Customary International Humanitarian Law Research Articles

Internal legitimacy as a benchmark criterion for the inclusion of NSAGs in the making of IHL

Currently, non-state armed groups (NSAGs) are bound by customary international humanitarian law (IHL) without their consent or inclusion in its making. On the one hand, NSAGs’ inclusion in law-making would make IHL more adapted to situations of rebel governance, the capabilities of NSAGs, and could result in a compliance pull vis-à-vis NSAGs. On the other hand, such inclusion might be undesirable, unreasonable, and unfeasible. Nevertheless, all arguments pro and contra NSAGs’ inclusion do not necessarily apply to all types of NSAGs. However, scholarship lacks a convincing criterion to decide which NSAGs could participate in the formation of customary IHL. This article attempts to provide such a criterion by approaching the discussion in a non-state-centered manner and puts those most affected by armed conflict at the center: communities under rebel governance. It proposes a more holistic interpretation of the practice-criterion for custom-making in combination with the criterion of internal legitimacy to decide which NSAGs to include in customary IHL’s making. Internal legitimacy is generated when communities consent and support rebel governance in a non-coerced manner, motivated by performance-based and symbolic catalysts for legitimacy. This article elaborates on what is understood by the notions of procedural fairness and non-coerced community consent and support; and how it answers the concerns about delegitimizing national governments, legalizing armed struggle, and the detrimental impact of NSAGs’ practice on the substantive protection offered by IHL.

Shaping the International Law Principle of the Inviolability of the Right to Peaceful Enjoyment of Property in the Context of International Armed Conflict

The article focuses on the formation of the international law principle of the right to peaceful enjoyment of possessions in the context of an international armed conflict, given the relevance of the issue of damage and destruction of property as part of the armed aggression of the Russian Federation against the sovereignty and territorial integrity of Ukraine. The author examines the right to peaceful enjoyment of possessions through the prism of international human rights law - as such, where the right to peaceful enjoyment of possessions (property rights) has been enshrined in the international law system, and also through the prism of international humanitarian law and international criminal law - as such, which are special in relation to the right to peaceful enjoyment of possessions in the context of international armed conflict.
 The article examines the principle of inviolability of property rights at the national level, in particular, in legislative and judicial sources, and its impact on the formation of the relevant international law principle. In particular, the author analyses the philosophical development of the concepts of “sacredness” of property rights and inviolability of property rights, as well as the natural essence of this right for a person.
 The author examines in detail the rules of conventional and customary international humanitarian law on the right to peaceful enjoyment of property/property rights depending on the type of acts that may be committed against property and the type of property against which certain acts are directed in the context of an international armed conflict or legal regime of occupation. The provisions on the protection of civilian objects, as well as the non-absolute nature of the protection of property rights in international armed conflict in cases of urgent military necessity, are carefully considered. Based on this analysis, the author identifies the key fundamental provisions on the basis of which the international legal principle of the right to peaceful enjoyment of property in the context of international armed conflict is formed.

Redefining doubt in cases of uncertainty: an analysis of the 2023 US DoD Law of War Manual revision to the presumption of civilian status in armed conflict

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.

Towards comprehensive civilian protection under Common Article 3 by addressing protection gaps in spill-over conflicts

There is a proliferation of non-international armed conflicts across the globe. Increasingly, these conflicts involve groups across two or more borders or that involve cross-border clashes. This is termed as spill-over conflict. The Middle East and Central Africa serve as salient examples to this effect. A literal reading of Common Article 3 locks out the victims of such conflicts from protected status. Common Article 3 restricts its application to non-international armed conflicts occurring in the territory of one high contracting party. The gap in protection occurs where the groups do not meet the organisational threshold in Additional Protocol II regarding the structure of the non-state actors’ organisation but are engaged in conflicts spanning more than a single territory. This paper examines the history of Common Article 3 and finds that the parties had no intention of locking out the application of Common Article 3 based on territorial considerations. Secondly, this paper looks into customary international law through state practice and jurisprudence. It finds that state practice and emerging jurisprudence recognises the fundamental principles that underpin Common Article 3. To this end, even where treaty law is inapplicable, customary international humanitarian law shall apply to provide protection to victims of spill-over non-international armed conflict. It is against this backdrop that the paper proposes that the single territory provision in Common Article 3 be amended to accommodate a more inclusive cross border reading.

