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The main aim of the article is to test how states implement international humanitarian law (IHL) with regard to the families of missing persons. The article shows relevant IHL shortcomings and compares them with rules applicable in cases of enforced disappearance. The national legislation collected in the section titled ‘The Missing and Their Families’ of the National Implementation Database of the International Committee of the Red Cross is then examined. The analysis addresses three core questions that are particularly relevant for families of missing persons: (1) Who is considered a missing person under each law? Approaching this question allows the testing of whether states follow the understanding of ‘missing persons’ under IHL treaty law. The second and third questions address two issues that are crucial for families of missing persons that are not addressed in IHL: (2) How is the legal status of the missing person regulated? (3) Are family members provided with measures of reparation and/or assistance? This approach reveals that states rarely apply the IHL understanding of ‘missing persons’ and predominantly exceed IHL by addressing some of the identified shortcomings. It further shows that states provide families of missing persons either with reparation measures – in cases of human rights violations – or, less often, with measures of assistance in post-conflict situations.

The emergence of new technologies might challenge our assumptions about biomedical research: medical progress may not only cure but enhance human capacities. In particular, the emergence of brain-machine interfaces will admittedly allow disabled people to move or communicate again, but also has various military applications, such as remote control of drones and avatars. Although there is no express legal framework pertaining to the experimental phase of human enhancement techniques, they are actually constrained by international law. According to international humanitarian law, civilians and prisoners of war may be subjected to experiments only when required by their state of health or for medical treatment. According to international human rights law, experimentations are permissible when they meet two conditions: (i) free consent, and (ii) proportionality (that is, the adequacy of risk and benefit). In light of these conditions, this article assesses the situations in which experimentation involving brain-computer interfaces would be lawful. It also gives specific attention to those experimentations carried out on members of the armed forces. In fact, owing to the military hierarchy and the unique nature of its mission (to protect national security at the risk of their own lives), it is necessary to determine how the military may comply with this legal framework.

United Nations, regional and domestic counterterrorism measures have generated a cascade of adverse effects for impartial humanitarian activities in areas where designated groups are present. Certain humanitarian activities, diverted supplies and incidental payments can fall foul of broadly worded counterterrorism regulation proscribing or criminalizing financial and other support to designated groups. Donors to humanitarian organizations set strict conditions and financial institutions decline transactions, hampering impartial humanitarian activities in the very instances in which international humanitarian law (IHL) requires that they be allowed. Recognizing this, United Nations Security Council (UNSC) resolutions 2462 and 2482 adopted in 2019 have spelled out more explicitly than ever before the need for counterterrorism measures to comply with IHL and safeguard impartial humanitarian action in line with IHL. This article sets out those IHL obligations that govern humanitarian and medical activities and the types of safeguards that States have put in place to ensure their counterterrorism measures comply with IHL and allow for these activities. The UNSC's latest steer in resolutions 2462 and 2482 provides a foundation for States’ exclusion of impartial humanitarian and medical activities from the scope of application of their counterterrorism measures. This can be an effective way of averting adverse consequences for these activities where designated entities are present.

This article clarifies the ongoing confusion in doctrine and practice about both the actual and optimal interaction between international counterterrorism law (CTL) and international humanitarian law (IHL) in armed conflict. It discusses the advantages and disadvantages of the co-application of CTL with IHL, before considering a variety of techniques for mutually accommodating the interests of both regimes, particularly through partial exclusion clauses in counterterrorism instruments or laws. It concludes by identifying the optimal approach to the relationship between CTL and IHL, which recognizes the legitimate interests of both fields of law while minimizing the adverse impacts of each on the other.

Since the adoption of the first United Nations Security Council (UNSC) counterterrorism resolution after the 9/11 attacks, the UNSC has increasingly required the domestic criminalization of “terrorism” acts and ancillary activities. Without the inclusion of an explicit international humanitarian law (IHL) or humanitarian exception, the UNSC has – so far – failed to harmonize the counterterrorism legal framework with IHL, leaving it up to States to define the interaction between the two. In their national legislation and courts, States’ interpretations have varied but counterterrorism legislations have been used to adjudicate conducts in armed conflicts, regardless of their legality under IHL. As the domestication of UNSC offences is ongoing, good practices are highlighted in this paper and recommendations are offered to ensure the development of international customary law in accordance with IHL.

The intriguing relationship between jus ad bellum and jus in bello has provoked perennial academic debates. This article examines this issue from Chinese perspectives and offers a cultural critique of the well-entrenched norm of the ad bellum/in bello separation in international humanitarian law. Based on its distinctive traditional perception of the world order and the meaning of war, China embraces a holistic understanding of the ad bellum/in bello relationship. This relationship is construed as essentially harmonized. The cardinal moral principle underpinning it is that a just war should be conducted in a just way. The ad bellum/in bello separation in international humanitarian law has a Western origin, and the rationale behind it intimates Western sensitivity to the European just war tradition in which jus in bello was parasitic on jus ad bellum. It is assumed that jus ad bellum and jus in bello are irreconcilably in conflict once they come into contact with one another. This assumption is followed by a widely-held belief that any attempt to reconnect the two concepts would bring nothing but the subordination of jus in bello to jus ad bellum as experienced in European just war and, consequently, the collapse of the former. Chinese perspectives nevertheless evidence that this conventional line of thinking, hampering scholars from thinking beyond the sealed ad bellum/in bello separation, is not sound. A proposal for a more constructive solution should be taken into consideration.

