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ICRC, Interpretative Guidance on the Notion of Direct Participation in Hostilities, February 2009

The Interpretive Guidance is an expression solely of the ICRC’s views.52 A group of eminent legal experts were consulted during the process, but the positions enunciated are the ICRC’s alone.

It is explained in the introduction to the Guidance paper that the document is not and cannot be a text of a legally binding nature. Only state agreements (treaties) or state practice followed out of a sense of legal obligation on a certain issue (custom) can produce binding law. Hence, the paper does not purport to change the law, but provides an interpretation of the notion of direct participation in hostilities within existing legal parameters.

IHRL standards are not reflected in the Guidance paper as the paper solely relates to international humanitarian law and the interpretation of the notion of direct participation in hostilities.

Humanitarian Policy and Conflict Research (HPCR), Manual on International Law Applicable to Air and Missile Warfare, 15 May 2009

This ManuaP3 was elaborated by a group of experts under the guidance of HPCR’s Senior Academic Adviser, Professor Dr Yoram Dinstein.5[1] The ICRC was invited to participate as an observer. [2] [3] {{5[1] The document was drafted by Arne Willy Dahl, Bruno Demeyere, Yoram Dinstein (Chair),Wolff Heintschel von Heinegg, Jean-Fran^ois Queguiner, and Michael N. Schmitt.}}

As a follow-on to the Manual’s publication, a team of experts—all of whom were involved in the drafting of the Manual—were made available to deliver two- or three-day tailored courses to groups of military professionals (either operators or military lawyers).55 Such training courses are organized by the Geneva Centre for Security Policy. It is stated on the Centre’s webpage that the Centre will be ‘delighted to hear from any nations or institutions that are considering taking advantage of the courses’^6

The Manual does not have binding force but nevertheless seeks to ‘present a methodical restatement of existing international law on air and missile warfare, based on the general practice of States accepted as law (opinio juris) and treaties in force’.57 It is emphasized in the introduction to the document that no attempt has been made to ‘be innovative or to come up with a lex ferenda (however desirable this may appear to be): the sole aim has been to systematically capture in the text the lex lata as it is.’

Nevertheless, it is also stated in the introduction that: ‘From the onset of the Project, it was perceived that—if the HPCR Manual is to have any impact in the world of reality—i t cannot be finalized without prior consultations with Governments.^8 While the HPCR did not seek the endorsement of governments for the Manual, it believes that their views as to the applicable law are indispensable to the elaboration of both the Black-letter Rules and the Commentary. Participating government representatives provided many critical comments and observations. These were subsequently reviewed by the Group of Experts, leading to a considerable revision of the HPCR Manual.

There might arguably be a conflict—or at least a potential conflict—between, on the one hand, ‘stating the lex lata law as it is’ and, on the other hand, consulting with selected states with a view to ensuring that the identified law is acceptable to them.

The Manual is mainly applicable in international armed conflicts. However, some rules are also found to be applicable in non-international armed conflict. It is indicated in the commentary to the Manual—on a section-by-section or rule-by-rule basis—whether the same or similar rules are also applicable in non-international armed conflict.

Human rights norms are almost entirely excluded from the Manual. It is explained in the introduction to the Manual that ‘there was discussion of human rights law without agreement. Most members of the Group of Experts believe that [5] [6] [7] [8]

it has only minimal bearing on air and missile warfare in international armed conflicts because the law of armed conflict is lex specialist9 However, IHRL might play a role in situations of international armed conflict, as stated by the European Court of Human Rights in Hassan v. UK in 2014: ‘consistently with the case-law of the International Court of Justice, the Court considers that, even in situations of international armed conflict, the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law’.[9] [10] [11] [12] [13] [14] [15] Furthermore, the ECtHR has, in several cases, applied the ECHR to the conduct of hostilities, for instance during Russian airstrikes in Chechnya in 2011.61 See section 2 for more details on the application of IHRL in times of armed conflict.

  • [1] 2 Swiss Federal Department of Foreign Affairs, ‘Participating States of the MontreuxDocument’, .
  • [2] 52 The Interpretative Guidance Paper can be found here: .
  • [3] The Manual can be found here: . The Program on Humanitarian Policy and Conflict Research is a researchand policy programme that provides technical assistance and information support for internationalorganizations engaged in humanitarian action and conflict transformation. The Program was established in August 2000 as a collaborative effort of the Harvard School of Public Health (HSPH), theExecutive Office of the United Nations Secretary-General, and the Swiss Federal Department ofForeign Affairs, with the governments of Switzerland and Sweden serving as its core donors.
  • [4] 5{{2 Swiss Federal Department of Foreign Affairs, ‘Participating States of the MontreuxDocument’, .
  • [5] Geneva Centre for Security Policy, ‘Emerging Security Challenges Programme’, .
  • [6] 56 A two-day training course on the Manual was organized in Denmark in spring 2014 for, interalia, military lawyers and operators.
  • [7] Program on Humanitarian Policy and Conflict Research, ‘Commentary on the HPCR Manualon International Law Applicable to Air and Missile Warfare’ (Published paper, Mar. 2010): 2.
  • [8] The following states were consulted during the drafting process: Belgium, Brazil, Canada,Democratic Republic of Congo, People’s Republic of China, Denmark, Egypt, France, India, Italy,Japan, Jordan, Republic of Korea, Mexico, Netherlands, Nigeria, Norway, Pakistan, Russian Federation,Saudi Arabia, Spain, Sweden, Switzerland, United Kingdom, and United States.
  • [9] Program on Humanitarian Policy and Conflict Research, ‘Commentary on the HPCR Manualon International Law Applicable to Air and Missile Warfare’ (Published paper, Mar. 2010): 6.
  • [10] ECtHR (GC), Hassan v. The United Kingdom, App. no. 29750/09, 16 Sept. 2014, para. 103.
  • [11] See ECtHR, Kerimova v. Russia, 3 May 2011.
  • [12] The Copenhagen Principles and Guidelines can be found here: . Consult the chapter by Bruce ‘Ossie’ Oswald in this volume for a morethorough and comprehensive description and discussion of the Guidelines.
  • [13] Eighteen states participated in the meeting on 19 Oct. 2012, namely: Argentina, Australia,Canada, China, Denmark (Host), France, Finland, Germany, Malaysia, the Netherlands, Norway,the Russian Federation, South Africa, Sweden, Turkey, Uganda, United Kingdom, United States ofAmerica. Two States—Sweden and Russia—were unwilling to welcome the Copenhagen Guidelineswithout noting the lack of reference to international human rights norms in the CopenhagenGuidelines. See the text.
  • [14] 64 ‘The Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines’ in theCopenhagen Principles and Guidelines, para. 1.2.
  • [15] Principle II in the Copenhagen Principles and Guidelines.
 
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