Legal guarantees for ensuring and protecting the right of a child to mental health in times of war

The article is devoted to the study of the problems of ensuring the child's right to health, namely the right to mental health in the conditions of war. Children are one of the least protected groups of the population and the most vulnerable in times of war. Customary international humanitarian law guarantees that children affected by armed conflict are entitled to special respect and protection among the various categories of persons under special protection.
 Mental health is an integral determinant of a child's overall health. The challenges to mental health and psychological well-being and development of children caused by the full-scale war have also affected the realisation of the right to health. Based on the analysis of special legal and psychological studies, the author reveals general approaches to the analysis of the essence and content of mental health as an integral part of the child's overall health. The basic scientific and theoretical concepts of using the concepts of "health", "mental health", "mental well-being" are considered. The terminology "mental health" / "psychological health", "mental well-being" / "psychological well-being" is studied and differentiated. The author argues that the use of the term "psychological health" is erroneous when interpreting the content of the concept of "health", identifying it with the related concept of "mental health". The multidisciplinary, complex nature of the phenomena under study is emphasised. The multidisciplinary, complex nature of the phenomena under study is emphasised. The author's definitions of the categories "mental health" and "child's mental health" as an object of law are proposed.
 The article provides a general theoretical overview of a child's personal non-property right to health and examines the main concepts of rationality of using the concepts of "right to health" and "right to healthcare". Particular attention is paid to the study of international legal and national acts that guarantee the rights related to such intangible good as child health, including mental health. The author analyses the norms of international humanitarian law containing guarantees for the realisation of the child's right to health in time of war, according to which children in the zone of hostilities and armed conflicts, as well as those children who have suffered as a result of hostilities, should be protected.
 The author comments on the normative definition of the concept of "child affected by hostilities and armed conflicts" in terms of its compliance with modern realities and formulates proposals for improving the legislation in the field of research, which will contribute to the improvement of child mental health protection and the development of the Ukrainian system of psychological assistance and psychosocial support for children. The elements of the legal mechanism for the implementation, protection and defence of the child's right to mental health should include prevention; timely identification of children in need of psychological assistance; and provision of a wide range of psychological services. Educational institutions should play a primary role in ensuring the child's right to mental health.

The democratic offset: Contestation, deliberation, and participation regarding military applications of AI

Authoritarian regimes’ unrestricted collection of citizens’ data might constitute an advantage regarding the development of some types of AI, and AI might facilitate authoritarian practices. This feedback loop challenges democracies. In a critical continuation of the Pentagon’s Third Offset Strategy, I investigate a possible Democratic Offset regarding military applications of AI focussed on contestation, deliberation, and participation. I apply Landemore’s Open Democracy, Hildebrandt’s Agonistic Machine Learning, and Sharp’s Civilian-Based Defence. Discussing value pluralism in AI ethics, I criticise parts of the literature for leaving the fundamental ethical incompatibility of democracies and authoritarian regimes unaddressed. I am focussing on the duty to disobey illegal orders derived from customary international humanitarian law (IHL) and the standard of ‘meaningful human control’, which is central to the partially outdated debate about lethal autonomous weapon systems (LAWS). I criticize the standard of ‘meaningful human control’ following two pathways: First, the ethical and legal principles of just war theory and IHL should be implemented in military applications of AI to submit human commands to more control, in the sense of technological disaffordances. Second, the debate should focus on the societal circumstances for personal responsibility and disobedience to be trained and exerted in deliberation and participation related to military applications of AI, in the sense of societal affordances. In a larger picture, this includes multi-level stakeholder involvement, robust documentation to facilitate auditing, civilian-based defence in decentralized smart cities, and open-source intelligence. This multi-layered approach fosters cognitive diversity, which might constitute a strategic advantage for democracies regarding AI.