The operation of military courts is clearly allowed for and, in some cases, mandated by international humanitarian law (IHL). Nevertheless, the use of military courts has been one of the most controversial and hotly debated areas of human rights. Despite the ostensibly exclusive military domain, many human rights bodies have registered significant scepticism towards this type of justice. Consequently, they have sought actively to regulate this ‘IHL space’ with scant attention to the requirements of IHL itself. The article examines comments, case law, draft rules and other measures taken by two human rights frameworks: the United Nations Human Rights Council and the African Commission on Human and People's Rights. It will analyse how, since 2000, these bodies have approached the issue of IHL when assessing the legitimacy and operation of military courts. For instance, do they consider IHL as a source of law guiding their efforts and rely on IHL instruments? How do they resolve conflicts between IHL and international human rights law? Additionally, the article will consider the validity, legality and effectiveness of these efforts. It concludes that, in reviewing military courts, there exists significant neglect of IHL in human rights frameworks. Through overlooking IHL or relegating it to a sub-specialty of international human rights law, these bodies not only ignore applicable law, they deprive themselves of the wealth of expertise found in commentary, debate, jurisprudence and practice in the IHL sphere. Instead, integrating IHL analysis and theory and affording it its appropriate respect within relevant human rights discussions will allow for greater legal and policy coherence, and human rights bodies will be better placed to fulfil their mandates.

The focus on the moral rights of combatants in the ethics of war ignores a very important point: although morally unjust combatants cannot be considered moral equals to just combatants, especially with regard to the right to kill, there are sound moral reasons why the laws of war should accept a kind of equality between them, a concept referred to as “reduced legal equality.” Reduced legal equality is not about equal moral rights but about granting legal immunity to combatants for their conduct in accordance with the laws of war. This article shows that reduced legal equality of combatants is not only the morally best legal regulation in our nonideal international world but also the correct interpretation of international law.

This paper explores the legality of the land closure imposed upon the Gaza Strip by Israel. After having considered the area under occupation, the paper argues that the legality of the closure must be determined under international humanitarian law, international human rights law, the principle of self-determination of peoples, and the Israeli-Palestinian agreements. In the light of these rules, the arbitrary closure of the Gaza Strip should be considered illegal because it breaches the unity between the Gaza Strip and the West Bank, and because it violates the freedom of movement of the local population. Moreover, the closure breaches the relevant rules pertaining to the transit of goods in occupied territory. The paper concludes that most of the violations caused by the closure affect peremptory rules which produce obligations erga omnes, so that any state in the international community is entitled to react under the law of state responsibility.

Drafters of international humanitarian law (IHL) treaties clearly envisaged a role for military justice systems in the implementation and enforcement of these treaties. Nevertheless, the adequacy of military jurisdiction over violations of international law is being questioned in certain spheres. In the context of these debates this article considers the domestic rationale for military justice systems and explores the role and limits of military jurisdiction in combating impunity for violations of IHL. In focusing on the need to effectively repress and suppress all violations of IHL, the article addresses the extent to which some sort of military justice may be necessary for the effective enforcement of certain provisions. It also explores the way in which increased scrutiny of the impact of these justice systems on the rights of individuals has led to restrictions on the format and scope of military jurisdiction. Although there are difficulties in internationalising the discussion on military jurisdiction because of differences in domestic legal traditions, the choice of effective IHL enforcement mechanisms, which includes the choice of military or civilian jurisdiction, is key in combating impunity for violations of this body of law and protecting the rights of those involved.

This paper compares and contrasts the Islamic law of armed conflict with the modern international humanitarian law, with the view of identifying foundational similarities between these two separate canons, drawing extensively from al-Siyar al-Kabir. To this end, it raises the question as to whether the Islamic law of armed conflict is compatible with its modern counterpart, and, if it is, to what extent. To address these interlinked questions, the study departs from the premise that in order to identify resemblance, it is necessary to enquire into the foundations (both legal and philosophical) of the Islamic and contemporary approaches vis-à-vis armed conflicts.

