The Difficulty of Targeting Organised Armed Groups: A Review of the ICRC’s Continuous Combat Function in Practice By Joey Biddle The 21st century has witnessed the rise of the organised armed group (“OAG”) in the international sphere, complicating the application of the international humanitarian law (“IHL”) principle of distinction. Distinction requires that parties to an armed conflict differentiate between combatants and civilians when using military force. In IHL, combatants are legitimate targets whilst civilians are immune from attack. This immunity lasts only for such a time as the individual does not directly partake in hostilities. Members of OAGs are not combatants for the purposes of IHL. Failing the introduction of additional criteria, a member of an OAG most closely resembles a civilian who loses and regains immunity after each specific act, creating a ‘revolving door’ of targetability.
member of an OAG if their continuous function is to take a direct part in hostilities. This is known as the continuous combat function (CCF). The Guidance’s proposal of the continuous combat function has not been without criticism, failing to be implemented in many states.
Practical Application in Australia In the tabling of the Advisory Report on the Criminal Code Amendment (War Crimes) Bill 2016, Australia rejected the centrality of the continuous combat function. The Explanatory Memorandum to the Bill states that “all members of an organised armed group can be targeted with lethal force, for so long as they remain members of that group, subject to the ordinary rules of international humanitarian law.”
The ICRC’s Continuous Combat Function In 2009, the ICRC published an Interpretative Guidance attempting to limit the revolving door and provide clarity as to the targetability of OAGs. The Guidance states that individuals deemed to be members of an OAG will lose their civilian protections for as long as they remain members. For this period, they are no longer considered to be civilians, instead falling into the exclusive category of a member of an OAG, and so may be targeted at any time. An individual is a
The Attorney-General’s Department provides that the determination of whether the individual can be targeted is not about function (as envisioned by the Interpretative Guidance’s CCF test), but rather membership. It is by virtue of the individual’s membership within the OAG that they are targetable. The question of function within that group is secondary and may only be relevant when attempting to determine whether membership exists. A person’s membership in an organised 10
