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R
ESEARCH
M
EMORANDUM


T
O
:

Bonnie Docherty; William Goldman

F
ROM
:


Laura Hill

D
ATE
:

October 1, 2011

RE:

Definition of Hostile Intent


International Law and Law Reviews



Geneva Convention, Additional Protocols, and Commentary


The Geneva
Convention and its Additional Protocols do not define “hostile intent.” Nevertheless, the
documents still provide

valuable

insight into how armed forces
should

interact with
civilians under international law, and when such civilians
might
lose
the protections
they
are
ordinarily afforded
.




Balancing Security Issues with Humanitarian Concerns


One of the most enduring
themes throughout the Geneva Conventions and Additional Protocols is Parties’ desire to
accommodate both humanitarian
concerns and security issues.
1


Thus, while an
“individual protected person” is typically afforded certain privileges and rights under the
Fourth Geneva Convention,
2

s/he may lose them if the host State definitely suspects that
s/he is “engaged in activiti
es hostile to the security of the State.”
3


The Convention text
leaves “hostile activities” undefined, though the Commentaries note that
an individual’s
“political attitude towards the State” would not be sufficient to deprive him/ her of
Geneva’s rights a
nd privileges.
4

Even if an individual is suspected of “hostile activities,”
however, s/he must still “be treated with humanity” at all times,
5

which is one of
the
Geneva

Conventions


“fundamental principles.”
6




In several cases, the Fourth Geneva Conve
ntion lays out a general prohibition on
State action

e.g., “the protection to which civilian hospitals are entitled shall not
cease”

to which it then offers a narrow exception


e.g., “unless they are used to
commit, outside their humanitarian duties, acts

harmful to the enemy”


governed by
procedural rules


e.g., and “only after due warning has been given, naming, in all
appropriate cases, a reasonable time limit after such warning has remained unheeded.”
7

Such a structure highlights the tension between

security and humanitarian concerns.




1

Compare

Fourth Geneva Convention, Art. 9 (Delegates “
shall, in particular, take account of the
imperative

necessities of security of the State wherein they carry out their duties.”)
with

Id.
, at Art. 27
(“Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family
rights, their religious convictions and pract
ices, and their manners and customs.).

It is important to note
that Additional Protocols I and II, adopted in 1977 shifted the balance somewhat toward humanitarian
concerns. According to the ICRC website, for example, the Protocols were negotiated partia
lly out of
international recognition that, “[i]n today’s wars, civilians suffer the most.” ICRC Website,
http://www.icrc.org/eng/resources/documents/misc/additio
nal
-
protocols
-
1977.htm
.

2

Such protections include a prohibition on activities causing “physical suffering or extermination,” Fourth
Geneva Convention, Art. 32, and “collective penalties,”
Id.

at Art. 33.

3

See

Fourth Geneva Convention, Part I, Art. 5;
se
e also

Commentaries (Fourth). The individual would, of
course, also lose such protections if s/he is actually engaged in hostile activities.

4

See

Commentaries (Fourth).

5

See

Fourth Geneva Convention, Part I, Art. 5

6

See

Commentaries (Fourth).

7

See

Fourth Geneva Convention, Part II, Art. 19.

Warning and
Preventio
n of Harm



T
he drafters of the Geneva Convention appeared to
be particularly concerned with preventing civilian harm

throughout the conduct of
hostilities
. To this end, they established several affirmative
preventive
obligations

that
limit State behavior. In cases of internment, for example, copies of the Convention,
orders, commands, notices, regulations, and publications must be posted in the internees’
languages and communicated to those being held.
8



The Addi
tional Protocols further affirm

th
is

“p
revention of civilian harm”
principle
.