In recent non-international armed conflicts in countries such as the Central African Republic, Iraq, Libya, Nigeria, South Sudan, Syria, Ukraine and Yemen, various non-State armed groups (NSAGs) have exercised control over territory and people living therein. In many cases, and for a variety of reasons, NSAGs perform some form of governance in these territories, which can include the maintenance of order or the provision of justice, health care, or social services. The significance of such measures became particularly apparent when in 2020 not only governments but also armed groups took steps to halt the spread of the COVID-19 pandemic. This article examines key legal issues that arise in these contexts. First, it analyzes the extent to which international humanitarian law protects the life and dignity of persons living under the control of NSAGs, rebutting doubts as to whether this field of international law has a role in regulating what is sometimes called “rebel governance”. Second, it provides a brief overview of aspects of the lives of people in armed group-controlled territory that are addressed by international humanitarian law and aspects that instead fall into the realm of human rights law. Third, the article discusses whether and to what extent human rights law can be said to bind NSAGs as a matter of law and flags issues that need further attention in current and future debates. © The Author(s), 2021. Published by Cambridge University Press on behalf of the ICRC

The forgotten story of the birth and life of the definition of ‘military objectives’ is relevant to the ongoing discussion about the need to adapt the law to asymmetric warfare. This definition, authored by a West German law professor and former member of the Nazi party, was driven by a Western effort to privilege regular armies while curbing the actions of guerrilla fighters and exposing their civilian supporters to harm. The Non-Aligned Movement turned the tide by burdening regular armies while exempting irregular combatants from the consequences of disregarding the law. It was only through judicial intervention—grounded in an imagined history of the linear progress of humanity—that civilians on both sides of asymmetric conflicts would ultimately become entitled to receive adequate protection.

The law of armed conflict requires ‘distinction’ between civilians and combatants and provides that only the latter may be targeted. However, for proper implementation, distinction requires advanced observation and recognition abilities as well as the capacity to exercise judgement based on situational awareness. While the observation and recognition abilities of machines may now surpass those of humans, the capacity of machines to exercise judgement remains significantly more limited than our own. Consequently, this article contends that the deployment of ‘autonomous weapons’ based on current levels of technological sophistication would be incompatible with distinction and that, as such, their use in conflict would be unlawful.

This article explores the issue of whether individuals who join enemy forces during international armed conflicts are entitled to prisoner of war status upon capture. It presents the long-running debate on the topic through a study of divided scholarly opinions and judicial decisions. An original analysis of the competing theories is conducted on the basis of available state practice, treaty interpretation methodology, and novel critical arguments and proposals. The article seeks to challenge the value attributed to mainstream academic opinions and judicial precedents and open the debate in an area of international humanitarian law that is still under development.

International humanitarian law (IHL) has traditionally been seen as a legal framework regulating armed hostilities, having little to do with peace. However, recent peacemaking and peacebuilding practice has consistently relied on IHL to frame peace efforts, mainly in non-international armed conflicts. This article explores the relationship between IHL and peace, looking at practice in Colombia, where IHL has been used in a creative way as a means to build trust, facilitate peace negotiations and enforce the resulting peace agreement. Looking at this case, the article offers general insights on how IHL can facilitate the end of conflict and reintegration, frame accountability and reparation, and shield peace deals under a framework in which both State and non-State actors can find a common bargaining zone in their search for peace.

This article considers the international legal obligations relevant to States when withdrawing from situations of armed conflict. While a growing literature has focused on precisely when armed conflicts come to a legal end, as well as obligations triggered by the cessation of active hostilities, comparatively little attention has been paid to the legal implications of withdrawals from armed conflict and the contours of the obligations relevant to States in doing so. Following in the wake of just war scholarship endeavouring to distil jus ex bello principles, this article examines States’ obligations when ending their participation in armed conflicts from the perspective of international humanitarian law (IHL). It shows that while it is generally understood that IHL ceases to apply at the end of armed conflict, this is in reality a significant simplification; a number of obligations actually endure. Such rules act as exceptions to the general temporal scope of IHL and continue to govern withdrawing States, in effect straddling the in bello and post bellum phases of armed conflict. The article then develops three key end-of-participation obligations: obligations governing detention and transfer of persons, obligations imposed by Article 1 common to the four Geneva Conventions, and obligations relating to accountability and the consequences of conflict.

The International Committee of the Red Cross and the International Criminal Court are two very different entities that simultaneously apply international humanitarian law but do so after their own perspectives. This article proposes a cautious yet critical approach to some of their divergent interpretations (conflict classification, the difference between direct and active participation in hostilities, intra-party sexual and gender-based violence, and the notion of attack) and examines how the broader legal system copes with these points of divergence. The analysis considers the institutional characteristics of these two organizations and the pluralistic nature of international humanitarian law as well as its dynamic rapport with international criminal law in order to highlight the versatility needed to face the challenges posed by contemporary armed conflicts.

The use of armed escorts to humanitarian convoys delivering humanitarian assistance potentially increases the targeting of these convoys, yet so far this use has not been examined from the perspective of international humanitarian law (IHL). This article attempts to determine whether the resort to armed escorts is in line with the principle of passive precautions under IHL, how the principle of proportionality could apply in cases of attack against the escort, and whether the convoy turns into a military objective when escorted. Finally, the article tackles the limitations of such a framework in order to define the situations it covers.

