By Natalie Thompson
An Australian news feature recently examined a defence inquiry into actions by Australian special forces overseas. One of the reported incidents is the death of a young Afghani boy, Khan Mohammed, at the hands of Australian soldiers in the Kandahar Province of Afghanistan in 2012. It is alleged that the boy was killed collecting figs in the early hours of the morning, and that his death was subsequently covered up. If the inquiry does uncover “indiscriminate, reckless and avoidable deaths of innocent civilians”, it could amount to a breach of international law. The reality, however, is much murkier.
Traditional notions of war envisage nation-states with similar military capacity and capabilities fighting each other using conventional methods of warfare. The majority of conflicts fought today, however, take place in urban environments with insurgents blending into dense civilian populations. Civilians living in areas proximate to conflict are increasingly vulnerable to attacks. Consequently, civilian involvement in conflict has increased – some voluntarily provide support, either fighting, supplying food and transport, gathering intelligence, and translating, while others are involuntarily involved due to functions they perform in everyday life. This is making it harder to distinguish those who can be attacked from those who must be protected.
Although there is no law expressly prohibiting civilians from participating in conflict, the protections given to civilians under International Humanitarian Law (IHL) are conditional in that civilians only enjoy immunity from attack ‘unless and for such time as they take a direct part in hostilities.’ Thus, established that civilians who directly participate in hostilities are lawful targets, the question turns to what direct participation in hostilities (‘DPH’) means. Despite it unfortunately not being a well-defined term, there are three generally-accepted criteria.
First, the harm likely to result from a civilian’s act must reach a certain threshold, usually by adversely affecting the military operations of one side by benefitting another. The second requirement is that there must be a direct causal relationship between the act and the harm, for example, through the laying of roadside bomb. The belligerent nexus requires there to be a close relationship between the act and the hostilities occurring between parties to the conflict – a bank robbery that incidentally results in deaths of combatants is not sufficient.
The notion of ‘direct’ participation necessitates that in situations where participation is indirect the civilian retains their protected status. While this makes sense for many cases, there will undoubtedly be situations where the line between direct and indirect participation is very fine indeed. Our situation mentioned above is one example. Photos taken at the scene show no evidence that Khan Mohammed carried any weapon that could provide clear evidence of direct participation.
That said, how were Australian soldiers to know the reason for the boy being where he was at that time? Was he really gathering figs, or was there a more sinister reason for him being out after dark? The answer to these questions can be gleaned from intelligence. But intelligence often cannot provide a complete picture.
Coming to a sensible conclusion as to what DPH means in practical terms will ensure ongoing respect for IHL. A solution may be to replace the ‘direct causation’ criterion of ICRC Guidance with ‘integral part’ in causal chain, which is, in essence, a ‘but, for’ context specific approach. This would mean that a civilian playing an integral part in a specific operation in the war effort (more than general support), is directly participating and may be treated as such.
The sad reality is that legal changes are unlikely to make much difference in the field, in the heat (and confusion) of the moment.
Natalie Thompson is a third-year Juris Doctor student at the University of Western Australia. Her favourite ways to procrastinate from study involve making art (or food), falling off bouldering walls and watching European crime dramas.
 ‘Death in Kandahar’ ABC (online), 10 July 2017 <http://www.abc.net.au/news/2017-07-10/elite-australian-soldiers-accused-of-covering-up-killing-of-boy/8466612>.
 Andrew Mack, ‘Why Big Nations Lose Small Wars: The Politics of Asymmetric Conflict’ (1975) 27(2) World Politics 175.
 Michael L. Gross, ‘Asymmetric war, symmetrical intentions: killing civilians in modern armed conflict’ (2009) 10(4) Global Crime 320, 326; ‘Suspected U.S. coalition strikes kill 56 civilians in IS-held Syrian city: monitor,’ Reuters (online), 19 Jul 2016 <http://www.reuters.com/article/us-mideast-crisis-syria-manbij-idUSKCN0ZZ16Z>.
 Sabrina Tavernise, ‘A Girl’s Life Bound Close to Hezbollah’, New York Times (online), Aug 18 2006 <http://www.nytimes.com/2006/08/18/world/middleeast/18hezbollah.html?_r=0>.
 Michael L. Gross, ‘Asymmetric war, symmetrical intentions: killing civilians in modern armed conflict’ (2009) 10(4) Global Crime 320, 325.
 Pratap Chatterjee, ‘AFGHANISTAN-US: Military Translators Risk Low Pay, Death,’ Interpress Service (online), Aug 14 2009 <http://www.ipsnews.net/2009/08/afghanistan-us-military-translators-risk-low-pay-death/>.
 Article 51(3) API; see also Article 13(3) in APII and the provisions of Common Article 3 relating to NIACs.
 Article 8(2)(b)(i) of the Rome Statute makes it a war crime to intentionally attack civilians unless they are ‘taking direct part in hostilities.’
 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC, 2009).
 See speech by MI5 Director-General Baroness Manningham-Buller: <https://web.archive.org/web/20061201170053/http://www.mi5.gov.uk:80/output/Page387.html>.