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Thermobaric weapons cause damage and harm through overpressure and thermal effects, but secondary harm may also occur due to fragmentation, the consumption and depletion of ambient oxygen, and the release of toxic gases and smoke. Several international instruments prohibit or regulate weapons that generate asphyxiating or toxic gases, poison or poisoned weapons, chemical weapons, and weapons primarily designed to be incendiary. Thermobaric weapons are, however, primarily designed for blast and are not specifically covered by, or excluded from, the application of these instruments. The general customary law principles of international humanitarian law that determine the legality of the use of all weapons, including thermobaric weapons, prohibit causing superfluous injury and unnecessary suffering, and the use of indiscriminate weapons. Thermobaric weapons cause severe suffering but will not be rendered unlawful merely because of this effect. These weapons are also not automatically and inherently indiscriminate when used in their normal or designed circumstances. The use of thermobaric weapons, when directed at a military objective, while considering all feasible precautions to protect civilians and civilian objects and the principle of proportionality, will, as a result, be lawful in most circumstances. However, the use of thermobaric weapons should, in a similar manner to heavy explosive weapons, be avoided in urban or populated areas.

The third edition of the United States (US) Department of Defense Law of War Manual , updated in December 2016 (2015 DoD Manual) states that “[u]nder customary international law, no legal presumption of civilian status exists for persons or objects”. The 2015 Manual received general support from military circles, but some experts believed that rejecting the customary international law (CIL) status of the presumption of civilian status in instances of doubt was an apparent mistake or important error. The 2023 US DoD Law of War Manual (2023 Manual) has now been promulgated with a revision to the doubt rule. Doubt regarding the character of persons or the nature of dedicated civilian objects results in a “presumption” of civilian status “unless the information available indicates that the persons or objects are military objectives”. The 2023 Manual attracted criticism, with some experts, especially those with military experience, arguing that it is counterproductive to incorporate exponentially legalistic or complex, nuanced judgements about status determinations, presumptions and the sufficiency of rebuttal evidence in practical matters such as targeting decisions. The article evaluates the substance and implications of the revision to the doubt rule in the 2023 Manual. The article further considers whether the doubt rule regarding the civilian character of persons and the nature of certain objects has acquired customary international humanitarian law status. Ultimately, the article concludes that is not realistic to include a presumption for application in targeting decisions due to the complexities of applying legalistic concepts during armed conflict.

This article explores the reasoning of the Grahamstown High Court and the Supreme Court of Appeal concerning the misconduct of a legal practitioner due to his non-compliance with the formalities for a valid contingency fees agreement. The Courts expressed concern at the “embedded” and “endemic” nature of misconduct by legal practitioners. Therefore, the Legal Practice Council and the Courts must deal with misconduct by legal practitioners consistently, predictably, and efficiently. The reasoning of the High Court and Supreme Court of Appeal reveals some similarities, but there are also apparent differences in tone and the sanctions imposed. The High Court found that an appropriate sanction was to suspend the legal practitioner. However, the Supreme Court of Appeal reasoned that the suspension from practice in isolation would almost certainly not transform a legal practitioner into a fit and proper person to practice in the future. The SCA thus determined that the name of the offending practitioner must be struck from the Roll of legal practitioners.

SummaryThis article explores the reasoning of the Grahamstown High Court and the Supreme Court of Appeal concerning the misconduct of a legal practitioner due to his non-compliance with the formalities for a valid contingency fees agreement. The Courts expressed concern at the “embedded” and “endemic” nature of misconduct by legal practitioners. Therefore, the Legal Practice Council and the Courts must deal with misconduct by legal practitioners consistently, predictably, and efficiently. The reasoning of the High Court and Supreme Court of Appeal reveals some similarities, but there are also apparent differences in tone and the sanctions imposed. The High Court found that an appropriate sanction was to suspend the legal practitioner. However, the Supreme Court of Appeal reasoned that the suspension from practice in isolation would almost certainly not transform a legal practitioner into a fit and proper person to practice in the future. The SCA thus determined that the name of the offending practitioner must be struck from the Roll of legal practitioners.

The regulatory structure created by the Law of Armed Conflict (“LOAC”) incorporates terms and concepts that, on initial scrutiny, appear uncomplicated but their meaning and practical application has proven to be highly contested and ambiguous. The notion of ‘Civilian Direct Participation in Hostilities’ (“C-DPH”), found, arguably, in Common Article 3 of the Geneva Conventions of 1949 (“GC’s”) and explicitly in Additional Protocol I of 1977 (“API”), Article 51(3) and Additional Protocol II (“APII”), Article 13(3), is one such concept.C-DPH is a cornerstone concept in LOAC on the conduct of hostilities and has attained the status of customary international law. This is based on the assumption that, on a conceptual level, civilians should be protected from intentional attack unless, and ‘for such time’, as they ‘directly participate in hostilities’. However, despite the serious practical and legal consequences resulting from C-DPH, neither the GC’s nor the AP’s define the concept, nor do they outline the actions that amount to C-DPH.C-DPH in asymmetrical hostilities, as a result, currently elicits more disagreement than assent and its novelty creates confusion due to analytical limitations. A universal, comprehensive and practical definition of C-DPH will be useful as LOAC rights can only be comprehensively understood when the meaning and content thereof is defined and clear. The ICRC has produced an Interpretative Guidance on C-DPH but could not publish the document by consent with LOAC experts. There is thus scope for the development of LOAC relevant to C-DPH based on a holistic interpretation thereof, which should include reference to the relevant LOAC instruments, customary LOAC, State practice, judicial reasoning, expert analysis and reference to human rights on the interpretation of C-DPH.