The legal limits to the destruction of natural resources in non-international armed conflicts: Applying international humanitarian law

AbstractThis article analyzes whether and to what extent energy resources fulfil the definition of military objective within the meaning of international humanitarian law (IHL) and customary IHL. In order to bring conceptual clarity to the duty to protect the natural environment in armed conflict, the article explores the legal limits to the destruction of energy resources (that are part of the natural environment) controlled by armed non-State actors during non-international armed conflicts (NIACs). It examines the practice of the United States, which characterizes the destruction of the natural environment during hostilities as being related to targets that contribute to the “war-sustaining capability” of enemies. Conceptual light is shed on the legality of attacks on oil refineries and installations during NIACs as a matter for IHL.

Customary International Humanitarian Law and Article 36 of Additional Protocol I to the Geneva Conventions: A Stopgap Regulator of Autonomous Weapons Systems?

Abstract Autonomous Weapons Systems (AWS) are already in use around the world by various militaries. However, the law governing such systems in the scope of international humanitarian law (IHL) currently lacks specific binding international treaties. Nevertheless, the existing framework is not silent on the topic of new weapons. Article 36 of Additional Protocol I to the Geneva Conventions provides an obligation for states to review new weapons. Consequently, as AWS are being adopted, acquired, and developed, the wide reach of 174 state parties of Article 36, therefore prima facie, represents a reasonable chance of providing some AWS regulation in the meantime. Nevertheless, Article 36 is generic to all new weapons and therefore unable to address concerns specific to AWS. Therefore, considering the vast difference of AWS to weapons which rely on a human operator, it is not unreasonable to state that there is a need for additional regulation. Hence, various non-binding guidelines and recommendations, such as the ‘11 Guiding Principles’ agreed upon by the Convention on Certain Conventional Weapons Group of Government Experts and the International Committee of the Red Cross’ Position on Autonomous Weapons Systems, could conceivably be considered to fill this void at least partly, albeit in a non-binding manner. When considered together with Article 36, these non-binding legal instruments could add predictability and consistency to the state parties’ reviews. Consequently, this paper will examine whether Article 36, in combination with the various non-binding instruments and national positions of state parties to Additional Protocol I, is viable as a binding stopgap measure to regulate AWS. As a result, the structure of the article is trifold. The first part focuses on Article 36, the second on the non-binding guiding instruments, and finally, when both are considered together, whether Article 36 could fulfil such a stopgap role.

Assessing the authority of the ICRC Customary IHL Study

AbstractThis article examines the authority of the 2005 International Committee of the Red Cross Study on Customary international humanitarian law within the international legal system by collecting and analysing citations to the Study in documents containing expressions of State positions, in the judgments of international and domestic courts and tribunals and in the outputs of other influential actors. Our analysis establishes that the Study is increasingly seen as a highly authoritative instrument, such that a particular proposition will be found to reflect customary international law simply on the basis that the Study says so. We argue that the Study's authority will likely only increase over time.

Informal international law-making: A way around the deadlock of international humanitarian law?

AbstractOver the last two decades, international humanitarian law (IHL) has seen a stalling with regard to States’ willingness to adopt treaties or to be formally involved in the development of IHL. This raises the question of whether holding on to the doctrine of sources as laid down in Article 38 of the Statute of the International Court of Justice is the only way to meaningfully further develop IHL. Indeed, in recent years IHL instruments have often dispensed with certain formalities that are traditionally linked to (the formal sources of) international law; this phenomenon is also called “informal international law-making” (IIL). The present contribution will analyze IIL as an alternative way forward in light of the current “deadlock” caused by States’ unwillingness to conclude new IHL treaties or to recognize customary IHL. In this article, we will investigate and assess the opportunities, shortcomings and pitfalls offered by informality by looking into examples of IIL within IHL. More concretely, we will look into State practice in relation to (1) the Safe Schools Declaration, (2) the Tallinn Manual and Tallinn Manual 2.0, and (3) the Montreux Document. Most importantly, our findings will assess whether IIL can overcome one of its alleged main disadvantages: its lack of effectiveness.