In 2019, media investigations revealed that Israel had added facial recognition technologies (FRTs) to the panoply of security and surveillance technologies deployed in its administration and control of the occupied Palestinian territory (oPt). Despite growing academic and judicial scrutiny of the legal implications of these technologies for privacy and freedom of assembly in domestic contexts, scant attention has been paid to their uses by militaries in contexts where international humanitarian law (IHL) applies. This article seeks to establish the international legal framework governing an Occupying Power's deployment of FRTs, particularly in surveillance, and apply it to Israel's uses in the oPt. It is demonstrated that IHL provides flexible, but incomplete, provisions for balancing an Occupying Power's right to employ surveillance technologies within its measures of control and security against the imprecisely defined humanitarian interests of the population under occupation. The relevant legal framework is completed through the concurrent application of an Occupying Power's international human rights law (IHRL) obligations. What is known of Israel's use of FRTs in surveillance appears prima facie not to satisfy the cumulative IHRL criteria for limitations on the right to privacy – legality, legitimate aims, necessity and proportionality – even where these are broadened by reference to IHL. Consideration is also paid to corollary human rights impacts of these technologies, and the potential that they may entrench an Occupying Power's control while simultaneously rendering this control more invisible, remote and less reliant on the physical presence of troops.

Ceasefire agreements are legally governed by international humanitarian law because they have generally been considered in relation to how they affect levels of violence. However, new research in the fields of anthropology, security, and development studies suggests that ceasefires can have many more ramifications. These range from their ability to influence governance institutions, property and citizenship rights, economic networks, and security mechanisms. Consequently, this article suggests that a broader legal framework is needed through which to consider ceasefires and their consequences. While canvassing the option of ceasefires being types of contractual documents or as special agreements under Common Article 3 of the Geneva Conventions, the article concludes that the best way to regulate ceasefire agreements is through an expanded version of lex pacificatoria. Rather than being governed by hard international law, such a move would allow for the implementation of more flexible programmatic standards to influence the myriad ways ceasefires are negotiated, the conduct of belligerents, and their diverse effects on the ground during wartime.

Economic and armed non-state actors increasingly operate through their transnational activities. International public law excludes them from any international regulation or accountability process. International humanitarian law (IHL, the law of war) as a branch of international public law is an exception to this because it also regulates the behavior of non-state actors. Recent developments pertaining to the potential liability of business entities for involvement in international crimes, particularly when related to the activities of ANSGs challenge the traditional doctrine of international law and demonstrate the need for its norms to adapt to an evolving reality.

Since their publication in the 1950s and 1980s respectively, the Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977 have become a major reference for the application and interpretation of those treaties. The International Committee of the Red Cross, together with a team of renowned experts, is currently updating these Commentaries in order to document developments and provide up-to-date interpretations of the treaty texts. This article highlights key points of interest covered in the updated Commentary on the Third Geneva Convention. It explains the fundamentals of the Convention: the historical background, the personal scope of application of the Convention and the fundamental protections that apply to all prisoners of war (PoWs). It then looks at the timing under which certain obligations are triggered, those prior to holding PoWs, those triggered by the taking of PoWs and during their captivity, and those at the end of a PoW's captivity. Finally, the article summarizes key substantive protections provided in the Third Convention.

The use of cyber operations during armed conflicts and the question of how international humanitarian law (IHL) applies to such operations have developed significantly over the past two decades. In their different roles in the Legal Division of the International Committee of the Red Cross (ICRC), the authors of this article have followed these developments closely and have engaged in governmental and non-governmental expert discussions on the subject. In this article, we analyze pertinent humanitarian, legal and policy questions. We first show that the use of cyber operations during armed conflict has become a reality of armed conflicts and is likely to be more prominent in the future. This development raises a number of concerns in today's increasingly cyber-reliant societies, in which malicious cyber operations risk causing significant disruption and harm to humans. Secondly, we present a brief overview of multilateral discussions on the legal and normative framework regulating cyber operations during armed conflicts, looking in particular at various arguments around the applicability of IHL to cyber operations during armed conflict and the relationship between IHL and the UN Charter. We emphasize that in our view, there is no question that cyber operations during armed conflicts, or cyber warfare, are regulated by IHL – just as is any weapon, means or methods of warfare used by a belligerent in a conflict, whether new or old. Thirdly, we focus the main part of this article on how IHL applies to cyber operations. Analyzing the most recent legal positions of States and experts, we revisit some of the most salient debates of the past decade, such as which cyber operations amount to an “attack” as defined in IHL and whether civilian data enjoys similar protection to “civilian objects”. We also explore the IHL rules applicable to cyber operations other than attacks and the special protection regimes for certain actors and infrastructure, such as medical facilities and humanitarian organizations.

In many conflicts, aid organisations have to navigate the international humanitarian law requirement that parties to the conflict must consent to assistance. In non-international armed conflicts this often frustrates efforts to provide relief, as States refuse to grant consent in order to uphold their claims to sovereignty. Looking at the Syrian Civil War, this article suggests that the law of agency can offer a fresh perspective on the challenges posed by the requirement of consent to humanitarian assistance. It suggests that agency law can provide a legal explanation of seemingly political decisions and ade lege ferendajustification for assistance in instances where consent is either absent or provided by a non-State armed group.

