Strikes on others confirmed to be civilians who are directly participating in hostilities or having a continuous combat function at the time of the follow-up strike could be lawful if the other international humanitarian law rules are respected.
In addition to targeting on the basis of continuous combat function, individual civilians will lose their protection from direct attack based on conduct when, and only for such time as, they engage in specific acts of direct participation.
Those who advocate this position suggest that in asymmetrical armed conflict a requirement for solid intelligence demonstrating a continuous combat function, or distinguishing between roles played by adherents to an armed group, is unrealistic and impracticable.
If the criterion of continuous combat function is not met, then an individual who is otherwise affiliated with an armed group is to be regarded as having protected civilian status and may be targeted with deadly force only if and for so long as he or she is directly participating in hostilities.
Thus, a drone strike carried out against an individual with a continuous combat function in an organized armed group with which the attacking State is engaged in a non-international armed conflict will be consistent with the principle of distinction in international humanitarian law, provided that the other rules of international humanitarian law are also observed.
ICRC takes the view that such individuals can be regarded as members of an armed group, such that they may be targeted for lethal operations at any time, only if they have assumed a continuous combat function within the group.
The legal test remains whether there is sufficient evidence that a person is targetable under international humanitarian law, as described above, by virtue of having a continuous combat function or directly participating in hostilities, and if there is doubt States must refrain from targeting.
The majority of those killed is believed to have been individuals with a "continuous combat function" in Yemeni internal armed conflicts, and therefore to have been legitimate military targets under the principles of international humanitarian law.
While it may be assumed that the list includes individuals identified by intelligence as senior leaders of Al-Qaida or an associated group, who would thus be deemed to have a continuous combat function, it is far from clear that the list is so confined.
Lethal targeting directed at senior operational leaders of Al-Qaida and those who pose an imminent threat of violent attack would appear to satisfy the ICRC tests of continuous combat function and direct participation, respectively.
Assuming that a non-international armed conflict exists, does the test of "continuous combat function", as elaborated by the International Committee of the Red Cross for determining whether a person is a "member" of an armed group (such that that person may be targeted with lethal force at any time) reflect customary international law?
The International Committee of the Red Cross Guidance on direct participation in hostilities identifies what amounts to a new category of participants, those with a so-called continuous combat function.
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