I.
Introduction
1. Good afternoon, your Excellency, may it please the Court. My name is Daniel Kim and I
appear with Chanju Kim for the prosecution. I will address the preliminary matters and
count 1 for 20 minutes, while my co-counsel will address count 2 for 15 minutes. We
respectfully reserve 5 minutes for rebuttal.
2. Your Excellency, the Prosecution presents the following issues before the Court:
3. First, whether the conduct took place in the context of, and was associated with, a
non-international armed conflict; and
4. Second, whether the elements of Count 1, the war crime of murder under Article
8(2)(c)(i), are satisfied.
5. I will conclude with individual criminal responsibility under Article 25(3)(b).
6. Before turning to Count 1, the Prosecution will begin with the Preliminary Matters.
II. Preliminary Matter
7. Conclusion (overall): Your Excellency, there are substantial grounds to believe that a
non-international armed conflict existed in Manustan on 30 June 2024, and that the
charged conduct was closely associated with that conflict.
8. Rule (Conflict Classification): Under Tadić, a non-international armed conflict (NIAC)
exists where there is protracted armed violence between governmental authorities and
organized armed groups, assessed through the criteria of intensity and organization.1 The
ICC follows this same test.2
9. Application (Conflict Classification): The hostilities between the Manustan Armed
Forces (MAF) and the Free Seti Party (FSP) clearly fall within this definition.
Throughout 2024, the FSP engaged in sustained armed confrontations against the State.
This meets the Tadić threshold.
1
Tadić, IT-94-1-T, ¶562 (1997). See also Tadić Jurisdiction Decision on Interlocutory Appeal, para. 70.
2
ICC, Prosecutor v. Jean-Pierre Bemba Gombo, "Trial Judgement", ICC-01/05-01/08, 21 March 2016, paras.
127-130, ICC, Prosecutor v. Lubanga, "Decision on confirmation of charges", ICC-01/04-01/06-803-tEN, 29
January 2007, para. 229, ICC, Prosecutor v. Mbarushimana, "Decision on confirmation of charges",
ICC-01/04-01/10-465-Red, 16 December 2011, para. 97.
10.Rule (Intensity): Intensity is measured by the severity, frequency, and duration of
attacks, the number of casualties, the scope of military operations, and the mobilization of
armed forces.3
11.Application (Intensity): The FSP conducted repeated, coordinated, and deadly attacks:
(1) The Victoria Barracks bombing killing over 150 MAF soldiers; (2) the assassination
of the interim Governor; (3) the embassy siege; (4) bombings in residential areas causing
civilian deaths; (5) and attacks on multiple military installations.
12.Manustan responded with full military deployment, special-forces operations, and
sustained counter-insurgency measures. This pattern of prolonged and large-scale
hostilities far exceeds the intensity threshold recognized by the ICTY and ICC.
13.Rule (Organization): The ICC and ICTY evaluate organization by examining the
presence of a command structure, planning capacity, access to weapons, operational
coordination, and ability to speak with one voice.4
14.Application (Organization): The FSP demonstrates all hallmarks of an organized armed
group. It operated through structured, self-sufficient cells, carried out complex attacks,
maintained clear chains of communication, and had access to military-grade weapons.
This satisfies the organization standard articulated in ICC cases such as Jean-Pierre
Bemba Gombo, Lubanga, Garda, Mbarushimana and later ICTY jurisprudence.5
3
ICTY, Prosecutor v. Boškoski and Tarčulovski, "Trial Judgment", IT-04-82-T, 10 July 2008, para. 177, ICTY,
Prosecutor v. Dorđević, "Appeals Judgement", IT-05-87/1-A, 27 January 2014, para. 1523, ICTY, Prosecutor v.
Haradinaj et al., "Trial Judgment", IT-04-84-T, 3 April 2008, para. 394.
4
ICC, Prosecutor v. Jean-Pierre Bemba Gombo, "Trial Judgement", ICC-01/05-01/08-T, 21 March 2016, paras.
132-136, ICC, Prosecutor v. Lubanga, "Trial Judgment", ICC-01/04-01/06, 14 March 2012, para. 515, ICC,
Prosecutor v. Garda, "Decision on confirmation of charges", ICC-02/05-02/09-243-Red, 8 February 2010, para. 91,
ICC, Prosecutor v. Mbarushimana, "Decision on confirmation of charges", ICC-01/04-01/10-465-Red, 16 December
2011, para. 104-106, ICTY, Prosecutor v. Haradinaj et al., "Trial Judgment", IT-04-84-T, 3 April 2008, para. 64,
ICTY, Prosecutor v. Boškoski and Tarčulovski, "Trial Judgment", IT-04-82-T, 10 July 2008, para. 177, ICTY,
Prosecutor v. Dorđević, "Appeals Judgement", IT-05-87/1-A, 27 January 2014, para. 1523, ICTY, Prosecutor v.
