Viewing the Baghuz Strike Through the Lens of Direct Participation in Hostilities
The doctrine of Direct Participation in Hostilities determines when a civilian loses their protection under the Law of Armed Conflict and is therefore eligible to be targeted by a belligerent party. U.S. Central Command raised this doctrine as a possible justification for the March 2019 strikes in Baghuz, Syria, that left eighty people dead, many of whom may not necessarily have been ISIS fighters. This analysis of the strike shows the difficulty and legal ambiguities of the Direct Participation of Hostilities doctrine.
Two U.S. Air Force F-15E Strike Eagles, the same aircraft used in the Baghuz strike, fly over northern Iraq in 2014, after striking ISIS targets in Syria. Photo: Wikimedia Commons
The views presented in this article are solely those of the author and do not represent the views of the Department of Defense.
By: Josef J. Danczuk
On November 13, the New York Times published an investigative report detailing a March 18, 2019 U.S. airstrike in Baghuz, Syria, as part of the coalition campaign against the Islamic State. The story tells how the United States, in its air support of anti-ISIS coalition forces, including the Syrian Democratic Forces (SDF), conducted two strikes against ISIS fighters in their final holdout in Baghuz. The strikes killed around eighty people, but many of those may have been civilians.
According to a press statement from Captain Bill Urban, spokesman for the U.S. Central Command (CENTCOM), which oversees U.S. military operations in the Middle East, the strike killed at least sixteen “active ISIS fighters that were engaged in attacks on SDF positions.” The strike also killed four civilians, but the United States made no determination on the legal status of sixty others killed in the blasts, claiming it was likely that “a majority of those killed were also combatants at the time of the strike.” The CENTCOM statement appears to be invoking the doctrine of Direct Participation in Hostilities (DPH), by which civilians lose their protection under the Law of Armed Conflict (LOAC).
The Doctrine of Direct Participation in Hostilities
International treaties, including the 1949 Geneva Conventions and later updates, establish the protections for civilians during war. Under LOAC, alternatively called the law of war or International Humanitarian Law (IHL), civilians are protected from attack by parties to a conflict. This applies whether the conflict is classified as an International Armed Conflict (IAC) or a Non-International Armed Conflict (NIAC). If an IAC, Article 51 of Additional Protocol I to the Geneva Convention protects civilians “unless and for such time as they take a direct part in hostilities.” If NIAC, Common Article 3 protects “[p]ersons taking no active part in the hostilities,” and Article 13 of Additional Protocol II protects civilians “unless and for such time as they take a direct part in hostilities.” The United States has signed, but not ratified, Additional Protocols I and II, though they are applicable in international forums and the United States is a party to Common Article 3. The legal analysis is largely the same for all provisions despite the minor differences in vocabulary, specifically “direct part” versus “active part.” In the Akayesu prosecution, part of the International Criminal Tribunal for Rwanda, the court determined that active and direct participation in hostilities are “so similar that . . . they may be treated as synonymous.”
Evaluating an individual’s conduct during a conflict, especially during active combat, is a complicated legal process. The International Committee of the Red Cross (ICRC) published interpretive guidance to help clarify the doctrine of DPH beyond the text of the Geneva Conventions. Caselaw from international criminal tribunals, namely the tribunals for Rwanda and the former Yugoslavia, also provides interpretation and application to real cases. The ICRC guidance breaks down DPH into three constitutive elements: threshold of harm, direct causation, and belligerent nexus. There is also a temporal aspect. Civilians only lose their protection for as long as they are directly participating in hostilities. This creates what the guidance calls a “revolving door” of protection: civilians lose their protection only when they are participating in hostilities and regain it upon concluding such activities.
This analytical framework yields a lens through which one can evaluate CENTCOM’s invocation of DPH for the Baghuz strikes. Of course, a press statement does not take the place of a thorough legal analysis, and there may be other legal justifications for the strikes. The statement specifically cites collective self-defense of SDF allies and proportionality, using 500-pound bombs against individual fighters “due to the unavailability of smaller ordinance at the time of the [strike] request.” Knowledge of the facts is also limited to the statement and the Times report. Much of the evidence, including drone footage of the personnel at the strike site, remains classified and unreleased to the public.
