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.

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 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 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 armed group is not constrained by whether or not that person exercises a continuous combat function. Further, the provision of membership as the decisive criterion of targetability means individuals engaging in direct participation in hostilities (DPH), as well as those providing combat or combat service support, are targetable at any time. This, in the view of the Australian Government, equalises the targetability of organised armed groups with that of State armed forces.

Practical Application in Israel

The Israeli Supreme Court in the 2006 case Public Committee Against Torture in Israel v Government of Israel (Targeted Killings) established that membership within an OAG was to be determined on a functional or conduct based approach. Members whose function is to regularly partake in hostilities on behalf of the group are targetable at all times. Although the Court in the Targeted Killings Case adopts a wider understanding of the notion of DPH than the Interpretative Guidance, their focus on functional criteria as determinative of membership and targetability remains the same.

However, the judgement of the Targeted Killings Case has recently been brought into disrepute by the 2014 Gaza Conflict Report issued by the Israeli Government. The report, whilst making no reference to the Targeted Killings Case, rejects a functional approach to membership, claiming individuals part of an organised armed group may be targeted at any time by virtue of their membership only. The Israeli government claims the rationale behind the change in approach is to equalise the position of State armed forces and OAGs at law. The report contains an analysis of State practice and opinion juris indicating that a member in an OAG need not have CCF in order to be targetable under customary international law. This is the case notwithstanding the approach of the Interpretative Guidance.

There are two conflicting approaches when determining membership in an OAG in Israel. At law the CCF test is to apply, however the membership test will often be implemented in practice. Thus, Israel’s conception of the CCF is similar to Australia’s, with CCF clearly having relevance and informing states’ understanding of the notion of OAGs, while being neither integral nor uncontested in its application.

Where to from here?

Given, states’ unwillingness to implement the CCF, ambiguity surrounding the targetability of the OAG remains. Such ambiguity places massive strain on states who strive to comply with international humanitarian law standards such as distinction. Without a comprehensive and practically applicable test for determining an individual’s membership within an OAG, the state is placed at a tactical and financial disadvantage. A new test for membership is of utmost importance but the substance of such a test remains a mystery.