Lukić and Lukić, "Trial Judgment", IT-98-32/1-T, 20 July 2009, para. 883-884.
5
The identification of an armed group as sufficiently organized for the purpose of IHL classification thus does not
require the fulfilment of all indicative factors nor of any one in particular. Judicial practice does not prioritize any of
them, yielding rather to a case-by-case analysis based on a contextual examination of the totality of the
circumstances. (International Committe of The Red Cross Opinion Paperl 20240
15.Rule (Nexus): Under Kunarac, Tadić, and Orić a crime is associated with an armed
conflict where the conflict played a substantial part in the perpetrator’s ability or decision
to commit the act, or where the act was committed under the guise of the conflict.6
16.Application (Nexus): The killings of Roy and Lana occurred during Operation Snake
Elimination, a mission expressly ordered by President Smith as part of Manustan’s
declared “war” on the FSP. The Scorpions acted solely because of the NIAC. The nexus
requirement is therefore satisfied.
17.Conclusion (Overall): For these reasons, Your Excellency, the Prosecution submits that
a non-international armed conflict existed and that the charged conduct was intimately
linked to that conflict.7
18.If there are no further questions, with the Court’s permission, I will now proceed to Count
1: the war crime of murder under Article 8(2)(c)(i).
Count 1: War Crime
D. ELEMENT 5 - KILLING
32.Conclusion: The Scorpions killed Roy Gomez directly and Lana Gomez indirectly.
33.Rule: The crime of murder must be committed with both conduct and consequent intent.8
The conduct intent is satisfied if the attack is the result of the perpetrator's free
determination to act.9 As for consequent intent, the degrees encompass the forms
34.that the perpetrator acted deliberately or failed to act to cause the death of one or more
persons, which is “direct intent”, or whereas he or she was aware that death would occur
6
Tadić, IT-94-1-AR72(1995), ¶69-70[“Tadić(1995)”], Kunarac et al., IT-96-23 & IT-96-23/1-A(2002), ¶58, ICC,
Prosecutor v. Jean-Pierre Bemba Gombo, "Trial Judgement", ICC-01/05-01/08-T, 21 March 2016, paras. 142-144,
ICTY, Prosecutor v. Orić, "Trial Judgment", IT-03-68-T, 30 June 2006, para. 256.
7
NOTE: An international armed conflict (“IAC”) exists wherever there is recourse to armed force between two
States, regardless of if the state of war is recognised by them. (Geneva Conventions, common article 2.)
8
Katanga, ¶793.
9
Commentary on the Law of the International Criminal Court(Mark Klamberg ed., 2017), ¶307.
in the ordinary course of events,10 which does not accommodate a lower standard than the
one required by dolus directus in the second degree known as “oblique intent”.11
35.Application: Roy was a civilian and visibly defenseless. Despite recognizing his
protected civilian status, the Scorpions intentionally shot and killed him which is an act
reflecting a clear purpose to cause death. Their conduct aligns precisely with deliberate
killing, leaving no ambiguity as to intent. Roy’s startled movement — rolling off the bed
— does not meet the DPH threshold as it lacks harm, direct causation, and belligerent
nexus. Given the absence of an immediate threat and the ability to issue further warnings
or commands, opening fire reflects a deliberate decision to use lethal force against a
defenseless civilian.
36.The Scorpions also possessed at least oblique intent with respect to Lana. They
encountered her as a civilian non-combatant, and prior elements confirm they knew this.
Although their initial objective may have centered on Roy, they proceeded to employ
lethal force against Lana in circumstances where death was certain in the ordinary course
of events, shooting a defenseless infant civilian at close range leaves no realistic non-fatal
outcome. Even if they did not specifically “desire” her death, they were fully aware that
their actions would inevitably cause it. Her death therefore falls under dolus indirectus,
which is permissible under Article 30 without invoking dolus eventualis.12
37.Conclusion: The Scorpions freely chose to carry out the lethal attack and either intended
the deaths directly (Roy) or knew death was the inevitable result of their conduct (Lana).
