The past as prologue: the development of the ‘direct participation’ exception to civilian immunity

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.