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19 J. Transnat'l L. & Pol'y 281 (2009-2010)
The Dilemma of Direct Participation in Hostilities

handle is hein.journals/jtrnlwp19 and id is 285 raw text is: THE DILEMMA OF DIRECT PARTICIPATION IN HOSTILITIES ERIC CHRISTENSEN* A universal and comprehensive definition of direct participation in hostilities (DPH) does not exist. Furthermore, modern warfare's tendency to blur the distinction between combatant and civilian ne- cessitates a new interpretation of DPH. However, States have incen- tives to pursue narrow or broad interpretations of DPH, or even both. These contradictory strategies create a dilemma for policy- makers who seek to reinterpret the concept of DPH. Any revision is likely to put some group of individuals at risk; there is not a simple answer to the question of how to best revise DPH. Instead, a dra- matic revision of DPH is needed. This Essay will briefly examine the law of armed conflict before exploring the merits of the interpre- tations of DPH adopted by the United States, Israel, and the Inter- national Committee of the Red Cross. Lastly, this essay will rec- ommend a potential solution to the dilemma of DPH interpretation: a limited membership- based approach. TABLE OF CONTENTS INTRODUCTION ...................................... ....... 282 I. THE LAW OF ARMED CONFLICT AND DIRECT PARTICIPATION IN HOSTILITIES ..................................... 285 A. A Brief Summary of the Law of Armed Conflict......... 285 B. Direct Participation in Hostilities.... ........... 287 II. THE U.S. INTERPRETATION OF DIRECT PARTICIPATION IN HOSTILITIES. ................................. ....... 290 A. Counterterrorism Operations ........... ....... 290 B. Military Contractors and Civilian Employees............ 294 C. Conclusion .......................... ..... 298 III. THE ISRAELI INTERPRETATION OF DIRECT PARTICIPATION IN HOSTILITIES ............................... ...... 299 A. Historical Background ............... ....... 300 B. The PCATI v. Israel Decision ............ ...... 300 C. Conclusion ............................... 304 * The author would like to thank Professor Frank Gavin of the University of Texas Lyndon B. Johnson School of Public Affairs and Professors Derek Jinks and Robert Chesney of the University of Texas School of Law, whose efforts and ideas have made this essay far better. However, all remaining errors are solely that of the author. I would also like to thank Kelly Stephenson for his generosity and help and Kate Doty for her editorial eye. Lastly, I would like to thank my wife, Laura Christensen, for graciously undertaking the lion's share of our wedding planning while I worked on this essay. 281

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