A. ELEMENT 1 - PROTECTED STATUS
10
Statute, Article 30(2); Katanga, ¶793.
11
Bemba(2009) Judgement ¶596 para. 1394-1401, The Appeals Chamber held that an aider or abettor under Article
25(3)(c) need not know the precise details of the offence, only the essential elements, and may be liable even where
assistance is provided before, during, or after the crime, so long as it is given with the purpose of facilitating its
commission
12
Snyman defines dolus directus as comprising in a person ‘directing his will towards achieving the prohibited result
or towards performing the prohibited act’. He defines dolus indirectus as where ‘the prohibited act or result is not
X’s goal, but he realises that if he wants to achieve his goal, the prohibited act or result will of necessity materialise’.
Burchell defines dolus eventualis as where ‘the accused does not “mean” to bring about the unlawful circumstance
or to cause the unlawful consequence which follows from his or her conduct, but foresees the possibility of the
circumstance existing or the consequence ensuing and proceeds with his or her conduct’
19. Conclusion: Both Roy and Lana Gomez were civilians taking no active part in
hostilities.
20. Rule: In a non-international armed conflict, civilian status is defined negatively. As
clarified in the ICRC’s Interpretive Guidance, all persons who are not members of State
armed forces or of an organized armed group with a “continuous combat function” (CCF)
are civilians, and therefore protected against direct attack.13 Membership in an organized
armed group is functional, not political. Individuals lose civilian protection only while
they: (1) Have a continuous combat function, or (2) Are directly participating in
hostilities at the relevant time. Once an individual disengages from such a function, they
regain civilian protection.14
21.Application: Roy Gomez had disengaged entirely from the FSP: he took leave to care for
his newborn, instructed the FSP not to contact him, and lived openly with his family. He
held no continuous combat function.
22.Lana’s status is even clearer. As a one-month-old infant, she could not be a member of
any organized armed group, nor could she participate in hostilities. She is the paradigm of
a protected civilian, falling squarely within the core of Common Article 3’s humanitarian
guarantees.
23.Conclusion: Accordingly, Your Excellency, Both victims were fully protected under
IHL.
B. ELEMENT 2 - AWARENESS OF PROTECTED STATUS
13
Nils Melzer, Interpretive Guidance on The Notion of Direct Participation in Hostilities Under International
Humanitarian Law (2009) (ICRC)-p.27-36. In regards to the definition of a continuous combat function:
“individuals whose continuous function it is to take a direct part in hostilities (“continuous combat function”)”.
“direct participation in hostilities” refers to conduct which, if carried out by a civilian, suspends his protection
against the dangers arising from military operations. Most notably, for the duration of his direct participation in
hostilities, a civilian may be directly attacked as if he were a combatant.
14
Ibid
24.Conclusion: The Scorpions knew, or should have known, that Roy and Lana were
civilians.
25.Rule: In Katanga, the ICC held that the perpetrator need only be aware of factual
circumstances, not legal classification.15 Article 50(1) of Additional Protocol I
emphasizes that any doubt must be resolved in favor of civilian protection.16 The
attackers must take feasible precautions to verify the nature of the target.17
26.Application: The Scorpions conducted surveillance and clearly saw a family home: a
sleeping wife, a ten-year-old child, a newborn, and an unarmed father. Unloaded weapons
were stored away, not carried. Even if they doubted his past political role, Dorđević
requires a presumption of civilian status. Their failure to assess status and their entry into
an unmistakably civilian environment satisfy the awareness requirement. Furthermore,
The Scorpions removed the visible weapons near the cot prior to confrontation, meaning
that at the moment of attack, they believed Roy had no accessible weapons. The
later discovery of additional unloaded firearms hidden under the bed cannot
retroactively justify the killing; intent is judged by information known at the time,
not by post-hoc findings.
27.Conclusion: The perpetrators were aware or should have at least been aware of the
victims’ protected civilian status.
C. ELEMENT 4 - AWARENESS OF ARMED CONFLICT
28.Conclusion: The perpetrators were fully aware that the attack took place in an armed
conflict.
15
Elements of Crimes, Art. 8(2)(e)(i). See also Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Judgment (TC),
7 March 2014
16
ICTY, Prosecutor v. Dorđević, "Appeals Judgement", IT-05-87/1-A, 27 January 2014, para. 522. “The Appeals
Chamber recalls that the principle contained in Article 50(1) of Additional Protocol I, that in cases of doubt a person
shall be considered a civilian, is limited to the expected conduct of a member of the military.” This limitation is cited
from Kordic and Cerkez, Appeal Judgement, para. 48, referring to Blaškić Appeal Judgement, para. 111. See also D.
