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.