Accordingly, “[c]
ombatants must take all feasible precautions in choosing
weapons and methods of warfare in order to a
void incidental loss of life, injury to
civilians and damage to civilian objects.”
9

Such precautions include
:

“at all times
distinguish[ing]” between civilian and
military
targets

and “direct[ing] . . . operations
only against military objectives”
10
; a
general prohibition on “acts of threats of violence
the primary purpose of which is to spread terror” among civilians
11
; a bar on
“indiscriminate attacks”
12
;
using “all feasible precautions” to minimize loss of civilian
life
13
; proportionality
14
;
evacuation
15
;
and other measures.
16

Civilians are entitled to these protections, “unless and for such time as they take a
direct part in hostilities.”
17


This “hostile acts” exception to civilian immunity is narrow,
and extends only to “acts of war which by their nature o
r purpose are likely to cause
actual harm to the personnel and equipment of the enemy armed forces.”
18



Proportionality in Punishment



The Geneva Conventions distinguish between
minor
and
serious
offenses
that are
“solely
intend
ed

to harm the
Occupying
Power
.


The former
type of
offenses

which exclude attempts to harm “members of the occupying forces or
administration,” “grave collective danger[s],” and “seriou[s] damage” to military
property or equipment

are

punishable only by a proportionate length of

internment or
imprisonment.
19


The death penalty is only permitted where a protected person “is guilty
of espionage, of serious acts of sabotage against the military installations of the
Occupying Power or of intentional offences which have caused the deat
h of one or more
persons” and where certain procedural conditions are met in trial.
20


The Commentary to
the Geneva Convention notes that this Article is particularly vague and undefined, and
that it has consequently left final determination of punishment t
o the courts in each case,
“objectively weighing all the circumstances.”
21





8

See

Geneva Convention, Art. 99.

9

See
ICRC Website,
http://www.icrc.org/eng/resources/documents/misc/additional
-
pr
otocols
-
1977.htm

10

See
Additional Protocol I, Art. 48.

11

See
Additional Protocol I, Art. 51.

12

See Id.

13

See Id.
, at Art. 57.

14

See
Additional Protocol 57.

15

See
Additional Protocol 58.

16

See, e.g.
, Additional Protocol I, Arts. 48, 51, 57, 58.

17

See
Id..


18

See
Additional Protocol Commentaries.

19

See
Geneva Conventions, Art. 38.

20

See Id.

21

See
Additional Protocol Commentaries.

Customary International Humanitarian Law

(ICRC)


Much like the Geneva
Conventions and Additional Protocols, the ICRC Customary IHL Database distinguishes
between civilians and comb
atants.


Civilians are defined as “persons who are not
members of the armed forces,”
22

e.g., those persons who are not part of the “organized
armed forces, groups and units which are under a command responsible to that party for
the conduct of its subordinates.”
23


Generally, only the latter group may be targeted for
attack,
24

while the forme
r receives certain protections from violence and terror during
hostilities and occupation.
25



There is

a narrow exception to the general rule of civilian protection: direct
participation in hostilities.
26


States universally accept that, should a civilian
“DPH,” s/he
temporarily loses his/her civilian protection throughout the DPH period.
27


However,
there is no universally accepted definition of DPH.

The ICRC Customary IHL Database
cites the following examples of how some countries, militaries, and courts
have defined
DPH:






The Inter
-
American Commission on Human Rights has stated that the term
“direct participation in hostilities” is generally understood to mean ‘acts which, by
their nature or purpose, are intended to cause actual harm to enemy personnel
and
materiel
.
’”



“Several military manuals” state DPH exists “
when a civilian uses weapons or
other means to commit acts of violence against human or material enemy forces.”



Ecuadorian and U.S. military manuals use a “case
-
by
-
case” definition, in which
both manuals “give several examples of acts constituting direct participation in
hostilities, such as serving as guards, intelligence agents or lookouts on behalf of
military forces.”


Nevertheless, the examples above do not evince a “clear and uniform
definition” of
DPH.
28


The ICRC Customary IHL Database also notes that international law
does not
provide concrete rules governing cases where it

is uncertain

as to whether a civilian is
involved in DPH.

While Additional Protocol I would have States consid
er that person to
be a civilian, in practice many States have refused to incorporate a strict presumption in
favor of civilian status into their military manuals.

The U.S. Navy, for example, supports
a case
-
by
-
case analysis

“based on the

person’s behavior
, location and attire, and other
information available at the time.”
29


Law Review Articles on Hostile Intent and International Law


A preliminary search
on Westlaw of the terms “hostile intent” and “international law” located in the same



22

See Id.
, at Rule 5.

23

See Id.
, at Rule 4.