The view of the past in international humanitarian law (1860–2020)

AbstractThis essay explores how the drafters of international humanitarian law (IHL) incorporated the past into their work between 1860 and 2020, and how they approached time, memory and history as indicators for this view of the past. Its sources consist of the complete series of general conventional and customary IHL instruments as well as the leading commentaries on them. For the IHL view of time, the impact of legal principles on the perception of time is scrutinized. Balancing nonretroactivity against customary international law and the humanity principle broadens the temporal scope towards the past, while balancing legal forgetting against imprescriptibility and State succession broadens it towards the future. For the IHL view of memory, dead persons and cultural heritage are seen as crucial vectors. Attention to the fate of the dead has been a constant hallmark of IHL, while care for cultural heritage has an even longer pedigree. For the IHL view of history, the essay highlights that the International Committee of the Red Cross has consistently advocated State duties to the war dead and has organized an archival infrastructure to satisfy the need – later converted into a right – of families and society to search for the historical truth about them.Furthermore, the responses of IHL drafters to five major historical challenges are examined. First, while in the realm of war crimes impunity prevailed for most of history, after World War II a system of war crimes trials was mounted, culminating in the International Criminal Court. Second, soul-searching about the atrocities of World War II, including the Holocaust, helped create Geneva Convention IV of 1949, which protects civilians in wartime. Third, the human rights idea was not fully embraced by IHL treaty drafters until 1968. Fourth, the IHL approach to civil wars was slow and incomplete, but its appearance in 1949 and coming of age in 1977 were breakthroughs nevertheless. Fifth, colonial conflicts were not recognized as international wars in 1949, when this could have had considerable impact, but only in 1977, when decolonization was largely over. In all cases, the responses to these historical challenges came after long delays. Clearly, the IHL view of the past has to be assessed on a transgenerational scale.

Protection of Places of Worship during Armed Conflicts: The Enrichment of International Humanitarian Law through Buddhism

Places of worship having deep spiritual attachments with people are highly protected as cultural property under International Humanitarian Law (IHL). While these places are given full respect, recognition, and protection, armed groups are prohibited from attacking or destroying them. The protection is included in the 1954 Hague Convention for the Protection of Cultural Property in the event of Armed Conflicts, Additional Protocol I and II to the Geneva Conventions of 1949, Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the Statute of the International Criminal Court. Further, it is highlighted under the Customary International Humanitarian Law as well. However, there are several significant instances around the globe where the protection of places of worship has been threatened during armed conflicts. In this context, this paper aims to evaluate the correspondence between IHL and Buddhism in relation to the protection of places of worship during armed conflicts. Therefore, this research employs desk research methodology in terms of ascertaining the correspondence between Buddhism and IHL. Accordingly, this research relies on secondary data in the areas of Buddhism and IHL. Thus, special references will be made to key IHL instruments, including Geneva Conventions, Customary International Humanitarian Rules, and case precedents. On the other hand, this paper refers to Buddhist literature on the protection of places of worship, including seven factors leading to welfare taught by the Buddha to the Vajjians, the verdict regarding the four places associated with the life of the Buddha, the 12th Rock Edict of Emperor Aśoka on respecting all religions and Bodhisattva vows mentioned in the Tibetan Buddhist tradition. This paper believes that, although the key objectives of the two bodies are not identically same, the philosophical underpinnings of Buddhism can be used progressively for the enrichment of IHL relating to the protection of places of worship.

