ICRC의 2009 직접적 적대행위 가담에 관한 국제인도법상 해석지침의 쟁점과 평가

Study on the Issues of the Interpretive guidance on the notion of direct participation in hostilities

The purpose of the Interpretive Guidance is to provide recommendations concerning the interpretation of notion of direct participation in hostilities. Accordingly, the 10 recommendations are made by the Interpretive Guidance, as well as the accompanying commentary. In modern war, civilian takes an active role and this changes the character of the war. And the issue regarding an importance of distinguishing not only between civilian and the armed forces, but also between civilians who do and respectively, do not take a direct part in hostilities was brought up. Derived from common Article 3 of the Geneva Conventions, the notion of taking a direct or active part in hostilities is found in many provisions in IHL. However, no provision provides a definition of direct participation in hostilities. This situation called for the clarification and the question provided to the ICRC is "what conduct amounts to direct participation in hostilities?". Interpretive guidance provides an answer as the sum total of all hostile acts carried out by individuals directly participating in hostilities. In this aspect, interpretive guidance does not refer to a person's status. And the each act must cumulatively meet the requirement. In order to qualify as direct participation in hostilities, a specific act must meet the three cumulative criteria: threshold of harm, direct causation, belligerent nexus. Issues related to interpretive guidance are first, emphasis should have been made to the part of civilian as an active attacker as well as defender to adopt the same rule of IHL as the regular armed forces. Second, adopting the idea of CCF is problematic considering fairness to the regular armed forces and protected civilian. Third, extremely narrow interpretation gives a hole to those who takes an active participation as civilian status. Fourth, another narrow interpretation technic has been used to the condition of preparatory measure. Fifth, interpretive guidance give too much emphasis on the principle of humanity. Weighing the principle of military necessity and humanity is not supportive to real practice of war. No state practice exists to support the assertion that the principle of military necessity applies as a separate restriction. The military operation is lawful as long as the target qualify as a lawful military object, collateral damage will not be excessive, and all feasible precautions are taken. Although ICRC earnestly took a position of guardian of IHL, the standard provided by the Interpretive Guidance does not reflex an appropriate balance of the military needs of states with humanitarian concern.