Up to now, the Chinese government has only made very general comments on the application of international humanitarian law to cyberspace. There are indeed Chinese academic papers concerning this issue, but the discussion of the principle of distinction is limited both in length and in academic depth. Compared with the West, research by Chinese scholars on this topic is still in a relatively preliminary stage. At present, there is no specific deconstruction or clarification of the application of the principle of distinction in cyberspace in Chinese academia. As the first paper written by Chinese scholars specifically devoted to this question, this piece provides a different perspective by injecting the positions of Chinese officials and the views of Chinese scholars. The authors aim to clarify whether the existing rules are still completely applicable in the cyber context, and if needed, to find out what kind of improvements and clarifications can be made. Weighing in on these debates, we argue that despite the potential technical challenges and uncertainties, the principle of distinction should be applied to cyberspace. It should also be carefully re-examined and clarified from the standpoint of preventing over-militarization and maximizing the protection of the interests of civilians. For human targets, the elements of combatant status identified in customary international law and relevant treaties are not well suited to the digital battlefield. Nevertheless, cyber combatants are still obligated to distinguish themselves from civilians. In applying the principle of distinction, we argue that it makes more sense to focus on substantive elements over formal elements such as carrying arms openly or having a fixed distinctive sign recognizable at a distance. In interpreting “direct participation in hostilities”, the threshold of harm requires an objective likelihood instead of mere subjective intention; the belligerent nexus should be confirmed, and the causal link should be proximate. Applying the “cyber kill chain” model by analogy helps us to grasp the whole process of direct participation in hostilities during cyber warfare. For non-human targets, all military objectives must cumulatively fulfil both the “effective contribution” and “definite military advantage” criteria, which are equally indispensable. The same requirements apply to dual-use objects. Furthermore, certain data should fall within the ambit of civilian objects.

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.

The participation of foreign fighters on the side of terrorist groups has raised many questions about the legal basis for the criminal prosecution of acts of terror during armed conflicts. In cases regarding the commission of terrorist crimes with transnational elements, such as the foreign nationality of the alleged perpetrator, cooperation with other states in matters such as extradition or mutual legal assistance can be crucial. This study will analyse two regimes that may constitute a legal basis for cooperation in criminal matters against acts of terror committed during armed conflicts: (i) the rules on criminal responsibility under international humanitarian law (IHL), and (ii) the United Nations framework of anti-terrorist conventions. IHL has been seen by many as the only framework applicable to acts committed during armed conflicts. In contrast, the position adopted in this article is that IHL does not necessarily exclude the application of other regimes to acts committed during armed conflicts, which can serve as a complementary tool in international efforts for the prevention and suppression of terrorism.

The realities of contemporary armed conflicts with a complex interweaving net of actors are rarely reminiscent of classic combat scenarios envisaged by the drafters of the Geneva Conventions. The scarcity of conventional regulation of non-international armed conflicts (NIACs), coupled with the non-state character of the majority of detaining powers, lead to lack of clarity regarding the legal regime of detention of persons captured by non-state armed groups (NSAGs). In the absence of an explicit authorisation for internment under the international humanitarian law applicable to NIACs, recent developments in case law have induced a scholarly debate on what is the legal basis for administrative detention carried out by these actors. The article analyses key arguments presented by both sides of the debate, concluding that neither side can demonstrate either the existence or the absence of the authorisation in question, while the discussion itself has limited practical value in regulating the conduct of NSAGs. At the same time, the practice of states, although still ambivalent, points to the gradual transformation of mere legality, or the so-called ‘inherent power’ to intern, into a customary provision providing a legal basis for administrative detention by NSAGs.

The restriction of personal liberty is a critical feature in all conflicts, whether they are of an international character or not. With the increased prevalence of non-international armed conflict and the drastic proliferation of non-state armed groups, it is critical to explore whether such groups can legally detain or intern persons during conflict. This article proposes that there exists a power and a legal basis for armed groups to intern persons for imperative security reasons while engaged in armed conflict. It is suggested that this authorisation exists in the frameworks of both international humanitarian law and international human rights law, as it does for states engaged in such conflicts. It is proposed that such power and legal basis are particularly strong for armed groups in control of territory, and can be gleaned from certain customary law claims, treaty law, as well as some case law on international humanitarian law and human rights. Certain case law of the European Court of Human Rights on detention by de facto non-state entities conceivably reflects a change in traditional thinking on ‘legal’ detention by armed groups.

The civilian-combatant frame persists as the main legal lens through which lawyers organize the relationships of conflict zone actors. As a result, little attention has been paid in international legal scholarship to different gradations of ‘civilianness’ and the ways in which some civilians might compete to distinguish themselves from each other. Drawing attention to international humanitarian actors – particularly those working for NGOs – this article explores the micro-strategies these actors engage in to negotiate their relative status in war. Original qualitative empirical findings from South Sudan illuminate the way in which humanitarians struggle over distinction with individuals working for the UN peacekeeping mission, UNMISS. As is shown, humanitarian actors are doing away with a static civilian-combatant binary in their daily practice. A more fluid logic informs both their self-conceptualization and their interactions with others who share the operational space. Humanitarian actors envision civilianness as a contingent concept, and they operate according to a continuum along which everything is a matter of degree and subtle gradation. As civilianness is detached from the civilian, any given actor might acquire or shed civilian-like, or combatant-like, characteristics at any moment. The distinction practices that humanitarian actors enact can be understood as a bid for legibility, so that they might be rendered intelligible in international law and in the eyes of other actors as a special kind of civilian – the ‘civilian plus’.

