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conduct of hostilities
Manual. Rule 32 prohibits attacks against civilians, thereby suggesting that, subject to other restrictions in the law of armed conflict, those who are not civilians may be attacked. Rule 35 provides that despite being civilians, individuals who directly participate in hostilities lose their protection from attack. With regard to a levée en masse, the conclusion that its participants may be attacked is drawn by inference from the fact that they enjoy combatant status (Rule 27). 2. Status or conduct may render an individual liable to attack. The targetability of the first two categories of persons is based on their status, whereas the targetability of the latter two depends on the conduct in which they engage. 3. The term ‘members of the armed forces’ is defined and discussed in the Commentary accompanying Rule 26. In general, it refers to members of the regular armed forces and groups, such as certain volunteer groups or resistance movements, that are assimilated to the regular armed forces. However, members of the armed forces who are medical or religious personnel, or who are hors de combat, are not subject to attack.56 Individuals are hors de combat if they have been wounded or are sick and they are neither engaging in hostile acts nor attempting to escape, have been captured, or have surrendered. A member of the armed forces who, despite being sick or wounded, continues to engage in cyber operations directed against the enemy, or that enhance or preserve his or her own side’s military capabilities, is not hors de combat.57 4. The International Group of Experts was divided over qualification as a member of an organized armed group (Commentary to Rule 23). Some of the Experts took the position that mere membership in such a group suffices. In other words, once it is reliably established that an individual belongs to an organized armed group, that individual may be attacked on the same basis as a member of the armed forces. Other Experts adopted the position set forth in the ICRC Interpretive Guidance, which limits membership in organized armed groups to those individuals with a ‘continuous combat function’.58 56
57
58
Geneva Convention I, Arts. 24, 25; Additional Protocol I, Art. 41; US Commander’s Handbook, paras. 8.2.3, 8.2.4.1, 8.2.4.2; UK Manual, para. 5.6; Canadian Manual, para. 309; German Manual, para. 601; AMW Manual, Rule 15(b); NIAC Manual, paras. 2.3.2, 3.2; ICRC Customary IHL Study, Rule 87. See, e.g., ICRC Additional Protocols Commentary, paras. 1621–2 (characterizing an attempt to communicate with one’s own side as a ‘hostile act’). ICRC Interpretive Guidance at 27. The notion involves an individual undertaking a ‘continuous function for the group involving his or her direct participation in hostilities’. Ibid. at 33.