Regulating the Irregular – International Humanitarian Law and the Question of Civilian Participation in Armed Conflicts

In the more than thirty years that have passed since the adoption of the Additional Protocols to the Geneva Conventions of 1949, there has been no revisiting of the Geneva laws, to see whether they still effectively regulate their subject-matter. Indeed, even if the Geneva Conventions were debated for revision, it seems highly unlikely that such revision would go ahead. There are so many parties that have a stake in the conduct of armed conflict that it seems doubtful that any kind of consensus could be reached. A graphic example of the difficulties of achieving consensus was seen during the Expert Process convened to discuss the concept of Direct Participation in Hostilities. Disagreements over the final text, known as the Interpretive Guidance on Direct Participation in Hostilities, resulted in almost a third of the fifty experts involving withdrawing their names from the document. Given this background, this paper will look at the history of international humanitarian law relating to regulating irregular participation in armed conflict, as a case study to demonstrate the increasingly difficult task of achieving consensus on the international plane. From the first provisions in the Hague Regulations regarding levee en masse, to the Geneva Conventions and the Additional Protocols, this paper will look at how non-conventional combatancy has been regulated, and examine the debates surrounding the expansion of the category of combatant. This paper will culminate in an analysis of the ICRC Expert Process on Direct Participation in Hostilities; and argue that both the final Interpretive Guidance, and the controversy leading up to and surrounding its publication, is demonstrative of the obvious stumbling blocks facing any new treaties regarding participation in armed conflict