Milosevic Appeal Judgement, para. 60.
17
ICRC Customary Rule 16
29.Rule: In Bemba, the ICC held that the perpetrator must be aware of the factual
circumstances establishing the existence of a conflict.18
30.Application: The Scorpions were a special-forces unit created for the State’s “war” on
the FSP. They received direct orders to eliminate FSP operatives. The entire operation
was planned within the context of the NIAC. They clearly knew the conflict existed.
31.Conclusion: The Scorpions were aware of factual circumstances that established the
existence of an armed conflict.
If there are no (further) questions, and with the permission of the Court, this counsel will proceed
with the second issue, individual criminal responsibility.
Count 1: Individual Criminal Responsibility
Your Excellency, I now turn to the final issue: Zara Smith’s individual criminal responsibility.
Conclusion (Overall): President Smith is criminally responsible for ordering the commission of
the war crime of murder under Article 25(3)(b).
Rule (Authority): Ordering requires the perpetrator to have the authority or influence to issue an
instruction that subordinates follow.19
18
ICC, Prosecutor v. Jean-Pierre Bemba Gombo, "Trial Judgement", ICC-01/05-01/08-T, 21 March 2016, para.
146-147. Also see ICTY, Prosecutor v. Naletilić and Martinović ("Tuta and Štela"), "Appeals Judgement",
IT-98-34-A, 3 May 2006, para. 119. Also see ICTY, Prosecutor v. Boškoski and Tarčulovski, "Trial Judgment",
IT-04-82-T, 10 July 2008, para. 295.
19
ICTY, Prosecutor v. Krstić, "Trial Judgment", IT-98-33-T, 2 August 2001, para. 601. This was cited with approval
by the ICTY, Prosecutor v. Stakic, "Trial Judgement", IT-97-24-T, 31 July 2003, para. 445. Confirmed by ICTY,
Prosecutor v. Brđanin, "Trial Judgment", IT-99-36-T, 1 September 2004, para. 270; ICTY, Prosecutor v. Galic,
"Trial Judgement", IT-98-29-T, 5 December 2003, para. 168. The same definition can be found in ICTY, Prosecutor
v. Kordić and Čerkez, "Appeals Judgement", IT-95-14/2-A, 17 December 2004, para. 28; citing ICTY, Prosecutor v.
Kordić and Čerkez, "Trial Judgment", IT-95-14/2-T, 26 February 2001, para. 388; ICTR, Prosecutor v. Semanza,
"Appeals Judgment", ICTR-97-20-A, 20 May 2005, para. 361; ICTY, Prosecutor v. Mrkšić, "Trial Judgment",
IT-95-13/1-T, 27 September 2007, para. 550; ICTR, Prosecutor v. Akayesu, "Trial Judgement", ICTR-96-4-T, 2
Application (Authority): President Smith created the Scorpions, oversaw their operations, and
exercised direct command. Her authority is undisputed.
Rule (Intent): As affirmed in Dubrovnik, intent may be shown where the perpetrator means for
the crime to occur or accepts that it will occur in the ordinary course of events.20
Application (Intent): Smith ordered the Scorpions to “deal with the threat,” knowing the target
was a father at home with his family. Given the lethal nature of the Scorpions, she clearly
accepted that deadly force would be used.
Rule (Awareness That the Crime Was Committed in Execution of Smith’s Order): Ordering
requires awareness of a substantial likelihood that crimes will be committed in executing the
order; knowledge of a low risk is insufficient.21 Intent may be inferred from patterns, including
systematic or brutal conduct.22 Ordering requires an instruction that has a direct and substantial
effect, issued by someone with authority, and the accused must either intend the crime or be
aware of its substantial likelihood. The order need not be explicit or written.23
Application (Awareness That the Crime Was Committed in Execution of Smith’s Order):
Smith held operational authority over the Scorpions on 30 June 2024, and her directive shaped
their conduct, satisfying Karadžić’s requirement of authority and influence. Her instruction to
“deal with the Gomezes,” given to a unit known for executing targets, functioned as an order
with a direct and substantial effect even without explicit wording. The Scorpions’ systematic
brutality aligns with Akayesu, and Smith knew that deploying them with a hostile mandate
September 1998, para. 483; ICTR, Prosecutor v. Zigiranyirazo, "Trial Judgement", ICTR-01-73-T, 18 December
2008, para. 387; citing ICTR, Prosecutor v. Nahimana, Barayagwiza and Ngeze, "Trial Judgment", ICTR-99-52-T, 3
December 2003, para. 481 conferring to ICTR, Prosecutor v. Seromba, "Appeals Judgment", ICTR-200-66-A, 12
March 2008, para. 201, citing ICTR, Prosecutor v. Kamuhanda, "Appeals Judgment", ICTR-99-54A-A, 19
September 2005, para. 75; cf. also ICTR, Prosecutor v. Bagosora et al., "Trial Judgment", ICTR-98-41-T, 18
December 2008, para. 2008.