Tom Ginsburg's thought-provoking Authoritarian International Law? invites us to reflect on the potential changes to the international legal order that might flow from the global decline of liberal democracy and the corresponding rise of illiberal authoritarian regimes. Given that Ginsburg's cautionary tale is predicated on the central interest of authoritarians in the survival of their regimes and their concerns about internal security, it is not surprising that many of the implications he identifies— which involve the expansion of norms that facilitate internal repression, enable repressive regulation of online expression, and dilute international democracy promotion—concern international law's regulation of states’ internal affairs. If Ginsburg's predictions about expanding authoritarianism are correct, however, we should also consider the implications for the evolution of international law in the external security realm, and in particular, for the legal regime governing the use of force and intervention in the affairs of other states. In this essay, I suggest that the expansion of authoritarianism is likely to diminish legal accountability of outside states that support repression by such regimes; to entrench the legal status of existing authoritarian regimes confronting domestic political violence; and to weaken the legal basis for Security Council interventions rooted in the “responsibility to protect” principle. When authoritarian states do wage wars, particularly when they intervene in civil wars, we should expect that their compliance with international humanitarian law (IHL) will be weak.

Do rebel group violations of international humanitarian law during civil war—in particular, attacks on noncombatant civilians—affect conflict outcomes? I argue that in the post-Cold War era, rebel groups that donottarget civilians have used the framework of international humanitarian law to appeal for diplomatic support from Western governments and intergovernmental organizations. However, rebel group appeals for international diplomatic support are most likely to be effective when the rebel group can contrast its own restraint toward civilians with the government's abuses. Rebel groups that donottarget civilians in the face of government abuses, therefore, are likely to be able to translate increased international diplomatic support into more favorable conflict outcomes. Using original cross-national data on rebel group violence against civilians in all civil wars from 1989 to 2010, I show that rebel groups that exercise restraint toward civilians in the face of government violence are more likely to secure favorable conflict outcomes. I also probe the causal mechanism linking rebel group behavior to conflict outcomes, showing that when a rebel group exercises restraint toward civilians and the government commits atrocities, Western governments and intergovernmental organizations are more likely to take coercive diplomatic action against the government. The evidence shows that rebel groups can translate this increased diplomatic support into favorable political outcomes.

This essay analyzes the outcome of the International Law Commission (ILC)’s seventy- first session, held from April 29 to June 7 and from July 8 to August 9, 2019 in Geneva, under the chairmanship of Pavel Sturma (Czech Republic). Notably, the Commission completed the first reading of its topic on peremptory norms of general international law (jus cogens). The Commission also completed the first reading of its topic on protection of the environment in relation to armed conflict and completed the second reading of its topic on crimes against humanity. Progress was also made in developing draft articles on succession of states with respect to state responsibility, draft articles on immunity of state officials from foreign criminal jurisdiction, and draft conclusions on general principles of law. Additionally, the Commission held informal consultations concerning model clauses for its topic on provisional application of treaties, the first reading of which was completed in the seventieth session and the second reading of which is expected during the seventy-second session in 2020. The Commission added to its agenda a topic on sea-level rise in relation to international law, which is being addressed in the context of a study group rather than by use of a special rapporteur. It also added two new topics to its long-term work program: (1) reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law; and (2) prevention and repression of piracy and armed robbery at sea.

In the past decades, Europe has been the site of multiple drug policy innovations and cannabis policy experimentation. Most of the policy reforms in this area are taking place at the national and subnational levels. They have not resulted from agreements or harmonization initiatives at the EU level, but rather from bottom-up adoption of cannabis policies and practices that deviate from punitive approaches. Cannabis regulation has been only marginally debated by European institutions and is not discussed in depth in any EU document. On the one hand, the diversity of European drug policies is a positive development: it serves as a policy laboratory and reflects adaptations to local contexts in light of drug market-related challenges. On the other hand, a greater EU consensus would be helpful for policy coordination and international engagement.

The interaction of international counter-terrorism laws with IHL is an area of renewed focus, amid widespread concern that the former are being (mis)applied to criminalise the provision of humanitarian assistance envisaged under the latter. The Security Council has begun to consider this issue in resolutions adopted in March and July 2019, but difficult questions of law and fact remain. These questions have significant practical consequences—for humanitarian agencies and those they seek to assist, as well as for States that must weigh different, and possibly conflicting, legal obligations. Much of the analysis to date and the solutions proposed, pay insufficient attention to the specifics of each legal regime.