24

See
ICRC Customary IHL Database, Rules 1


2.

25

See Id.
, at Rule 2.

26

See
Id.
, at Rule 6.

27

The ICRC Customary IHL Database cites various sources, including “numerous military manuals” and
“official statements and reported practice.”
Id.


28

See Id.

29

See Id.

paragraph returned 58 results.

However, none of these sources fully explicated what
“hostile intent” means in the

context of public

international l
aw context. I would imagine
this is the case because the relevant
public
international law is vague
and

commentators
consequently accept the implicit assumption that
“hostile intent”
must

be governed by
domestic practice and rules of engagement. Thus, th
e following

comments are my
impressions only and (unless otherwise noted) do not consist of any general principles of
international law.


Proximity to Combat



Some commentators have argued that, as civilians “place
themselves in close proximity to milita
ry objectives,

they are responsible for the
associated risk of attack directed against the military target.”
30

Thus, it is conceivable
that a commander, as s/he weighs various factors for determining whether a civilian is
engaging in DPH, would justifiably include proximity to military objective as a relevant
part of the analysis.


Imminence Requirement



Self
-
de
fense is limited by necessity

which measures the
“imminence” of an attack

and proportionality.
31


In an oft
-
cited quote, Secretary of
State Daniel Webster wrote that self
-
defense is only justified where “
the necessity of that
self
-
defense is instant, overwh
elming and leaving no choice of means and no moment for
deliberation.”
32

Indeed, commentators have intimately tied hostile intent to “the imminent
use of force.”
33


Shifting Boundaries in International Law



Some scholars argue that the international law
of
self
-
defense governing interstate relationships has changed since 1945 du
e to
globalization
. This shift, when coupled with
modern surveillance technology, may make
waiting for an
imminent

or
actual
attack before responding
misguided
.
34


These scholars
consequently argue that

“[t]he doctrine of self
-
defense should not be construed by
looking to the past, but rather to the present. In light of our current reality, it seems
preposterous to suggest that a state should idly stand by until the actual physical

manifestations of an armed attack occur.”
35



Obligation to Protect One’s Forces



While international humanitarian law governs
military conduct, so too do Rules of Engagement

including ROEs that give a
commander the “inherent authority” to “
take all appro
priate action in self
-
defense of the
commander's unit and other U.S. forces in the vicinity
.”
36


This responsibility becomes



30

See
Turner, Maj. Lisa L. & Norton, Maj. Lynn G.,
Civilians at the Ti
p of the Spear
, 51
A.F.

L.

R
EV
.

1,

26

(2001).

31

See
Jensen, Eric Talbot,
Computer Attacks on Critical National Infrastructure: A Use of Force Invoking
the Right of Self
-
Defense
, 38
S
TAN
.

J.

I
NT

L
L
. 207, 218 (2002)

32

See
Martins, Maj. Mark S.,
Rules of
Engagement for Land Forces: A Matter of Training, Not Lawyering
,
143
M
IL
.

L.

R
EV
. 3, 28
-

29 (1994).

33

See Id.
, at 29


30 (citing the unclassified “gist” of
PROE

definitions of hostile intent and hostile acts).

34

Cohan, John Alan, Esq.,
The Bush Doctrine
and the Emerging norm of Anticipatory Self
-
Defense in
Customary International Law
, 15 Pace Int’l L. Rev. 283, 320 (2003).

35

See Id.
,

36

See
Grunawalt, Richard J.,
The JCS Standing Rules of Engagement: A Judge Advocate’s Primer
, 42 A
.F.

L.

R
EV
.

245, 252 (1997).

particularly weighty when a commander must make a split
-
second decision as to whether
someone is displaying hostile intent.
37


Next S
teps/ Remaining Questions

It appears that customary international law leaves
great discretion to states as they interpret hostile intent, DPH, and whether a civilian
merits protection. The
three

questions that naturally arise from the prior analysis are: (1)
To what extent should the values governing other international agreements and issues
govern any definition of “hostile intent” we propose?

(2) How greatly varied is state
practice/ military
ROE in these areas? (3) Do states define “hostile intent” concretely in
their internal documents, or is it generally a case
-
by
-
case determination?





37

See Id.
, at 253.