20
ICTY, Prosecutor v. Pavle Strugar ("Dubrovnik"), "Trial Judgment", IT-01-42-T, 31 January 2005, para. 347.
21
ICTY, Prosecutor v. Blaškić, "Appeals Judgment", IT-95-14-A, 29 July 2004, para. 42.
22
ICTR, Prosecutor v. Akayesu, "Trial Judgment", ICTR-96-4-T, 2 September 1998, para. 478.
23
Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24
March 2016 – Volume I of IV (TC), 24 March 2016, para. 573
created a substantial likelihood of killings, meeting Blaškić. In this context, she either intended
the deaths or, at minimum, foresaw that at least one killing would occur, fulfilling the
Karadžić/Blaškić mens rea standard.
Conclusion (Overall): All requirements of Article 25(3)(b) are satisfied. President Smith
ordered the commission of the war crime of murder.
If there are no further questions, your Excellency, and with the permission of the court, my
co-counsel, Chanju will now proceed with Count 2.
THREE SUB ELEMENTS OF DPH:
1. THRESHOLD OF HARM
In order to reach the required threshold of harm, a specific act must be likely to adversely affect
the military operations or military capacity of a party to an armed conflict or, alternatively, to
inflict death, injury, or destruction on persons or objects protected against direct attack.
2. DIRECT CAUSATION
In order for the requirement of direct causation to be satisfied, there must be a direct causal link
between a specific act and the harm likely to result either from that act, or from a coordinated
military operation of which that act constitutes an integral part.
3. BELLIGERENT NEXUS
In order to meet the requirement of belligerent nexus, an act must be specifically designed to
directly cause the required threshold of harm in support of a party to the conflict and to the
detriment of another
Additional Protocol II Argument
Article 1 of AP II states, in part, that it applies to NIACs taking place “in the territory of a High
Contracting Party between its armed forces and dissident armed forces or other organized armed
groups which, under responsible command, exercise such control over a part of its territory as to
enable them to carry out sustained and concerted military operations and to implement [the]
Protocol.”
the following five conditions can be obtained for the identification of a NIAC to which AP II
applies:
1. A NIAC under the classical conditions of organization and intensity exists.
2. The NIAC is taking place in the territory of a party to AP II.
3. The NIAC is taking place between the territorial state’s armed forces “and dissident armed
forces or other [NSAGs]”.
4. The non-state party is under responsible command.24
5. The non-state party exercises “such control over a part of its territory as to enable [it] to carry
out sustained and concerted military operations and to implement [AP II]”.25
Conclusion
Your Excellencies, AP II applies in addition to Common Article 3 because the FSP exercised the
level of context-dependent territorial control required under Article 1 of Additional Protocol II.
24
“Responsible command” indicates a certain organized structure within the NSAG, even if it does not have a
hierarchical military organization similar to those of regular armed forces. Such a responsible command structure
needs to be able both to impose discipline among the group members and to plan and carry out military operations.
A responsible command permits, in turn, the criteria listed in the fifth condition to be fulfilled. Indeed, given that AP
II contains several obligations that go beyond the basic humanitarian protections of common Article 3, the additional
criteria required for the Protocol’s application offer “a degree of realism” corresponding to the “actual circumstances
in which the parties may reasonably be expected to apply the rules developed in the Protocol, since they have the
minimum infrastructure required therefor”. (ICRC, Commentary on Protocol II of 8 June 1977 additional to the
Geneva Conventions, ICRC, Geneva, 1987, para. 4470: [Link]
25
Of course, the exact amount, type or stability of territorial control by the non-state party is not precisely set out in
AP II and is context-dependent. However, the territory should elude government control. The territory’s geography,
terrain, size, accessibility and population may also be relevant to assessing the level of control of the non-state party.