Analyzing CENTCOM’s Invocation of DPH
In explaining why the investigations of sixty of the dead “were unable to conclusively characterize” their status as combatants or civilians, the CENTCOM statement reports that “multiple armed women and at least one armed child were observed in the video, and the exact mixture of armed and unarmed personnel could not be conclusively determined.” And, as already mentioned, CENTCOM states that the strike targeted and took out sixteen ISIS fighters who were engaging SDF fighters from that location. The Times story, based on accounts of personnel who observed the drone footage, paints a different picture. It describes “two or three men - not 16,” with arms, but not “maneuvering, [or] engaging coalition forces.” CENTCOM chat logs described the region, but did not discuss active combat in the area.
Even if one assumes the facts of the CENTCOM narrative, there are still some potential legal ambiguities concerning the invocation of DPH. First, the observation that some of the women and children were armed does not automatically mean that they were directly participating in hostilities and therefore not protected under LOAC. The law requires that the civilians participate in hostilities directly. The element of direct causation largely gets to this point. It requires a close causal relation between a specific act and a resultant harm on the opposing party. The United States, however, evaluates the importance of the individual’s contribution to the enemy military action and focuses on the character of the act, rather than causal proximity.
If, hypothetically, the women and children held the arms for any reason other than a specific plan to participate in hostilities, the case for DPH is substantially weaker. Of course, a belligerent party need not wait until a civilian fires a weapon to consider them participating in hostilities. The ICRC guidance specifically mentions that certain preparatory measures, as well as deployment to and return from hostilities, may be considered DPH. However, the measure must be for a specific hostile act, not “aiming to establish the general capacity to carry out unspecified hostile acts.” The threshold of harm element also gets to this point. The individual’s specific act must be likely to adversely affect a party’s military operations or capacity, or inflict death, injury, or destruction.
Second, the statement also mentions that “some women and children, whether through indoctrination or choice, decided to take up arms in this battle and as such could not strictly be classified as civilians.” However, the fact that some women and children had participated in hostilities before does not mean that the ones killed in the March 18 strike had. Even if they had, DPH includes a temporal aspect. Once a civilian ceases participating in hostilities, they go through the “revolving door” back into protection until they participate in hostilities again, if they ever do. Defining when a civilian starts and ends participation in hostilities is inherently equivocal and depends on a number of factors that can be difficult to determine. Additionally, there may come a point when a civilian participates in hostilities regularly enough to cross the line into being a member of an organized armed group belonging to a party of the conflict. Such individuals enjoy no special protection as civilians under the Geneva Conventions for as long as they remain a member of that organized armed group. However, the CENTCOM statement does not advance the idea that those sixty undefined persons were a part of an organized armed group. In fact, it specifically delineated between sixteen confirmed ISIS fighters and the other sixty-four killed.
Finally, determining if a civilian is participating in hostilities is an individualized procedure. When one civilian in a group decides to forsake their protection and participate in hostilities, it does not remove civilian protection from the rest of the group. The International Criminal Tribunal for Rwanda applied this concept in multiple cases, including Prosecutor v. Semanza, where the court stated that “the possible presence of combatants within groups of refugees does not deprive those who are non-combatants of their protected status.” Therefore, even if some, or even most, of the sixty unclassified persons were directly participating in hostilities, that would not deprive the others of their civilian protection. It would, however, adjust the weights of other aspects of LOAC, such as military necessity, proportionality, and targeting analysis.
Conclusion
Despite the difficulties of determining if a civilian is participating directly in hostilities, especially so with the “revolving door” of protection, it remains an important aspect of LOAC that helps ensure legal protection for civilians during an armed conflict. DPH is not a doctrine to be invoked lightly, but only upon credible evidence that the individual in question was participating in hostilities. And, as Article 50 of Additional Protocol I reminds us, even though the United States is not bound by it, when there is “doubt whether a person is a civilian, that person shall be considered to be a civilian.” CENTCOM’s invocation of DPH as a potential justification for the Baghuz strikes highlights the difficulties in employing the doctrine to real combat situations. This is especially true in a conflict as dynamic as the war against the Islamic State, and in a battle that was ISIS’s last stand in their final holdout of Baghuz.
Josef Danczuk is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from the University of Maryland in 2015. Josef served as an Air Defense Artillery officer in the U.S. Army for over four years and continues to serve in the New York Army National Guard.