The reference to Charming Betsy is far from the brand. The question is whether a concept of art, such as hostilities, which is not defined in the text of the law, carries its accepted meaning as a concept of art. The answer is yes. “When congress borrows art concepts from which the legal tradition and meaning of centuries of practice are accumulated, it probably knows and adopts the accumulation of ideas associated with each word borrowed from the learning body from which it has been derived, and the meaning that its use will convey to the legal mind, unless instructed otherwise.” Morissette v. United States, 343 U.S. 246, 250 (1952). The WPR text itself gives no indication that “hostilities” has any legal meaning other than its meaning as an artistic term, either in the DCA, which dates back to the Lieber Code, or as used elsewhere in the United States Code. This outcome document, the result of several years of expert meetings on direct participation in hostilities, has been instrumental in clarifying the contours of the concept and advancing the debate. Contains analyses and recommendations on the concept of direct civilian participation in hostilities and the modalities related to loss of protection. Missiles and bombs are allowed to be used in hostilities, as the intensity of the fighting supports the presumption that killing without warning or attempting to capture is justified. In addition, the law tolerates the involuntary death of civilians during hostilities, provided that the number of such deaths is not disproportionate to the value of the military target. My future colleague at Notre Dame, Mary Ellen O`Connell, joined the fight and criticized Harold Koh`s crab-like definition of hostilities.

Here`s a taste: Harold Koh, U.S. legal counsel The State Department tried on June 15 to convince Congress that the “limited nature” of U.S. military operations in Libya is not “hostility” within the meaning of the war powers resolution and therefore did not require congressional approval. Examines the direct involvement of hostilities related to the definition of civilians and provides useful insight into key issues and sources. It draws heavily on the 2009 interpretative guidelines of the International Committee of the Red Cross and highlights the limitation of the concept of direct participation in relation to the legal status of non-State armed groups (pp. 59-66). A systematic analysis of direct participation in hostilities and their evolution to date. The author presents a set of proposed principles to inform individuals and states about the importance and impact of direct participation. I am curious to know if there are any international lawyers who publicly defend the Obama administration`s definition of “hostilities” for the purposes of the war powers resolution. I haven`t seen any so far, so any clues would be greatly appreciated. Again, this is not really my field, but I`m not sure how the interpretation of “hostilities” like Harold, or more generally the interpretation of “hostilities” to mean different things in the WPR and in international law, would conflict with the Charming Betsy doctrine in this case. Charming Betsy says an ambiguous law should not be interpreted as violating international law.

Giving Harold`s legal definition of “hostilities” would not lead the United States to violate its international obligations (as long as there is armed conflict under international law), although the definition may be different from an international definition. The violation occurs only if, as Mary Ellen appears to be, it is assumed that the legal question and the question of international law must be answered immediately. But I`ve always understood Charming Betsy as a principle of avoidance, not as a principle that affirms consistency for itself in the absence of Congressional intent. In other words, international law has little to say about the circumstances in which the president can use troops for combat operations that are otherwise legal under international law, and so I would have considered the Charming Betsy doctrine inapplicable (as it exists). Read more » Answer. I agree that the ICRC`s definition is technically relevant to the issue under international law, but according to the relevant and venerable jurisprudence of the Supreme Court, the word “hostilities” has been interpreted in reference to international law and also implicitly in accordance with international law in a way that contrasts sharply with Harold`s advice to the President, moreover, according to the venerable jurisprudence of the Supreme Court, federal legislation should, as far as possible, be interpreted in accordance with international law. The charming Betsy (U.S. 1804). But the United States would do better to be involved in hostilities, otherwise our forces will be involved in unlawful killings. The U.S. has used manned and unmanned aircraft to fire missiles and drop bombs – the type of weapons allowed only for use in armed conflict. Provides an in-depth investigation into the direct involvement of civilians in hostilities and as defined in treaties and State practice, jurisprudence and soft law.

Provides an analysis of how international law might evolve to deal with civil involvement in hostilities. An expert overview of direct participation in the context of the loss of civil protection, which deals with the temporal factor and the concrete actions that may constitute direct participation in hostilities (pp. 146-152). Contemporary armed conflicts involve not only fighting and military clashes between regular armed forces and organized armed groups, but also the participation of civilians in hostilities in various ways. The concept of direct participation in hostilities in a situation of armed conflict has become an important and sometimes controversial issue in international humanitarian law. It goes to the heart of the principle of distinction, since civilians who take a direct part in hostilities lose their protection against attack, grant civilians under the laws of armed conflict if they take an active part in hostilities. The fact that civilians would no longer enjoy such immunity from attack once they participated in hostilities is not disputed in itself; Each of the most important treaties of international humanitarian law establishes such a rule. The protection provided in common article 3 of the Geneva Conventions of 1949 applies only to “persons who do not take an active part in hostilities”, while Additional Protocol I to Article 51(3) provides that civilians lose some protection against the effects of hostilities “at the time when they take a direct part in hostilities”. Similarly, the guarantees afforded to civilians in Part IV of Additional Protocol II apply to persons “who are not taking a direct part in hostilities or who have ceased to participate in them”. The direct participation of civilians in hostilities is not illegal under international law, although civilians not only lose their civil immunity, but can also be prosecuted under national law for such acts.