国际人道法中“直接参加敌对行动”的功能区分标准及其法理反思

Functional Distinction Criteria of Direct Participants in Hostilities in the Context of International Humanitarian Law and its Jurisprudential Challenges

无论是在历史上还是当今现实中,大量的平民在事实上都可能会以不同角色卷入到具体的武装冲突之中。随着现代武装冲突在思维范式、时空语境、科技条件等方面呈现出一系列新型的特点,“平民直接参加敌对行动”这一现象已经更加广泛地出现。与此同时,作为国际人道法基础的区分原则也正面临着越来越严重的法理挑战。传统的静态化的身份区分标准在解释力方面已经陷入困境。相比而言,建构一种以“持续作战职责”作为基准的功能区分理论就显得尤为必要。以“功能区分标准”为基础廓清和厘定“直接参加敌对行动”的法理概念有利于划分平民与直接参加敌对行动人员的界限。为了更好地落实区分原则在“直接参加敌对行动”中的应用,在红十字国际委员会《国际人道法中直接参加敌对行动定义的解释性指南》的基础之上,现代国际人道法仍需强化功能区分标准的法理价值、澄清“持续作战职责”的法理要素、划定直接与间接参加敌对行动的功能边界,从而使得国际人道法的解释体系在人道主义原则与军事必要性之间寻求一个可操作化的精巧平衡。

Under the established framework of International Humanitarian Law,the principle of distinction mandates all warring to distinguish between civilians and combatants,and between civilian objects and military objectives.For the paradigm of mentality,the temporal and spatial context,and the technological advancement,modern warfare has brought human societies with a series of new challenges in almost every aspects.The phenomenon of"direct participants in hostilities"constitute one of the most widespread and striking features in all types of armed conflicts,including both IAC and NIAC,and this present modern International Humanitarian Law with unprecedented jurisprudential challenges.Almost all traditional doctrines regarding the principle of distinction are mainly built upon the criteria of personnel status,a set of criteria that distinguishes civilian and combatants via correct identification of their societal positions.However,such criteria cannot explain many cases in a thorough and convincing manner,especially when civilians taking a part directly in hostilities.Moreover,those doctrines are relentlessly embarrassed with the advent of modern warfare such as AI wars,Autonomous Weapon Systems,Cyberwarfare and Space wars.Thus,traditional theories based on static criteria of personnel status have fallen short of their initial promises.Meanwhile,it is necessary to develop new theories that can transcend the old traditions and feed the fresh needs.First,under a framework of"civilian-combatant-Levee en masse",it is critical for any lawyers to identify under which circumstances civilians have directly taken part in hostilities.When doing this,a holistic view is needed.Secondly,the question whether certain civilians are to be deemed as DPH should be answered twofold:the realized behaviors and the aimed objectives supported by such behaviors.Generally speaking,Functional Distinction Criteria tend to emphasize on the aspects of the realized behaviors and the connection between behaviors and objectives.Thirdly,when applying Functional Distinction Criteria,Continuous Combat Function is key.This is to say that lawyers need to investigate the overall and specific functions of every hostile behaviors conducted by a civilian,and at the same time,the temporality of such functions should be taken into serious consideration.Besides,the three elements of direct participation in hostilities(threshold of harm,direct causation,belligerent nexus)recommended by the 2009 ICRC Interpretive Guidance should be also applied.By analyzing the problems of DPH in AI wars,Autonomous Weapon Systems,Cyberwarfare and Space wars,this article has shown many merits of Functional Distinction Criteria in interpreting and applying the principle of distinction in modern warfare.It is thus suggested that the introduction of Functional Distinction Criteria will not only plug interpretative loopholes of DPH in the existing International Humanitarian Law system which is based on the four Geneva Conventions and and their Additional Protocols,but also provide guiding framework for States to confront complex armed conflicts.In order to strengthen the principle of distinction in the context of DPH,based on ICRC's 2009 Interpretive Guidance,modern International Humanitarian Law still need to emphasize the jurisprudential values of Functional Distinction Criteria,clarifying the legal elements of continuous combat function,demarcating the boundaries of direct and indirect participants in hostilities.Only by this,can the entire interpretative system of International Humanitarian Law strike a delicate balance between humanity and military necessity.