Humanitarnyi dostup pid chas zbroinykh konfliktiv

The article analyses the right to humanitarian access, which finds its expression in humanitarian aid and protection during armed conflicts in accordance with the norms of International Humanitarian Law. The basics of humanitarian access activities are determined. Mechanisms for ensuring and supporting effective humanitarian access as a result of collective action and efforts of humanitarian actors are considered. The article reaffirms that the provision of humanitarian assistance is the responsibility of all parties to an armed conflict in accordance with International Humanitarian Law. International Humanitarian Law is a constant of legal norms that must be applied by all parties to an armed conflict. Determinant in this definition is the presence of armed conflict, not the «humanitarian» component. Authors of the article emphasize that the axiom of International Humanitarian Law is the protection of war victims, which corresponds to the key principle of humanity. Access standards are reflected in the four Geneva Conventions for the Protection of Victims of War of 1949 and the two Additional Protocols to the Geneva Conventions of 1977. Unless a State or other party to an armed conflict is a party to a treaty, customary International Humanitarian Law operate in parallel with contractual rules. Humanitarian protection is designed to protect and restore human rights, which is based on the provisions of international human rights law and forms the basis of fundamental human rights and freedoms. The provisions of international criminal law, in particular the 1998 Rome Statute of the International Criminal Court are strengthens humanitarian access. The article argues that addressing issues such as the accreditation of humanitarian missions, the humanitarian aid coordination system and overcoming regulatory gaps will address the current challenges of humanitarian access in armed conflict mainly due to the difficulties of interaction of international humanitarian missions with the warring parties. The authors of the article confirmed that the violation of the right to humanitarian access poses a threat to peace and security in the world.

الحماية المقررة لـ (اللاجئ والمُهَجَّر) بموجب قواعد القانون الدولي الإنساني Protecting of refugees and displaced persons Under the rules of international humanitarian

حاولنا في البحث دراسة أهم الجوانب المتعلقة بحماية اللاجئين والمهجرين بموجب أحکام القانون الدولي الإنساني من خلال البحث في المواد القانونية التي تضمنتها اتفاقيات جنيف الأربعة لعام 1949 والبروتوکولين الإضافيين الملحقين بهما لعام 1977 التي تشکل حجر أساس للقانون الدولي الإنساني وکذلک قواعد القانون الدولي الإنساني، العرفي والاتفاقيات الدولية والمبادئ التوجيهية المتعلقة بالتشرد الداخلي (الصادرة عن الجمعية العامة للأمم المتحدة) من حيث تحديد المفهوم الخاص باللاجئ والمهجر وتحديد الآليات الخاصة بحمايتهم أثناء النزاعات المسلحة الدولية وغير الدولية. Abstract: The project study tries to study the most important aspects protecting displaced and refugees under the provisions of international humanitarian law by searching in the legal articles which is included in the four Geneva Conventions of 1949 and the Additional Protocols thereto of 1977, which constitute the cornerstone of international humanitarian law, as well as the rules of customary international humanitarian law and international conventions. interims of specifying the concept of refugees and displaced by determining the specific way of protecting during international and non-international armed conflicts.

