International Humanitarian Law

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Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities

On Tuesday (June 2), the ICRC published a document setting out its "Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law."  The purpose of the document is to help clarify and to assist in the interpretation of a principle which is well accepted in international humanitarian law (IHL) but subject to much ambiguity. This is the principle that civilians are to be immune from direct attacks by the parties to an armed conflict unless the civilian takes a direct part in hostilities. The principle is codified in Article 51(3) of Additional Protocol I (1977) to the Geneva Conventions (1949): "Civilians shall enjoy the protection [from direct attack] . . ., unless and for such time as they take a direct part in hostilities." The Israeli Supreme Court held in Targeted Killings Case (2005) that this provision in its entirety is a reflection of customary international law (para. 30).  The principle regarding immunity of civilians from attack except in cases of direct participation in hostilities is a key component of the principle of distinction - which requires belligerents…

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ICRC on Direct Participation in Hostilities

The ICRC has just published its interpretative guidance on the notion of direct participation in hostilities. This is a product of many years’ work and several consultations with eminent experts – though of course many experts would not agree on all of the ICRC’s conclusions, which are purely the organization’s own. At any rate, since this is one…

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US Appeals Court holds that Former Foreign Officials Entitled to Immunity in Civil Suit alleging War Crimes

The Second Circuit of the US Court of Appeals has recently (April 16, 09) held  in Matar v. Dichter that the former head of the Israeli General Security Service is immune in a civil suit brought under the US Aliens Tort Claims Act (28 USC  § 1350) alleging war crimes and extrajudicial killing. The suit relates to Dichter's participation…

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US District Court Rules on Guantanamo Detention Standard

A US District Court has just released the first judicial opinion on the detention standard applicable to detainees in Guantanamo (formerly known as 'enemy combatants'), subsequent to the filing of the Obama administration's brief that we have previously extensively discussed. Judge Walton's opinion shows a valiant effort to grapple with the applicable international humanitarian law. Regrettably, however, I…

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ICRC Report to CIA: Treatment of High Value Detainees Amounted to Disappearance and Torture

Nehal Bhuta is Assistant Professor of Law at the University of Toronto and a member of the EJIL’s Scientific Advisory Board. . He has worked with the International Justice Program of Human Rights Watch and was a consultant with the International Center for Transitional Justice in New York. In 2008/2009 he is a Hauser Research Scholar…

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