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International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict, and which are applicable to individuals even if they do not fall into the categories of specifically protected persons under the 1949 Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific types of conduct against persons, such as murder, cruel treatment, torture and sexual violence, or against property, such as pillaging. However, it is traditionally held that entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or must no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This study argues in favour of breaking with these two requirements, in light of the existing ICC case law. The study is divided into two parts, with each part devoted to one requirement and made the object of a specific paper. The two papers follow the same structure. They start with general observations on the requirement concerned, examine the relevant ICC case law and put forward several arguments in favour of an extensive approach to the personal scope of the fundamental guarantees. The first paper, which is published in this issue, deals with the status requirement. It especially delves into the ICC decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocates for the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments rely on IHL provisions protecting specific persons, on the potential for humanizing IHL on the matter and on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which will be published in a coming issue, deals with the control requirement. It examines several ICC cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees (mainly those whose application or constitutive elements do not imply any physical control over the concerned persons or properties) may apply in the conduct of hostilities.

Traditionally, international humanitarian law is considered to be applicable only to the relationship between different parties of an armed conflict, while domestic law and international human rights law address situations of intra-party conduct, i.e., conduct involving members of the same party only. In the recent case law of the International Criminal Court, however, intra-party offences against children used as child soldiers have been treated as war crimes. Various Chambers have offered different arguments on this inclusion, which touches upon fundamental issues related to the scope of application of international humanitarian law. This article explores whether the criminalisation of intra-party offences as war crimes is in line with contemporary international humanitarian law, arguing that a positive answer must be based on the correct interpretation of international humanitarian law rules.

Traditionally, states would not grant enforcement of criminal judgments from other states. As a result, there has been a large deficit in enforcement of monetary and other remedies for victims of criminal violations of international humanitarian law and international human rights law. In recent decades, there has been some progress in national law and treaty law towards allowing or requiring transnational enforcement of victims’ remedies contained in foreign criminal judgments. This article examines the traditional law, modern progress concerning criminal remedies, and recent United Nations work in the area. Even with modern trends in the international law of criminal enforcement jurisdiction, it may turn out that civil judgments of restitution and reparation will be easier to obtain and enforce than criminal judgments in many, if not most, cases.

International law prohibits the recruitment and use of children under the age of fifteen to participate actively in hostilities. Such child soldiers constitute military targets under international humanitarian law (ihl), and the prevailing view is that they may be targeted in the same way as their adult counterparts. Although there may be moral or pragmatic reasons for avoiding targeting child soldiers if possible, there is no obligation under international law to treat them differently from an adult fighter.

In August 2013, the German Federal Constitutional Court affirmed its stance against claims by individuals for reparations for violations of international humanitarian law that it had developed in previous case law. It denied reparation and compensation to be paid by the Federal Republic of Germany to the relatives of killed civilians and to civilians wounded as a consequence of the destruction of a bridge in the Serbian city of Varvarin. The bridge had been destroyed on 30 May 1999 in the course of the North Atlantic Treaty Organization’s (nato) aerial action “Allied Force” against the Federal Yugoslav Republic. The case concerned claims by survivors and family members of persons killed in the attacks. The Court rendered a joint decision on both constitutional claims and found no violation of constitutional rights.

‘We demand dignity for the victims’. Such was the pledge of the Dutch Minister of Foreign Affairs following the crash of Malaysia Airlines flight mh17 in rebel-held territory in eastern Ukraine and the looting of the corpses of the 298 victims. Although not an isolated instance, the indecent disposal of the corpses of the victims seems to have escaped legal scrutiny. Drawing from this and other case studies, this article addresses the legal qualification of acts of mistreatment perpetrated against the corpses of victims of international crimes. It analyses all relevant dispositions pertaining to international humanitarian law, international criminal law and the law of trafficking in human beings. While these provisions fail to legally characterize such acts, the judiciary however tends to recognize their criminality; a recognition which, in the authors’ views, could make its way into the text of international (criminal) law.

This article reviews the legacy of the International Criminal Tribunal for Rwanda (ICTR) under a specific compliance perspective and asks whether the Tribunal’s jurisprudence furthered the adherence to norms of international criminal and humanitarian law. The Tribunal’s impact on the circulation, emergence and enforcement, of the prohibitions of genocide and other serious violations of international humanitarian law will thus be scrutinised. Furthermore, the legitimacy of the ICTR’s jurisprudence plays a major role as human beings not only follow a logic of consequence but also a logic of appropriateness. This combined approach will show that the ICTR – despite its shortcomings – has furthered compliance by diffusing the norms of international criminal and humanitarian law not only to Rwanda and the Great Lakes Region, but also to the international community.

