ABSTRACT
The previous discussion indicated that the law and Interpretive Guidance surrounding the issue of direct participation in hostilities and membership of organised armed groups is unclear and thus unsatisfactory. Indeed, as discussed earlier, the ICRC’s criterion for ‘direct causation’ was criticised as lacking plausibility due to its failure to take into consideration established and pragmatic approaches taken to notions of participation and causation in international and domestic criminal law.1 Seen in this light, individuals can foresee that general types of indirect contribution to the commission of proscribed acts or contributions to a common criminal plan or enterprise will lead to penal repression. In contrast, under the unclear rules and interpretations of humanitarian law relating to participation in hostilities and membership of organised armed groups, civilians are not able to foresee with sufficient clarity the forms of conduct that could lead to the deprivation of their immunity from attack as well as the duration of any deprivation, given that the rules as they stand grant states a broad margin of appreciation to construe broadly what constitutes harm and what is causative of harm in the context of hostilities. Moreover, it was suggested that this implied that established models concerning the harmful nature and causative power of forms of indirect participation and coperpetration in this regard could assist with clarifying the modalities and the parameters of depriving civilians of their immunity from attack.
