The 2016 Henry Dunant Research Prize is awarded to Ms Sabrina Henry, student of the LLM in International Humanitarian Law and Human Rights at the Geneva Academy, for her paper entitled: «Transposition de la notion de « fonction de combat continue » dans les conflits armés internationaux et son application aux forces armées gouvernementales dans les conflits armés non internationaux ». This work offers a critical analysis of the concepts of “continuous combat function” and “direct participation in hostilities” and puts forward proposals to extend t he scope of the first of these notions. The arguments advanced, innovative, accessible and nuanced, demonstrate a thorough understanding of international humanitarian law, which led the jury, composed of members of the Henry Dunant Prize Foundation, the Geneva Academy and the International Committee of the Red Cross in awarding the prize to Ms Henry for her work, faithful in spirit to the values promoted by Henry Dunant.
The paper focus on the extension of the concept of «continuous combat function» to different types of actors intervening in an international armed conflict and to State armed forces in the context of a non-international armed conflict. This concept developed by the International Committee of the Red Cross was intended to apply exclusively in the context of non-international armed conflicts, therefore this paper analyse the practicality of such transposition.
In the first chapter, the author foresees the application of the «continuous combat function» to different actors in an international armed conflict. This analysis is undertaken on the basis of three scenarios. Indeed, the extension of the concept of «continuous combat function» is examined through irregular’s members as defined in Article 4(A)(2) of the Geneva Convention III, drone operators of the Central Intelligence Agency and individuals engaged by private military and security companies. In addition to demonstrating the necessity to extend this concept in international armed conflicts, the paper demonstrates that this possibility is somehow foreseen by the International Committee of the Red Cross for some actors in their Interpretative Guidance on the notion of direct participation in hostilities under international humanitarian law.
The second chapter supports the transposition of the notion of «continuous combat function» to State armed forces who are party to a non-international armed conflict. This paper proposes that the notion of State armed forces should be interpreted differently in a non-international armed conflict as the nature of the parties involved differs fundamentally in comparison to international armed conflict. It demonstrates that a different interpretation of the notion of “State armed forces” in non-international armed conflicts can be useful in order to restore the imbalance created between State armed forces and members of armed groups. Indeed, in an non-international armed conflict all members of State armed forces are considered as legitimate targets including for example, a cook. The equivalent is not true for members of armed groups as only the military branch of such a group are considered as legitimate targets under the concept of continuous combat function. Therefore this paper proposes that the concept of continuous combat function should be used in order to determine who is a legitimate target in the State armed forces under international humanitarian law.
This paper demonstrates that the complexity of contemporary conflicts necessitates an adaptation of the existing law. Therefore, this article proposes that in order to take into account the nature of the actors involved in today’s conflicts the concept of «continuous combat function» should be extended to other categories of actors.
Sabrina Henry is currently the Legal and Policy Officer with the Canadian Red Cross and International Committee of the Red Cross, Canadian Delegation. Prior to that, Ms. Henry was an Associate in the Legal Division of the International Committee of the Red Cross. Ms. Henry holds a bachelor degree in International Relations and Public Affairs, a master degree in International and Transnational law, as well as an LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights.