C. Paulussen misleading but “join[ing] a party engaged in an armed conflict” does not necessarily mean being involved in direct participation in hostilities, which entails carrying out “specific acts […] as part of the conduct of hostilities between parties to an armed conflict”).40 Also “[c]ivilians who directly participate in hostilities […] remain protected civilians when they fall into the hands of the enemy, provided they fulfil the nationality criteria set out in Article 4”.41 It is also interesting to see where nationality is not mentioned in the different texts. For instance, in paragraph 1 of Article 3 common to the four Geneva Conventions – and this provision is of course of particular interest to the phenomenon of foreign fighters, as most of these fighters are active in noninternational armed conflicts – nationality is not listed as a prohibited ground for adverse distinction among protected persons: Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. The question is of course whether nationality would fall under the concept of “other similar criteria”? According to the 2016 Commentary to common Article 3, that is indeed the case. Although the Working Party preparing the draft of the final text of common Article 3 at the 1949 Diplomatic Conference […] decided not to include nationality as a criterion, given that it might be perfectly legal for a government to treat insurgents who are its own nationals differently in an adverse sense from foreigners taking part in a civil war [for instance “foreign fighters”],42 this different treatment “has no bearing on common Article 3’s imperative of humane treatment without any adverse distinction.”43 Hence, although “[i]n the domestic judicial assessment of a non-international armed conflict, nationality may be regarded as an aggravating or extenuating circumstance, […] it cannot be regarded as affecting in any way the humanitarian law obligation of humane treatment [emphasis added]”.44 To conclude this part, the measure of deprivation of nationality or citizenship stripping cannot be found in international humanitarian law and the concept of nationality is irrelevant when it comes to fundamental guarantees of humane treatment under international humanitarian law. Indeed, in theory states 40 “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Adopted by the Assembly of the International Committee of the Red Cross on 26 February 2009”, International Review of the Red Cross, Vol. 90, No. 872 (December 2008), available at: https://www.icrc.org/en/doc/assets/files/other/irrc-872-reports-documents.pdf, p. 995. 41 S. Krähenmann, above note 1, p. 18. 42 ICRC, Commentary of 2016. Article 3: Conflicts not of an International Character, available at: https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=59F6CDFA490736 C1C1257F7D004BA0EC, para. 571. 43 Ibid., para 572. 44 Ibid. 614