The Problem of Cyber Espionage in the International Humanitarian Law

INTRODUCTION. The article analyses the problem of cyber espionage in the context of armed conflict in cyberspace. The relevance of this research, as part of the problem of international humanitarian law applying in cyberspace, is confirmed by the rapid development of cyber technologies that can be used during armed conflict, as well as the availability of the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations.MATERIALS AND METHODS. The main sources of this research are the provisions of the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, the rules of Additional Protocol I of June 08, 1977 to the Geneva Convention of August 12, 1949, the rules of the Hague Regulations on the Laws and Customs of War on Land of 1907, and the rules of custom- ary international humanitarian law. The methodology consists of the principles used in legal research, as well as general scientific and special methods of legal research (system and formal legal methods).RESEARCH RESULTS. The provisions of the Tallinn Manual on cyber espionage were examined for compliance with the relevant provisions of Additional Protocol I of June 08, 1977 to the Geneva Convention of August 12, 1949, the Hague Regulations on the Laws and Customs of War on Land of 1907, and the rules of customary international humanitarian law, as well as the problems that may arise in the process of possible practical application of this provision of the Tallinn Manual.DISCUSSION AND CONCLUSIONS. It is noted that the provisions of the Tallinn Manual 2.0 on cyber espionage are based on the relevant rules of international law. In fact, the relevant provision of the Tallinn Manual is completely copied from the relevant rules of IHL. However, based on the results of this research, the author comes to the conclusion that such blind copying does not take into account the specifics of cyberspace and leads to the following problems in the possible practical application of this provision of the Tallinn Manual: firstly, due to the anonymity of users, it will be difficult to distinguish between a cyber intelligence officer and a cyber spy in practice. Secondly, due to the difficulties in establishing clear state borders in cyberspace, including due to the use of blockchain and VPN technologies, in practice it is impossible to reliably establish whether secret information was collected on the territory of the enemy, which, in turn, leads to difficulties in qualifying such an act as cyber espionage. Finally, in the context of modern armed conflicts, espionage has ceased to be a phenomenon exclusively of international armed conflicts, and therefore it is likely that cyber espionage can be carried out not only in the context of an international armed conflict, but also in the context of a non-international armed conflict. Based on the results of this research, suggestions were made to develop state practice on this issue. It is desirable that States raise the discussion of the above issues at the UN General Assembly, which would help to identify the main trends in the development of such practices. Only And only after the practice of States on this issue becomes more obvious, the question of developing an appropriate international treaty, preferably within the UN, can be raised.

Applying Humanitarian Law: A Review of the Legal Status of the Turkey–Kurdistan Workers’ Party (pkk) Conflict

Abstract This article assesses the applicability of the criteria for non-international armed conflict to the situation in South-Eastern Turkey. It demonstrates that the Kurdistan Workers’ Party (also known as the pkk), as a party to the conflict, fulfils the three main criteria laid down in conventional international humanitarian law and developed by indicative factors in international jurisprudence for assessing the existence of a non-international armed conflict in the context of Common Article 3 to the 1949 Geneva Conventions: being an organised armed group, having the ability to engage in ‘protracted violence’, and complying with law of armed conflict. It establishes that the pkk qualifies as an organised armed group under responsible command and has the operational ability, structure and capacity to carry out ‘protracted violence’, to respect fundamental humanitarian norms of international humanitarian law and to control territory. The article also ascertains that Turkey is clearly bound by the provisions of the four Geneva Conventions of 1949, including Common Article 3, and customary international humanitarian law. Accordingly, it concludes that the conflict between the pkk and the Turkish security forces qualifies as a non-international armed conflict within the meaning of both Common Article 3 and customary international humanitarian law.

Pravni režim međunarodne humanitarne pomoći u oružanim sukobima

The legal regime of international humanitarian assistance provided during armed conflicts is based on several general legal principles. They are guiding principles that apply in all circumstances and situations, regardless of the nature of the armed conflict. The first principle entails that the state has primary responsibility to ensure that the basic needs of population under its jurisdiction are met during the armed conflict. The second principle, closely related to the first one, is the principle that third countries and international humanitarian organizations may offer assistance if a party to the conflict fails to undertake its duty to provide supplies necessary for the survival of the population. The next principles calls for the consent of all concerned parties in the provision of humanitarian assistance, as well as the duty of the parties to the conflict and all third countries to approve and facilitate the unimpeded passage of aid. The last principle is that staff involved in relief operations must be respected and protected. In addition to these general legal principles, international humanitarian assistance is regulated by a dozen of special rules covering various aspects of providing international humanitarian assistance during armed conflict. These rules are the result of a compromise between efforts to provide the vulnerable population with the necessities of life and a demand to protect the sovereignty of all parties to the conflict, but particularly of the state in which the aid is being sent. There is a difference between the rules governing humanitarian aid operations in international armed conflicts and the rules applicable in non-international conflicts. The first group of rules is far more numerous; they regulate in detail the issues related to relief actions, including the conditions for passage, delivery and distribution of consignments, the types of goods and services that can be sent, the category of persons who they are intended for, the position of the personnel engaged in these operations, and the technical conditions for implementing these rules. As regards non-international armed conflicts, the rules on humanitarian assistance are fewer, shorter and more general. These scarce rules are sometimes vague, and they mainly come down to the principle of humane treatment and the right of international humanitarian organizations to offer their assistance. Given that non international conflicts are the predominant form of armed conflict today, there is a strong tendency to extend the application of codified rules of international law governing the provision of humanitarian assistance to these conflicts. The practice of respecting almost all codified rules governing the provision of humanitarian assistance in modern armed conflicts and its wide acceptance by states and other participants confirms that the rules of customary International Humanitarian Law created in this area are applicable in both international and non-international armed conflicts.

