The Honourable Sergio Jaramillo Caro is the Colombian Vice-Minister of Defence. Mr Jaramillo Caro studied philosophy and philology at Trinity College, University of Toronto, and Corpus Christi College, University of Oxford. He has an M. Phil. in philosophy from Cambridge University and was a doctoral candidate in Greek at the University of Heidelberg in Germany. He has been an adviser to the Ministry of Foreign Affairs, was in charge of diplomacy for peace (2000–1), and was political counsellor at the Colombian embassy in Paris (2001–2). He was also adviser for political and strategic affairs at the Ministry of Defence (2002–3) and drafted the policy of Democratic Security. From 2004 to 2006 he served as director of the Ideas for Peace Foundation in Bogotá.

Civilians play an increasingly important and complex role in armed conflicts, both as victims and as perpetrators. While this overall trend towards ‘civilianization’ encompasses all types of present-day conflicts, it is twofold: it takes on a very different nature in high-technology warfare than in the context of low-technology combats that are typical of many civil wars. This article explores these two trends, shows how they merge in asymmetric warfare and outlines key implications for international stabilization and state-building efforts. The present-day conflict landscape is presented from a security policy point of view, placing the ongoing debates on the civilian participation in hostilities in a broader strategic context.

The ‘direct participation’ exception to the principle of distinction, found in Article 51(3) of Protocol I and Article 13(2) of Protocol II, embodies a long-recognized concept in the laws governing armed conflict. For centuries the broad notion that humanity demands the protection only of those citizens who are harmless has found expression in the rules and norms relating to war. This article traces the historical factors and trends which influenced the development of the ‘direct participation’ exception in its current form, revealing a tendency towards ‘humanizing’ the law in favour of civilians, notwithstanding their increased military value.

This article examines the legal problems associated with human shields. The author begins by discussing the absolute nature of the prohibition on their use and goes on to consider the precautions to be observed by the party being attacked. A violation of the ban on use of human shields by the attacked party is not an act of perfidy and does not release the attacker from his obligations. Because human shields are civilians, they are not legitimate objects of attack, even where they are acting in a voluntary capacity, as they are not taking direct part in hostilities. Among the attacker's obligations to take precautions, the proportionality principle applies in the classic way, even in the case of voluntary human shields.

Three main arguments may explain why few cases in international (and national) criminal law include charges for attacks against civilians or civilian objects. The law may be not sufficiently clear, there may be a lack of evidence or the selection of military targets may be based on mainly subjective considerations, which make it very hard to establish individual culpability. This article examines some legal and practical reasons for the difficulties the prosecutor faces when trying to charge individuals with such crimes. Although there are few examples, the ICTY has shown that it is generally possible to hold individuals responsible for such crimes.

The ‘equal application’ principle is that in international armed conflicts, the laws of war apply equally to all who are entitled to participate directly in hostilities, irrespective of the justice of their causes. The principle, which depends on maintaining separation between jus ad bellum and jus in bello, faces serious challenges in contemporary armed conflicts and discourses. Some variations of the principle may be inevitable. However, it has a firm basis in treaties and in historical experience. It is the strongest practical basis that exists, or is likely to exist, for maintaining certain elements of moderation in war. The rival proposition – that the rights and obligations of combatants under the laws of war should apply in a fundamentally unequal manner, depending on which side is deemed to be the more justified – is unsound in conception, impossible to implement effectively and dangerous in its effects.

The theoretical separation of jus ad bellum and jus in bello provides important protection during armed conflict. It guarantees that jus in bello will apply regardless of the cause of a conflict. However, this distinction has been challenged by the view that in some cases a situation of self-defence may be so extreme, and the threat to the survival of the state so great, that violations of jus in bello may be warranted. The situation is compounded by the confusion of the principles of necessity and proportionality under jus ad bellum and jus in bello in both academic writing and the jurisprudence of international courts. The dangers of blurring the distinction will be elucidated by examining how jus ad bellum considerations have affected the application of jus in bello in armed conflicts between states and non-state actors.

The present document resulted from an expert process initiated and conducted by the ICRC from 2003 to 2008. Dr. Nils Melzer, Legal Adviser at the ICRC, who has been responsible for the expert process since 2004, is the author of the Interpretive Guidance and most background documents and expert meeting reports produced during the process. The ICRC would like to express its gratitude to the experts, all of whom participated in the process in their personal capacity.