Legal controversies and disagreements have arisen about the timing and duration of numerous contemporary armed conflicts, not least regarding how to discern precisely when those conflicts began and when they ended (if indeed they have ended). The existence of several long-running conflicts – some stretching across decades – and the corresponding suffering that they entail accentuate the stakes of these debates. To help shed light on some select aspects of the duration of contemporary wars, this article analyzes two sets of legal issues: first, the notion of “protracted armed conflict” as formulated in a war-crimes-related provision of the Rome Statute of the International Criminal Court, and second, the rules, principles and standards laid down in international humanitarian law and international criminal law pertaining to when armed conflicts have come to an end. The upshot of the analysis is that under existing international law, there is no general category of “protracted armed conflict”; that the question of whether to pursue such a category raises numerous challenges; and that several dimensions of the law concerning the end of armed conflict are unsettled.

Ever since the first quarter of the nineteenth century, Colombia has shifted from one war to the next, be it the War of Independence, the fierce confrontations between liberal and conservative parties or the countless conflicts among guerrillas, paramilitary groups and the State. These wars have brought along a unique contribution to the development of international humanitarian law (IHL). The purpose of this article is to explore the myriad of ways in which Colombia has implemented (and at times made progress on) IHL rules, and to analyze how different conflicts have led the country to explore issues such as the protection of minors, the meaning of the principle of precaution, the compensation of armed conflict victims and the creation of some rather sophisticated transitional justice mechanisms.

This article provides a legal analysis of the largely uncharted notion of “acts harmful to the enemy” under international humanitarian law, which reconciles the humanitarian need to grant special protection to medical services (medical personnel, units and transports) in the interests of the wounded and sick with the military necessity to remove it when acts are committed contrary to good faith and for hostile purposes or with effects which harm the adverse party. The meaning of the notion is clarified by primarily looking into the legality of an attack against land-based medical services by the aggrieved party to the conflict as a consequence of harmful acts. It concludes with specific recommendations on how to interpret the law governing such an attack, considered prima facie lawful, on a hospital.

The toll of civilian deaths in current wars and conflicts has been building for decades. Civilian populations, particularly since WWII, have suffered most of the consequences of armed violence and today represent the most at-risk population. This is attributed to the rise of religious and ethnic hatreds, the collapse of State structures, the battle for control of natural resources, the vast availability of weapons, the proliferation of acts of terrorism, and the spread of so-called asymmetric conflicts. Protections provided to innocent civilians under International Humanitarian Law and the Geneva Conventions have been ignored. This commentary captures the experience of the immediate care and transportation provided to military casualties of the Battle of Solferino in 1859 with civilian casualties recently documented in a Stanford-led study during the “golden hour” after injury in 13 conflicts from 1990 to 2017. Despite many advances in triage and management of war injuries over the intervening decades, the common thread of these 2 scenarios is that transport times and early resuscitation capacity and capabilities, first recognized in the 19th century wars and now accepted as global norms and markers for survival from trauma, are as unavailable today to civilians caught up in war and conflict as they were to soldiers in the 19th century.

Although the Geneva Conventions have been successively revised since 1864, norms regarding the protection of medical care have been frequently disregarded. Despite current claims of international humanitarian law in crisis, comparing historic levels of violations with contemporary incidents is quantitatively challenging. Reviewing past reactions and justifications used by perpetrators of attacks on medical care can, however, be revealing. Based on a series of emblematic cases, qualitative analysis of perpetrator discourse can contribute to a better understanding of why the protection of medical care in armed conflict continues to be problematic to this day, notably through the rationales given for attacks, which have remained remarkably consistent over time.

The 70th anniversary of the adoption of the Geneva Conventions on 12 August 1949 provided an opportunity for reflection on international humanitarian law (IHL). This article continues that reflection and presents some fresh scholarship about and from the Asia-Pacific region. The region's plurality leads to a complex and diverse landscape where there is no single “Asia-Pacific perspective on IHL” but there are instead many approaches and trajectories. This fragmented reality is, however, not a mess of incoherence and contradiction. In the following pages, the author argues for and justifies the following assessments. The first is that the norm of humanity in armed conflict, which underpins IHL, has deep roots in the region. This, to some extent, explains why there is no conceptual resistance to IHL, in the way that exists with the human rights doctrine. The second is that there has been meaningful participation of certain States from the region in IHL law-making. Thirdly, some Asia-Pacific States are among those actively contributing to the development of new or emerging areas relevant to IHL, such as outer space, cyberspace and the protection of the environment in armed conflict. This leads to the unavoidable issue of contradiction. How is it that in a region where such findings can be made (i.e., where there is discernible positivity towards the norm of humanity in armed conflict), there are so many armed conflicts with very serious IHL violations emerging? Should we reflect in a more nuanced way on “norm internalization” and “root causes”? These issues will be considered in the second section of the article. This examination leads to a third and final section, a concluding reflection on what all of this reveals about IHL in the Asia-Pacific. The real challenge for progressive humanitarianism, the author contends, is to traverse disciplines and to build on work done in, on and from the region in order to develop more informed and nuanced approaches to understanding the countries and societies of the region, moving on to study the process of norm internalization, and then developing creative and meaningful strategies for strengthening the links between that internalization, actual conduct on the ground, and norm socialization in the wider community.