This article considers the question of criminal liability for training child soldiers. None of the legal instruments prohibiting recruitment and use of child soldiers expressly relates to training child soldiers. This raises the question, on the one hand, whether a trainer can be held liable for training as a distinct offence from recruiting or using child soldiers. On the other hand, it raises the question whether a trainer is necessarily liable for recruitment or use of child soldiers. In an attempt to answer these questions, this article highlights the distinct factual and legal differences between recruitment, training and use of child soldiers. This exercise demonstrates that the law is not clear on the criminal liability of a trainer especially if the trainer is not factually involved in recruitment or use of child soldiers. The article concludes that the express clarification of the nature and extent of criminal liability for training child soldiers will improve the legal regimes for the protection of children in armed conflict.

While assessing the legality of the US drone strikes in Pakistan, this article takes into account the nature of armed conflict which has potential to be converted into an international armed conflict (IAC) from a non-international armed conflict (NIAC). The growing trust-deficit between Pakistan and the US is catalyst for determination of nature of armed conflict. The arguments based on tacit consent of Pakistan no longer stands valid after a clear protest by Pakistani officials at national, bilateral and international level. It also examines the observance of the rules of International Humanitarian Law (IHL) in comparison with official US statements. Continued drone strikes are now being considered as counter-productive and resulting in increased suicide bombing in various cities of Pakistan. The author suggests a collaborative effort by considering other social, political and economic factors to minimize the violation of IHL for desired results.

Among the creators of international criminal law were the many women who participated in the post-World War II trials of former Nazis and Nazi collaborators. This essay profiles one of those women: Cecelia Goetz, a thirty-year-old American who was the only woman to deliver an opening statement at Nuremberg. The essay not only details how and why Goetz became a prosecutor in the Krupp trial, but also relates a life story marked by many "first women" events, on law review, at the U.S. Department of Justice, and, after Nuremberg, in the federal judiciary.

Women have achieved much since the revival of international criminal justice. But much remains to be achieved, both in the number and quality of women judges and in the way that women's concerns are addressed, as the implementation of complementarity shifts humanitarian law from international to national judicial arenas.

Forced migration in war is known to arise from serious assaults on populations and is known to carry serious consequences for the people who move. In the context of international humanitarian law, forced migration is viewed as a survival strategy, a resort to flight in order to get out of the way of hostile action. The varieties of injuries associated with forced migration have been largely assigned to the category of unavoidable or difficult-to-mitigate collateral costs of armed conflict. It is argued in this paper that the phenomenon of forced migration in war constitutes, in itself, a serious violation of international humanitarian law. The agency of government or military command is behind the military or political action that provokes population flight; the short and long-term mortality and morbidity always associated with forced migration occurs disproportionately and indiscriminately to civilian non combatants; and the dissolution of identity, the assault on dignity, the destruction of personal and community records, and the sweeping loss of livelihoods occasioned by war-induced forced migration represent in themselves war crimes or on a grand scale crimes against humanity. This paper presents evidence to substantiate the claim that forced migration in war inflicts intense and extended suffering on civilian populations. Reference is made to Hague and Geneva law, the two international human rights covenants (ICCPR and ICESCR) and to the Refugee Convention to find elements of what should arguably be advanced as the constituent basis for defining forced migration in war as a distinct and independent crime in international criminal law. In much of international humanitarian law, empirically grounded recognition of a new class of grievous injuries or a new category of people to protect leads to an expansion of a preexisting framework (civilian protection) or an entirely new treaty or convention (cluster munitions). The suggestion made here is that forced migration in war be considered within that historical continuum—not as a prevalent and (largely) unavoidable process but as a newly recognised crime.

