The ‘direct participation’ exception to the principle of distinction, found in Article 51(3) of Protocol I and Article 13(2) of Protocol II, embodies a long-recognized concept in the laws governing armed conflict. For centuries the broad notion that humanity demands the protection only of those citizens who are harmless has found expression in the rules and norms relating to war. This article traces the historical factors and trends which influenced the development of the ‘direct participation’ exception in its current form, revealing a tendency towards ‘humanizing’ the law in favour of civilians, notwithstanding their increased military value.

This article examines whether and how non-State armed groups, as distinct entities, might be required to provide reparations for their violations of international humanitarian law. It shows that the possibility of holding armed groups to reparations is marked by uncertainty in international law. This complex question calls for clarification. In building on these observations, the article explores how the duty to provide reparations by armed groups could be operationalized as a matter of lex ferenda. This exercise involves examining how such a duty could be conceptualized and put into practice. From this discussion, a multi-faceted proposal emerges, which draws upon existing approaches in international law and responds to the particular challenges presented by armed groups. The article ends by considering the implications of the proposal.

Questions of the applicability and application of international humanitarian law (IHL) to multinational forces are of central interest to the North Atlantic Treaty Organisation (NATO, also referred to as ‘the Alliance’ or ‘the Organisation’). Far from being incidental, multinational military coordination is the Organisation's raison d’être and the driving concept behind its methods, history and operations. Since the end of the Cold War, it has conducted a series of major multinational military operations – in and around the Balkans, Afghanistan, Libya and elsewhere – in which questions of the application of IHL have inevitably arisen.

Advances in mobile phone technology and social media have created a world where the volume of information generated and shared is outpacing the ability of humans to review and use that data. Machine learning (ML) models and “big data” analytical tools have the power to ease that burden by making sense of this information and providing insights that might not otherwise exist. In the context of international criminal and human rights law, ML is being used for a variety of purposes, including to uncover mass graves in Mexico, find evidence of homes and schools destroyed in Darfur, detect fake videos and doctored evidence, predict the outcomes of judicial hearings at the European Court of Human Rights, and gather evidence of war crimes in Syria. ML models are also increasingly being incorporated by States into weapon systems in order to better enable targeting systems to distinguish between civilians, allied soldiers and enemy combatants or even inform decision-making for military attacks.

The same technology, however, also comes with significant risks. ML models and big data analytics are highly susceptible to common human biases. As a result of these biases, ML models have the potential to reinforce and even accelerate existing racial, political or gender inequalities, and can also paint a misleading and distorted picture of the facts on the ground. This article discusses how common human biases can impact ML models and big data analytics, and examines what legal implications these biases can have under international criminal law and international humanitarian law.

Last February we devoted an article to a book by Jacques Moreillon, ICRC delegate-general, which had been published by the Henry Dunant Institute. We give below an English version of one chapter (translated by us) of the book which, we would state, was submitted as a thesis to the Graduate Institute of International Studies, Geneva, under the sole responsibility of the author.

The law regulating the use of force at sea has long been due fora reevaluation in the light of developments in methods and means of warfare at sea and the fact that major changes have taken place in other branches of international law of direct relevance to this issue. This need was reflected in Resolution VII of the 25th International Conference of the Red Cross, which noted that “some areas of international humanitarian law relating to sea warfare are in need of reaffirmation and clarification on the basis of existing fundamental principles of international humanitarian law” and therefore appealed to “governments to co-ordinate their efforts in appropriate fora in order to review the necessity and the possibility of updating the relevant texts of international humanitarian law relating to sea warfare”.

Source de vie et de bienfaits, symbole de fécondité et de pureté, l'eau est aussi porteuse de craintes, de risques et de dangers et elle est objet de convoitises et de conflits. Ses multiples fonctions, aussi nécessaires les unes que les autres, font d'elle une ressource vitale dont l'homme a toujours essayé de réglementer l'usage et la gestion. Mais contrairement au droit applicable en temps de paix, comme en témoignent les us et coutumes des sociétés les plus anciennes ou encore les instruments juridiques internes et internationaux des temps modernes, le droit des conflits armés n'a consacré à l'eau — expressément et tardivement — que certaines dispositions. Cela est moins un reproche qu'un constat et pourrait s'expliquer par le fait que l'eau est indispensable en toutes circonstances. Abstraction faite des conséquences des catastrophes naturelles où l'eau peut être menaçante et menacée, certaines activités poursuivies par l'homme peuvent engendrer des effets néfastes et dommageables pour l'environnement et les moyens de survie des populations, dont l'eau est l'élément de base. Il suffit d'évoquer les effets de la pollution ou des conflits armés. L'expérience des guerres contemporaines nous apprend, hélas!, que la population civile et les biens de caractère civil sont exposés aux opérations militaires et que, dans certains cas, la soif peut se révéler plus meurtrière que les armes. Seul le respect des règies universellement admises permettra d'y remédier, et nous insisterons, dans les développements qui suivent, sur les dispositions pertinentes du droit humanitaire applicables à la protection de l'eau en temps de guerre (I). Ecartant d'emblée certaines considérations relevant du jus ad bellum (l'eau, source de conflits) ou se rapportant à des situations «hydro-conflictuelles», nous aborderons quelques aspects pratiques en soulignant le rôle du CICR et des autres composantes du Mouvement international de la Croix-Rouge et du Croissant-Rouge (II) avant de formuler quelques remarques d'ensemble (III).

