Author: Colonel Dr. Eran Shamir-Borer
Armed confrontations between states and non-state actors have received greater profile in recent years, regenerating debates over who may be targeted during hostilities. Questions relating to membership in the armed forces of non-state actors and the participation of civilians in hostilities have been given new life as the interpretation and application of the law of armed conflict (LOAC) are reassessed in light of the realities of conflicts such as those in Syria, Iraq, Lebanon, Yemen, and Gaza.
The twenty-first century has already produced a significant volume of perspectives on these questions. National and international courts have considered them in several cases, with the 2006 Israeli Supreme Court case Public Committee Against Torture in Israel v. Government of Israel (Targeted Killings) capturing a particularly prominent place in this discussion. Academic publications have likewise dealt with this issue, many of them following the discussion encouraged by the International Committee of the Red Cross (ICRC) Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (ICRC Interpretive Guidance). Of most importance, however, are the views expressed by states in various publications, usually in their military manuals: Canada (2001), the United Kingdom (2004), Australia (2006), Mexico (2009), Colombia (2009), France (2012), Germany (2013), Norway (2013), Israel (2015), and the United States (2015).
In this brief Article, I shall focus on a few specific issues that, in my mind, have particular relevance for contemporary and future armed conflicts, and with respect to which the debate is still ongoing: (a) the notion of “functional membership” in the armed forces of a non- state actor; (b) whether civilians employed in research and development projects qualify as direct participants in hostilities; and (c) whether civilians engaged in certain financial activities qualify as direct participants in hostilities.