Functional Distinction Criteria of Direct Participants in Hostilities in the Context of International Humanitarian Law and its Jurisprudential Challenges
Under the established framework of International Humanitarian Law,the principle of distinction mandates all warring to distinguish between civilians and combatants,and between civilian objects and military objectives.For the paradigm of mentality,the temporal and spatial context,and the technological advancement,modern warfare has brought human societies with a series of new challenges in almost every aspects.The phenomenon of"direct participants in hostilities"constitute one of the most widespread and striking features in all types of armed conflicts,including both IAC and NIAC,and this present modern International Humanitarian Law with unprecedented jurisprudential challenges.Almost all traditional doctrines regarding the principle of distinction are mainly built upon the criteria of personnel status,a set of criteria that distinguishes civilian and combatants via correct identification of their societal positions.However,such criteria cannot explain many cases in a thorough and convincing manner,especially when civilians taking a part directly in hostilities.Moreover,those doctrines are relentlessly embarrassed with the advent of modern warfare such as AI wars,Autonomous Weapon Systems,Cyberwarfare and Space wars.Thus,traditional theories based on static criteria of personnel status have fallen short of their initial promises.Meanwhile,it is necessary to develop new theories that can transcend the old traditions and feed the fresh needs.First,under a framework of"civilian-combatant-Levée en masse",it is critical for any lawyers to identify under which circumstances civilians have directly taken part in hostilities.When doing this,a holistic view is needed.Secondly,the question whether certain civilians are to be deemed as DPH should be answered twofold:the realized behaviors and the aimed objectives supported by such behaviors.Generally speaking,Functional Distinction Criteria tend to emphasize on the aspects of the realized behaviors and the connection between behaviors and objectives.Thirdly,when applying Functional Distinction Criteria,Continuous Combat Function is key.This is to say that lawyers need to investigate the overall and specific functions of every hostile behaviors conducted by a civilian,and at the same time,the temporality of such functions should be taken into serious consideration.Besides,the three elements of direct participation in hostilities(threshold of harm,direct causation,belligerent nexus)recommended by the 2009 ICRC Interpretive Guidance should be also applied.By analyzing the problems of DPH in AI wars,Autonomous Weapon Systems,Cyberwarfare and Space wars,this article has shown many merits of Functional Distinction Criteria in interpreting and applying the principle of distinction in modern warfare.It is thus suggested that the introduction of Functional Distinction Criteria will not only plug interpretative loopholes of DPH in the existing International Humanitarian Law system which is based on the four Geneva Conventions and and their Additional Protocols,but also provide guiding framework for States to confront complex armed conflicts.In order to strengthen the principle of distinction in the context of DPH,based on ICRC's 2009 Interpretive Guidance,modern International Humanitarian Law still need to emphasize the jurisprudential values of Functional Distinction Criteria,clarifying the legal elements of continuous combat function,demarcating the boundaries of direct and indirect participants in hostilities.Only by this,can the entire interpretative system of International Humanitarian Law strike a delicate balance between humanity and military necessity.
civiliancombatant"direct participants in hostilities"criteria of personnel statusfunctional distinction criteriacontinuous combat function
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