 issue of the Jour­nal of Inter­na­tion­al Pol­i­tics is now avail­able online.  The bulk of Issue 42:3 is ded­i­cat­ed to dis­cus­sion of the ICRC Inter­pre­tive Guid­ance on the Notion of Direct Par­tic­i­pa­tion in Hos­til­i­ties, which was released last year.  The Forum fea­tures four respons­es to the work Inter­na­tion­al Com­mit­tee of the Red Cross:

  • Brig. Gen. (Ret.) Ken­neth Watkin, of the Cana­di­an Forces, dis­cuss­es the con­cept of “orga­nized armed groups” in the ICRC doc­u­ment.
  • Prof. Michael N. Schmitt, of Durham Uni­ver­si­ty Law School, ana­lyzes the ICRC’s fram­ing of the con­sti­tu­tive ele­ments of “direct par­tic­i­pa­tion.”
  • Air Cdre. Bill Booth­by of the RAF focus­es on the tem­po­ral dimen­sion of direct par­tic­i­pa­tion.
  • Col. (Ret.) W. Hays Parks, of the U.S. Depart­ment of Defense Office of Gen­er­al Coun­sel, crit­i­cizes the document’s restraints on the use of force in direct attack.

The Forum also con­tains a detailed response from Nils Melz­er, legal advis­er to the ICRC and author of the Inter­pre­tive Guid­ance doc­u­ment.  Pro­fes­sors Ryan Good­man (NYU School of Law) and Derek Jinks (Uni­ver­si­ty of Texas at Austin; U.S. Naval War Col­lege, 2009-10) present a brief intro­duc­tion.

In addi­tion, Issue 42:3 con­tains two illu­mi­nat­ing dis­cus­sions of the TRIPS regime, the World Trade Organization’s agree­ment on intel­lec­tu­al prop­er­ty rights.  Both exam­ine the bilat­er­al IP treaties fre­quent­ly known as TRIPS-Plus, which gen­er­al­ly pro­vide IP pro­tec­tion above and beyond that guar­an­teed by the orig­i­nal muli­ti­lat­er­al TRIPS agree­ment.  Beat­rice Lind­strom focus­es on TRIPS-Plus agree­ments in Asia and the Pacif­ic, and aruges that they have neg­a­tive exter­nal effects on stake­hold­ers who are not rep­re­sent­ed in nego­ti­a­tions.  Matthew Turk presents a much more san­guine view of TRIPS-Plus.  He argues that, while defects in the bar­gain­ing process argue for a “pro-devel­op­ment” inter­pre­ta­tion of the orig­i­nal TRIPS agree­ment, no such defects exist­ed in TRIPS-Plus nego­ti­a­tions.  There­fore, he con­cludes that the terms of TRIPS-Plus treaties should be inter­pret­ed lit­er­al­ly, to best effec­tu­ate the intent of the par­ties.

The issue also con­tains our usu­al roundup of book anno­ta­tions, many of which will be post­ed on this blog in the com­ing weeks.  Click the jump for more on Direct Par­tic­i­pa­tion in Hos­til­i­ties.

For those not famil­iar with the laws of war, the notion of Direct Par­tic­i­pa­tion in Hos­til­i­ties derives from Arti­cle 51(3) of Addi­tion­al Pro­to­col I to the Gene­va Con­ven­tions,  and from Arti­cle 13(3) of Addi­tion­al Pro­to­col II.  This pro­vi­sion holds, “Civil­ians shall enjoy the pro­tec­tion afford­ed by this Sec­tion, unless and for such time as they take a direct part in hos­til­i­ties.”  Under­stand­ing this rule is cen­tral to apply­ing the laws of armed con­flict to mod­ern asym­met­ric war­fare.

The rule obvi­ous­ly rais­es a host of ques­tions: Who is a civil­ian?  What is direct par­tic­i­pa­tion?  When does a civil­ian begin par­tic­i­pat­ing, and when can she be said to have stopped?   The Intepre­tive Guid­ance doc­u­ment address­es these ques­tions, and also asks whether inter­na­tion­al human­i­tar­i­an law places any lim­its on the use of force in attack­ing mil­i­tary tar­gets.

Good­man and Jinks point out that this Forum pro­vides an invalu­able com­pendi­um of crit­i­cism from the per­spec­tive of mil­i­tary neces­si­ty.  The response by Nils Melz­er ably attempts to bal­ance these crit­i­cisms with the human­i­tar­i­an imper­a­tives that stand at the cen­ter of the ICRC’s mis­sion.  It is our hope that this Fourm will pro­vide a spring­board for fur­ther debate on this top­ic.

Also, as not­ed by Good­man and Jinks, the per­spec­tives rep­re­sent­ed here are not exhaus­tive.  The Inter­pre­tive Guid­ance doc­u­ment could also be eval­u­at­ed from the more detatched view of treaty inter­pre­ta­tion in pub­lic inter­na­tion­al law, from a human rights per­spec­tive, and from the per­spec­tive of the “human­iza­tion” of war­fare .  This lat­ter con­cept has been explored by Judge Theodor Meron, an NYU Law pro­fes­sor, in his work on the human­iza­tion of inter­na­tion­al law.

Final­ly, it was a for­tu­itous acci­dent that this Forum is being pub­lished con­cur­rent­ly with the Study on Tar­get­ed Killings by NYU Pro­fes­sor Philip Alston, the UN Spe­cial Rap­por­teur on extra­ju­di­cial exe­cu­tions.  The Inter­pre­tive Guid­ance is direct­ly rel­e­vant to the rather large frac­tion of tar­get­ed killings that occur in the con­text of armed con­flicts, and Pro­fes­sor Alston dis­cuss­es the ICRC doc­u­ment exten­sive­ly (see paras. 62–69).  Not­ing “the hes­is­tant or uncer­tain response of some States” to the Guid­ance, the study calls for a con­fer­ence of states and humanitarian/human rights experts to dis­cuss and pos­si­bly revise the ICRC’s work.

The argu­ments pre­sent­ed in this issue of JILP would cer­tain­ly play a cen­tral role in any future revi­sion of the Inter­pre­tive Guid­ance.  Indi­vid­ual authors may give their own thoughts on Pro­fes­sor Alston’s fas­ci­nat­ing study, which came as an adden­dum to his annu­al report to the Human Rights Coun­cil.

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