Starting with the usual functions of truth and reconciliation commissions, the article outlines the possibilities for and limits of cooperation by the ICRC with the varying types of commissions. The question as to the degree of such cooperation has mostly been resolved on similar lines to the privilege of non-disclosure in international criminal trials. Within the parameters of its principles of neutrality and impartiality and the operative rule of confidentiality established to enable access to victims of armed conflicts and internal violence, the ICRC has, however, cooperated with such commissions. The author explains some criteria determining the appropriate degree of cooperation and shows some forms it can take. He finally discusses the ICRC's policy vis-à-vis the amnesty provisions of truth and reconciliation commissions, which often preclude the prosecution of persons involved in offences committed during periods of violence.

After nearly 130 years of existence, the International Red Cross and Red Crescent Movement continues to play a unique and important role in the field of human relations.

Its origin may be traced to the impression made on Henry Dunant, a chance witness at the scene, by the disastrous lack of medical care at the battle of Solferino in 1859 and the compassionate response aroused in the people of Lombardy by the plight of the wounded. The Movement has since gained importance and expanded to such a degree that it is now an irreplaceable institution made up of dedicated people all over the world.

The International Review of the Red Cross is pleased to publish this essay by Professor Vangah Francis Wodie on the perception of humanitarian law by African states, and their contribution to this law's development in view of the problems confronting them. The essay reflects the personal views of the author, who gives special attention to the legal and humanitarian problems facing many states as a result of the influx of refugees and the use of mercenaries in some conflicts.

Water, life-giving and bounteous, the symbol of fertility and purity, is also a source of fear, risk and danger, of covetousness and conflict. Serving many purposes, all equally necessary, it constitutes a vital resource of which man has always tried to regulate the use and management. But unlike peacetime legislation, reflected in the customs and practices of the most ancient societies as well as in the domestic and international legal instruments of modern times, the law of armed conflicts has devoted only few of its provisions expressly — and belatedly — to water. This is not so much a criticism as an observation and may be explained by the fact that water is indispensable in all circumstances. Apart from the consequences of natural disasters, when water may be either threatening or threatened, some human activities can harm the environment and impair the population's means of survival, of which water is the most essential. The effects of pollution or armed conflict are a case in point. The experience of modern warfare has shown, alas, that the civilian population and civilian objects are exposed to military operations and that in some cases thirst can prove to be more deadly than weapons. The only remedy lies in respect for the universally recognized rules, and in the following article attention will be drawn to the provisions of humanitarian law which apply to the protection of water in wartime (I).

Transitional justice aims at once to restore victims' dignity, build confidence between warring groups and foster the institutional changes needed to bring about a new relationship within the population, in order to usher in the rule of law without endorsing practices that amount to total or partial impunity. In situations of post-conflict, however, governments are also faced with other pressing needs, such as disarming fighting forces, improving civilian security, compensating victims and relaunching the economy of a society in ruins. This article explores the relationship between these needs and transitional justice mechanisms, and critically evaluates their influence on the forms justice has taken in post-conflict situations.

This article summarizes a country study on Iraq conducted by the Humanitarian Agenda: 2015 project of the Feinstein International Center, Tufts University, between October 2006 and May 2007.* Based on a sample survey of perceptions of humanitarian action among Iraqis at the community level and among humanitarian agencies in the region, the study focuses on what Iraqis and aid workers believe to be true about the way in which the humanitarian apparatus has functioned or malfunctioned in Iraq, and why. Its findings confirm both the strength of the humanitarian ethos in Iraq and the operational value of principled humanitarianism, but call attention to significant gaps at ground level between ethos and practice.

