On the 23rd of January 2017, the Iraqi Security forces entered the last neighborhood in the eastern part of Mosul, approaching the end of the almost 3-month long battle against Daesh for clearing the eastern half of the city. At the moment, the Iraqi security forces are preparing to enter the denser and heavily populated western half of the city. Daesh has been engaged in an inconclusive conflict spreading throughout Syria, Iraq, and the whole Middle East. In areas in which a high number of civilians can be observed, the rules of engagement, even in a brutal war, should be strictly followed to minimize civilian deaths as much as possible. However, this has been infinitely difficult in fighting Daesh, whose actions are mainly directed against civilians.
The central battlefields in this conflict are the cities populated by civilians such as Mosul, Al-Raqquah, Aleppo, etc. With the ongoing operations in Mosul and Al-Raqqah, certain questions have emerged: since terrorists are non-state actors, how should they be treated according to international humanitarian law (IHL) and other treaties signed by the majority of the world’s states?
First of all, the conflicts in Syria and Iraq are non-international (NIACs) since there is protracted armed violence between the Syrian and the Iraqi authorities supported by other States on one side and Daesh and other terrorist groups such as Jabhat al-Nusra. Considering the fact that Daesh has conquered different cities such as Mosul and Al-Raqquah, then not only Common Article 3 to the Geneva Conventions which is typical for NIACs but also Additional Protocol II should be applied.
Further, the attacks in Paris, Brussels, Berlin, and Istanbul in which Daesh took full responsibility, fall short of the definition of armed conflict. They don’t meet the threshold of protracted violence. In these cases, terrorists should be held accountable according to the domestic criminal law and in compliance with the due process and human rights law.
Neither the combatant nor the civilian status is applicable in the Syrian and Iraqi conflicts. However, there are armed forces in the conflicts and civilians take part in these forces, thus committing hostilities. In the above-mentioned cases, the continuous combat function and the direct participation in hostilities are relevant and applicable.
The Syrian and Iraqi authorities are not the only parties to the conflict which possess armed forces. Indeed, Daesh has armed forces too. The function of the members of the group is important. If they have a continuous combat function – meaning that their role is to use violence, they lose their civilian protection and they can be targeted at any time regardless of circumstances.
Unlike continuous combat function, the direct participation in hostilities is not based on status, but on behavior. Additionally, Protocol II makes clear that ‘civilians shall enjoy the protection afforded […] unless and for such time as they take a direct part in hostilities’. It makes sense, but what does ‘taking direct part’ mean? The ICRC has formulated a widely-accepted definition based on three conditions, which must all be met to have direct participation – the act committed by the civilians must meet a certain threshold of harm, there must be a causal link between the committed act the expected harm and there must be also a nexus to the ongoing conflict (for example, a bank robbery ending in open fire between the criminals and the police is not taking direct part in hostilities, but a common criminal act).
The necessity of a causal link has important implications. For instance, it means that acts contributing to the general war effort between Daesh and the Syrian or Iraqi authorities cannot be considered direct participation in hostilities. Civilians designing, producing or shipping weapons to Daesh, as well as people financing them, cannot be targeted. Of course, domestic criminal law is applicable in these cases. Only members of Daesh with continuous combat function and civilians committing acts with a causal link to a specific expected harm – which is to say a specific operation such as the one in Mosul can be legitimately targeted. The civilian placing an improvised explosive device (IED) on the road can be targeted but the civilian generically producing IEDs at home, which are generally produced by Daesh cannot be targeted.
Defining the temporal limits of the direct participation in hostilities is the most controversial issue in IHL. As per the Protocols, ‘civilians shall enjoy the protection afforded […] unless and for such time as they take a direct part in hostilities’. According to the ICRC, this clearly means that when such civilians are not taking part in hostilities anymore, they regain their protection. Per the ICRC guide, ‘[m]easures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act’. However, when this is over, it’s over. They are safely at home, or working on their farms, and cannot be targeted. And maybe they will do it again from time to time. Some experts, especially those with a military background, don’t agree because they think it’s unfair. I share their opinion on the matter. A civilian takes part in the war, helps Daesh or whatever group killing people or damaging the armed forces, but cannot be targeted, how fair is this? In such cases, civilians can be arrested but cannot be targeted.
Neither in the Syrian nor in the Iraqi wars there are prisoners of war. Captured terrorists are just criminals, who must be prosecuted per domestic criminal law. However, they still have the basic protection, such as the right to a fair trial and humane treatment, coming from Common Article 3 and Article 75 of Additional Protocol II, which is believed to be customary law. And obviously, human rights law always applies. Such notions as illegal enemy combatants advocated by the Bush administration are in violation of IHL and should not be considered as relevant regarding the status of terrorists in captivity.
What are the conclusions and the implications of these changes in the international system? The most important conclusion is that peace is more elusive considering the involvement of non-state actors such as Daesh or Jabhat al-Nusra and the aims of contemporary conflicts. Since Daesh is operating within the territory of States such as Iraq and Syria, they are bound by the same IHL rules as the States are. However, they do not adhere to these rules. Moreover, they violate the rules of engagement, using civilians as human shields, killing them or forcing them to fight. Usually, the conflict ends with the de facto end of hostilities, but when a group resorts to terrorism, violence may increase and decrease for tactical reasons. Therefore, sometimes it’s difficult to determine when the conflict is over. The most important implication is that to achieve peace, the community must strive to decrease the violence on both sides by involving the civil society and enhancing the applicability and recognition of international humanitarian law (IHL), including the augmentation of controversial constructions such as the direct participation in hostilities. If we do not treat our enemies in adherence to the rules of law, we might never escape the circle of violence and retaliation. Justice and peace are intertwined.