Whether a general rule on omission exists in international criminal law has long been fraught with controversy. It has recently met with increasing acceptance, most prominently by the ICTY Appeals Chamber’s judgement of 5 May 2009 (Prosecutor v. Mrkšić et al.). In view of the likely further consolidation of the law, this study deals with the material requirements of ‘commission by omission’ more comprehensively. It tests several possible ways to give meaning to the offender’s duty to prevent the incriminated action, as the ‘duty to act’ is widely seen as the key to criminal liability for omission. In particular, the present article challenges the prevailing trend in international case law and scholarship to derive individual duties to act from duties under international humanitarian law or domestic law. The alternative approach put forward herein is to derive duties to act genuinely from international criminal law.This is done by extending the ‘principle of control’, which according to ICC case law constitutes the underlying base for ‘commission by action’, to the sphere of omission. There, the overarching criterion of control can be broken down into a set of clear-cut duties to act and thus be reconciled with the requirements of legal certainty. Eventually, it is shown that pursuant to the present approach ‘commission by omission’, albeit not explicitly contemplated by the ICC Statute, falls within the jurisdiction of the ICC.

The implementation of the Rome Statute in Latin America continues to face structural gaps caused by a lack of comprehensive implementation of all the elements of the treaty. In the case of war crimes legislation, only seven countries have adopted specific regulations implementing Article 8 of the Rome Statute or grave violations of international humanitarian law. The main problem persists in the fact that there has not been a significant implementation of Additional Protocol 1 to the 1949 Geneva Conventions as a complement to Article 8 of the Rome Statute. Also, regulation has focused on persons and property, leaving the criminalization of means and methods of warfare as well as the use of certain weapons behind.

The internal conflict in Peru that ranged from 1980 to the mid 90s entailed serious crimes committed by armed groups, especially "Sendero Luminoso" (Shining Path) and by the state's own armed forces, in particular the military and paramilitary groups such as the "Colina Group". These crimes ranged from attacks against civilians in violation of international humanitarian law, to enforced disappearances of persons, torture, and extrajudicial executions. In some cases, these crimes have even qualified as genocide.

The treatment of prisoners of war (POWs) has been an issue of concern to all those engaged in armed conflict for centuries. The problem of how to deal with POWs is not a new one and their treatment is a question with which the laws of war have been particularly concerned. Not all persons captured in the course of armed conflict are entitled to POW status. Generally, only persons recognized as "combatants" in accordance with international humanitarian law are entitled to POW status upon capture by an adverse party in armed conflict. Under the Third Geneva Convention of 1949, POWs are the responsibility of the capturing power from the moment of capture, and not of the individual or military units, which actually capture them. POWs must at all times be humanely treated and the Third Convention provides clear rules in relation to their camps, quarters, food and clothing. The principles embodied in the Islamic Law of War also provide a comprehensive framework for the protection of POWs. Nevertheless, there are some important differences between Islamic Law of War and the principles contained in the Geneva Conventions and Hague Regulations, especially in relation to triggering the application of the laws of war and the concept of armed conflict. What is most striking is the similarity in the protection provided by both legal frameworks. However, the single biggest challenge to both regimes remains the implementation of the relevant principles.

This note discusses the distinction between international and non-international armed conflicts in the prosecution of war crimes before the International Criminal Court. It analyses the international humanitarian law applicable to both kinds of conflict, and the way in which the International Criminal Tribunal for the former Yugoslavia succeeded in prosecuting war crimes committed in non-international armed conflicts. It also studies the two war crimes regimes provided for in the Rome Statute of the International Criminal Court. The note then examines how Pre-Trial Chamber I dealt with this issue in its Decision on the confirmation of charges against Thomas Lubanga Dyilo and the problems it faced in doing so. It concludes with a plea for the abolition of the distinction between international and non-international armed conflicts with respect to war crimes in the Rome Statute of the International Criminal Court.

It is widely known that the earlier practices of the International Criminal Tribunal for the Former Yugoslavia have been criticized for having dealt with comparably minor war criminals. The implications behind such a criticism may be that an ad hoc international or hybrid criminal tribunal should concentrate on those who were most responsible for the crimes and serious violations of international humanitarian law. The first part of this paper will thus focus on the logic of targeting big fish. Then the recent practices of the ad hoc International Criminal Tribunals and the Special Panels for Serious Crimes of East Timor have been addressed in this light. Irrespective of the institutional and practical demands of targeting big fish, the concern remains whether there is a normative demand for targeting only senior leaders of mass atrocities. Therefore, the last part of this paper would like to discuss the big fish versus small fish debate by examining the possibilities of a leadership element in ratione materiae of international criminal tribunals.

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