Rethinking Direct Participation in Hostilities and Continuous Combat Function in Light of Targeting Members of Terrorist Groups

Abstract

Endless armed conflicts against terrorist groups put civilian populations at risk. Since France
has been involved in the Sahel from 2013 onwards, transnational non-international armed
conflicts of extended geographical and temporal scope against groups designated as terrorists
are not a U.S. exception anymore. Non-international armed conflicts (NIACs) against terrorist
groups, conducted not only by the US but also by France, persist and have been reconfigured
around threat anticipation.
How can anticipatory warfare be best constrained? This article argues that it is through more
constraining rules regulating target selection in NIACs and, in particular, by redefining the
notion of continuous combat function. Many elements explored in this article indicate that the
US and France select targets that they pre-designate as terrorists, before these targets are
engaged in hostilities. Instead of responding to the observed participation of these individuals
in hostilities, strikes are based on contextual and behavioural elements ahead or outside of such
moments.
This paper argues that when war consists of threat anticipation, it becomes very extensive and
particularly risky for civilians. Furthermore, recent State practice in the counter-terrorism
context reveals the pitfalls of the notions of direct participation in hostilities (DPH) and
continuous combat function (CCF) as defined in the 2009 ICRC Interpretive Guidance. Outside
this context, the interpretations proposed in the Interpretive Guidance might seem sufficient to
constrain target selection processes and to protect civilian populations. However, when applied
to armed conflicts that are driven by threat anticipation, the pitfalls of these interpretations
emerge. I formulate a critique of these interpretations as being partly responsible for
anticipatory warfare and propose an alternative theory for the CCF test.

Keywords: direct participation in hostilities, international humanitarian law, counterterrorism, terrorism, jus in bello, targeting, drones, continuous combat function