Rule
Article 1 AP II provides that the Protocol applies to NIACs:
“taking place in the territory of a High Contracting Party between its armed forces
and dissident armed forces or other organized armed groups which, under
responsible command, exercise such control over a part of its territory as to enable
them to carry out sustained and concerted military operations and to implement this
Protocol.”
The ICRC clarifies that:
“the exact amount, type or stability of territorial control by the non-state party is not
precisely set out in AP II and is context-dependent,” and that relevant factors include
“whether the territory eludes government control,” as well as its “geography, terrain,
size, accessibility and population.”
— ICRC, How is the Term ‘Armed Conflict’ Defined in IHL? (ICRC OPINION
PAPER 2024), p. 15–16
First, Cern already operated with political independence. It was “granted autonomous status…
and governed its own internal administrative affairs relatively independent of the federal
government.”26
This longstanding autonomy weakened central government authority in Cern.
Second, the FSP operated with broad civilian alignment. The Seti population “harboured deep
resentment” toward Manustan and questioned their membership in the State.27
By the time hostilities commenced, the FSP enjoyed “broad support among the civilian
population in Cern.”28
Dont mention if not necessary (Third, the FSP demonstrated functional territorial control.
Despite repeated deployments of police, SWAT, and the MAF, the State could not prevent:
26
Moot Problem, ¶7
27
Moot Problem, ¶7–8
28
Moot Problem, ¶15
● A 60-member attack on Victoria Barracks killing 150 soldiers;
● A multi-day takeover of the Bleuland Embassy;
● An 18-hour siege on Lubattuk Barracks;
● A coordinated bombing campaign across April 2024.)29
The State’s inability to stop the FSP’s freedom of movement, their use of heavy weapons, their
organized cells, and their repeated escape from government forces shows the group’s operational
dominance from within Cern.
Your excellencies, when the requirement of territorial control is properly understood as flexible
and context-dependent, it is clear that Cern effectively eluded government authority and served
as the FSP’s operational base. The FSP possessed the capacity and freedom needed to sustain
repeated, large-scale attacks across several months.
Accordingly, AP II applies alongside Common Article 3.
ROY’S STATUS ARGUMENT
DIRECT PARTICIPATION IN HOSTILITIES AS A SPECIFIC ACT
29
Moot Problem, ¶14(a)–(f)
The notion of direct participation in hostilities refers to specific acts carried out by individuals as
part of the conduct of hostilities between parties to an armed conflict.
In treaty ihl, individual conduct that constitutes part of the hostilities is described as direct
participation in hostilities, regardless of whether the individual is a civilian or a member of the
armed forces.
The notion of direct participation in hostilities does not refer to a person’s status, function, or
affiliation, but to his or her engagement in specific hostile acts.30
JUST IN CASE
Where civilians engage in hostile acts on a persistently recurrent basis, it may be tempting to
regard not only each hostile act as direct participation in hostilities, but even their continued
intent to carry out unspecified hostile acts in the future. 89 however, any extension of the concept
of direct participation in hostilities beyond specific acts would blur the distinction made in ihl
between temporary, activity-based loss of protection (due to direct participation in hostilities),
and continuous, status or function- based loss of protection (due to combatant status or
continuous combat function). 90 in practice, confusing the distinct regimes by which ihl governs
the loss of protection for civilians and for members of state armed forces or organized armed
groups would provoke insurmountable evidentiary problems. Those conducting hostilities
already face the difficult task of distinguishing between civilians who are and civilians who are
not engaged in a specific hostile act (direct participation in hostilities), and distinguishing both of
these from members of organized armed groups (continuous combat function) and state armed
forces. in operational reality, it would be impossible to determine with a sufficient degree of
reliability whether civilians not currently preparing or executing a hostile act have previously
done so on a persistently recurrent basis and whether they have the continued intent to do so
again. Basing continuous loss of protection on such speculative criteria would inevitably result in
erroneous or arbitrary attacks against civilians, thus undermining their protection which is at the
30
This was the prevailing view also during the expert meetings (see report Dph 2004, pp. 24 f.; report Dph 2005, pp.
17-24; report Dph 2006, pp. 37 f.; report Dph 2008, pp. 33 ff.)
heart of ihl. consequently, in accordance with the object and purpose of ihl, the concept of direct
participation in hostilities must be interpreted as restricted to specific hostile acts.92