Insurgent groups are registering births in territories which they control, and yet States do not recognize insurgent birth registration, resulting in a legal vacuum with harsh consequences for children. Based on international human rights and humanitarian law provisions related to birth registration, this article argues that insurgent groups have an inherent power to register births in order to fulfil their obligations under international humanitarian law, and that State obligation to ensure the right to recognition as a person under the law should require States to recognize insurgent birth registration in order to prevent harm to children.

This paper compares how rules of international humanitarian law and rules of Islamic law protect children in armed conflict. It examines areas of convergence and divergence, and areas where there is room for clarification between these two legal systems. This comparative exercise spotlights four key topics marking the wartime experience of children: the unlawful recruitment and use of children by armed forces and armed groups, the detention of children, their access to education, and the situation of children separated from their families.

Introduction:In recent years, several high-profile attacks on hospitals providing medical aid in conflict settings have raised international concern. The International Humanitarian Law prohibits the deliberate targeting of health care settings. Violation of this law is considered a war crime and impacts both those delivering and receiving medical aid.Problem:While it has been demonstrated that both aid workers and health care settings are increasingly being targeted, little is known about the trends and characteristics of security incidents involving aid workers in health care compared to non-health care settings.Methods:Data from the publicly available Aid Worker Security Database (AWSD) containing security incidents involving humanitarian aid workers world-wide were used in this study. The security incidents occurring from January 1, 1997 through December 31, 2016 were classified by two independent reviewers as having occurred in health care and non-health care settings, and those in health care settings were further classified into five categories (hospital, health clinic, mobile clinic, ambulance, and vaccination visit) for the analysis. A stratified descriptive analysis, χ2 Goodness of Fit test, and Cochran-Armitage test for trend were used to examine and compare security incidents occurring in health care and non-health care settings.Results:Among the 2,139 security incidents involving 4,112 aid workers listed in the AWSD during the study period, 74 and 2,065 incidents were in health care settings and non-health care settings, respectively. There was a nine-fold increase from five to 45 incidents in health care settings (χ2 = 56.27; P < .001), and a five-fold increase from 159 to 852 incidents in non-health care settings (χ2 = 591.55; P < .001), from Period 1 (1997-2001) to Period 4 (2012-2016). Of the 74 incidents in health care settings, 23 (31.1%) occurred in ambulances, 15 (20.3%) in hospitals, 13 (17.6%) in health clinics, 13 (17.6%) during vaccination visits, and six (8.1%) in mobile clinics. Bombings were the most common means of attack in hospitals (N = 9; 60.0%), followed by gun attacks (N = 3; 20.0%). In health care settings, 184 (95.3%) were national staff and nine (4.7%) were international staff.Conclusion:Security threats are a growing occupational health hazard for aid workers, especially those working in health care settings. There is a need for high-quality data from the field to better monitor the rapidly changing security situation and improve counter-strategies so aid workers can serve those in need without having to sacrifice their lives.

This Article examines Israeli military lawyers’ practice of international humanitarian law (IHL) revolving around the West Bank and Gaza. Based on interviews with legal officers serving in the army between 1967–2009 and archival materials, it interrogates these lawyers’ work—the stories that they tell about law, their legal interpretations and their interactions with military decision makers. This interrogation is set in the context of broader structural, historical, and political shifts. Anchored around lawyers’ stories about law, their narration of law’s relationship with politics, and its position in relation to violence, this account sets out to contribute to discussions on lawyers’—and by extension law’s—past and present positions in states’ military affairs.

Inter-State wars seem to have come to an end in the late 1990s; ever since, the global reality of collective violence has come down to the chaos of contemporary civil wars and terrorist attacks. In this article, it will be argued that in today's civil wars, as well as in terrorist violence, the traditional warrior ethos is fading, giving way to types of violence governed by a new psychological and social paradigm. In other words, it is assumed that the very set of values that has universally determined the male gender role and the frame of hegemonic masculinity since time immemorial has also informed the waging of war according to a “heroic regime of violence”, and this phenomenon has made war a desirable option for countless generations of young men. On the other hand, the global changes entailed by modernity seem to have undermined this warrior ethos, giving way to a “post-heroic regime” in which extermination-oriented violence, rather than combat-oriented violence, is fostered. In this article, the author will scrutinize the founding psychological and social determinants that have so far upheld the cultural construct of the heroic model, in order to illuminate the ominous consequences of the deculturation of war in today's chaotic conflicts. In such contexts, the men who are fighting1 suffer from a loss of meaning and the impossibility of gaining dignity and social recognition in an ecosystem of humiliation and ubiquitous violence that has little to do with the expectations of pride and dignity conveyed by the past ideals of heroism associated with a certain vision of masculinity. The article will also discuss ways and means of getting the message of international humanitarian law through to men on the front lines caught up in such circumstances.