CYIL vol. 9 (2018)

BIRUTĖ PRANEVIČIENĖ – VIOLETA VASILIAUSKIENĖ CYIL 9 ȍ2018Ȏ membership in the sense of IHL, as such, such a person’s contact with a particular armed terrorist group might be not sufficient to recognize him as a member of that armed group. It needs to be emphasized that, in the sense of the principle of distinction in IHL, membership cannot depend on family ties, the criterion of free membership, and similar criteria. Instead, membership depends on whether the permanent function of a person in the group corresponds to the function assumed by the group as a whole, that is, whether a person is constantly and directly involved in military action on behalf of a particular group (“continuous combat function”). 34 This term does not mean that the individual is entitled to combatant privilege, but it is outlined in order to distinguish non-state armed forces from civilians who are involved in hostilities only spontaneously, accidentally or not regularly, or from civilians who take political, administrative, or other fighting functions in a particular organisation. Persons accompanying or supporting organized armed groups, who are not continuously involved in military activities (this is not their function), are not considered to be members of these organizations in the sense of IHL. Therefore, these criteria also apply to members of terrorist groups involved in a non- international armed conflict. Only those members of armed terrorist groups who are continuously involved in hostilities and carry out acts of terrorism which, by their intensity, are equivalent to armed conflicts, must be considered members of these organizations in the sense of the IHL, that is to say, they must be regarded as legitimate targets both when they engage in hostilities and when they are not participating in such acts at the immediate moment. It is easier to prove this function and overall justification for targeting when the targeted person is a known terrorist leader. The RAND corporation indicates that “targeting known terrorist leaders presents fewer challenges in applying IHL principles because they are by definition easier to distinguish from civilians. They have been assessed to be high value targets, their identity has been confirmed, and they are clearly hostile combatants. Targeting operatives closely identified with a terrorist group is more challenging, because their military value is not as high and their ‘continuous combat function’ may be more difficult to confirm.” The authors of the study further point out that “Regardless of their exact status, the question for such operatives is ‘do they pose a continuing threat sufficient to warrant killing them?’ Suspected affiliates based on behaviour encompass the most challenging category, because their military value and combat function may be the least clear, sometimes to the point where it cannot be said for certain they are even hostile combatants.” 35 The question arises whether in practice it is possible to precisely determine who is a combatant or a fighter, and the precision of the technology used in UAVs could also pose some questions. On the one hand, it is alleged that Predator unmanned aerial vehicles are more accurate than conventional military aircraft because of their lower speeds and because unmanned airplanes can fly over their target for several hours. 36 It is not essential for their 34 MELZER, N. Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law , ICRC, Geneva, 2009. p. 33. 35 Davis, L. E., McNerney, M., Greenberg, M. D. An Analytical Framework for Policies Involving Long-Range Armed Drones . RAND Corporation, https://www.rand.org/content/dam/rand/pubs/research_reports/RR1600/ RR1610/RAND_RR1610.pdf [accessed 21 May 2018], p. 7. 36 WUSCHKA, S. The Use of Combat Drones in Current Conflicts – A Legal Issue or a Political Problem? Goettingen Journal of International Law, Vol. 3, 2011:891-905, p. 896.

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