In the post-9/11 era, the label “asymmetric wars” has often been used to question the relevance of certain aspects of international humanitarian law (IHL); to push for redefining the combatant/civilian distinction; and to try to reverse accepted norms such as the bans on torture and assassination. In this piece, we focused on legal and policy discussions in the United States and Israel because they better illustrate the dynamics of State-led “norm entrepreneurship”, or the attempt to propose opposing or modified norms as a revision of IHL. We argue that although these developments are to be taken seriously, they have not weakened the normative power of IHL or made it passé. On the contrary, they have made it more relevant than ever. IHL is not just a complex (and increasingly sophisticated) branch of law detached from reality. Rather, it is the embodiment of widely shared principles of morality and ethics, and stands as a normative “guardian” against processes of moral disengagement that make torture and the acceptance of civilian deaths more palatable.

The implementation of international humanitarian law applicable in armed conflicts must be considered in the light of three basic problems.

First, in time of peace no one wants to think about the kind of situation where this body of law is put into practice. Nor is it easy to foster enthusiasm for legal rules which are beyond people's personal experience. But unless certain efforts are made and steps taken in peacetime, it cannot be expected that these rules will be implemented in time of crisis or war.

El derecho internacional humanitario es considerado cada vez más como parte del derecho de los derechos humanos aplicable en los conflictos armados. Se puede seguir el rastro de esta tendencia hasta la Conferencia Internacional de Derechos Humanos de las Naciones Unidas, celebrada en Teherán en 1968, que no solo impulsó el desarrollo del derecho humanitario en sí mismo, sino que marcó el inicio de un mayor uso del derecho humanitario por las Naciones Unidas al examinar la situación de los derechos humanos en determinados países o en el marco de sus estudios temáticos. La mayor conciencia de la importancia del derecho humanitario para la protección de las personas en los conflictos armados, junto con la creciente referenda a los derechos humanos en los asuntos internacionales, hace que las dos ramas del derecho tengan ahora mucha más relevancia internacional y que tanto las organizaciones internacionales como las no gubernamentales recurran a ambas con regularidad.

Sin embargo, dado que el derecho de los derechos humanos y el derecho humanitario tienen orígenes históricos completamente diferentes, su codificación ha seguido hasta hace muy poco caminos completamente distintos. Este documento tiene por objeto examinar la ‘filosofía’ de estas dos ramas del derecho a la luz de sus orígenes; cómo coinciden, con todo, en muchos aspectos esenciales; de qué manera han influido una en la otra últimamente y, por último, cómo sus similitudes y diferencias podrían determinar su uso en el futuro.

What does Hinduism have to say about the rules of armed conflict? How might Hinduism enrich the modern global discourse on international humanitarian law (IHL)? What convergences might be found, and what areas of divergence? This paper examines and contextualizes the rules of armed conflict advocated in classical Hindu texts, especially in the epic Mahābhārata, where important norms of Hinduism are established. It also examines the other major epic, the Rāmāyaṇa, and the Dharmaśāstras (Law Codes), as well as the Arthaśāstra, which takes an alternative (realpolitik) approach. This paper focuses on conduct during armed conflict (jus in bello), now synonymous for many with IHL, rather than considerations leading up to war (jus ad bellum). The paper seeks to illuminate both convergences and divergences with IHL and highlight particular Hindu approaches on the righteous (dharmic) application of violence. Like IHL, classical Hinduism values (1) proportionality of force during armed engagement; (2) the minimization of human suffering during combat; (3) care for survivors of war; (4) immunity towards non-combatants, especially civilians; and (5) balancing military necessity with humanity. With respect to divergences, classical Hinduism extols non-violence in ways that critique even the warrior's duty to engage in righteous war (dharma yuddha). In contrast to IHL, the Hindu epics have some different limitations; for instance, they limit the right to combat to a particular caste, the kṣatriyas, though this concept could be modernized to mean uniformed personnel of the State. The epics also disavow certain practices that are legal under IHL, such as ambushes and surprise attacks against legitimate targets. The Hindu proportionality provision goes beyond IHL by prescribing that only warriors of the same type should fight. With its many deeply ethical considerations, Hinduism enriches modern IHL through its heightened emphasis on fair and humane conduct in battle and its call towards compassion on behalf of both combatants and non-combatants.

The International Fact-Finding Commission mentioned by Article 90 of Additional Protocol I is the only new measure introduced by the Diplomatic Conference of 1914-1911 intended to strengthen implementation of international humanitarian law. (The word ‘humanitarian’ was added to the title by the Commission itself, in order to better express the Commission's limited jurisdiction.) The Commission was established and its rules of procedure were adopted, but never since 1977 has any party to an armed conflict or any other State ever asked the Commission to exercise its activity in a concrete situation. The author (a member of the Commission) examines the reasons of this apparent failure and suggests new ways of understanding Article 90. He has no doubts about the Commission's usefulness, and he calls upon States and the other members of the international community – in particular the United Nations – to accept the Commission as a tool for strengthening respect for international humanitarian law.