Reflections on the legality of attacks against the natural environment by way of reprisals

The paper examines the concept of belligerent reprisals and assesses the legality of attacking the environment by way of reprisals. The law of belligerent reprisals, which is linked to the principle of reciprocity, allows one belligerent State unlawfully injured by another to react by means of what under normal circumstances would constitute a violation of the jus in bello, so as to induce the violating State to comply with the law. The instances of lawful recourse to reprisals have been considerably limited, since their application is either explicitly prohibited against certain protected persons and objects, including against the natural environment, or is subject to stringent conditions according to customary International Humanitarian Law (IHL). Despite its narrowing scope, the doctrine of reprisals remains a valid concept under the existing legal framework. For one, the state of affairs under customary international law with respect to reprisals directed at civilian objects (including against parts of the environment), subject to certain rigorous conditions, remains unclear. To complicate matters even further, any proposition on the status of reprisals in the context of a non-international armed conflict (NIAC) is shrouded in controversy, as there is no relevant treaty provision. In this regard, the present author endorses the approach espoused in the International Committee of the Red Cross (ICRC) Study on Customary IHL, namely to altogether prohibit resort to reprisals in the context of a NIAC. Turning to the status of reprisals against the natural environment under customary IHL, it is argued that a prohibition of attacks against the natural environment by way of reprisals is in the process of formation with respect to the use of weapons other than nuclear ones. All things considered, the International Law Commission (ILC) was confronted with an uncomfortable situation in the context of its work on the ‘Protection of the Environment in Relation to Armed Conflicts’. By sticking to the verbatim reproduction of Article 55(2) of Additional Protocol I, the ILC chose the proper course of action, since any other formulation would not only undercut a significant treaty provision, but might also result in the normative standard of conduct being lowered.

Post-Mortem Protection of Human Dignity

After a long development, Rome Statute represents a codification of customary international humanitarian law. Despite of her own national history with respect to war crimes, Germany finally promotes prosecution of offences against crimes as set forth by the Rome Statute through national authorities based upon the German Criminal Code of Crimes against International Law which mirrors the Rome Statute. Desecration of dead adversaries has become outraging practice in armed conflicts of international and non-international character. The German Federal Supreme Court of Justice in its case law has stated the criminal illegality of such wrong-doing by not only referring to the Rome Statute, but either implementing international case law when it comes to desecration of corpses according to Section 8 paragraph 1 No 9 of the German Criminal Code of Crimes against International Law.

Bridging the Accountability Gap

Abstract During non-international armed conflict, war crimes often go unpunished in areas where state authorities are unable to enforce the law. While states are under a customary law obligation to investigate and prosecute war crimes committed on their territory or by their nationals, the Customary International Humanitarian Law Study of the International Committee of the Red Cross has not found that this obligation extends to armed non-state actors (ANSAs). Nevertheless, command responsibility requires the individual commander to punish their forces in case war crimes have been committed and a growing amount of state practice demanding similar commitments — both legally and politically — from these actors as such can be observed over the past two decades. Indeed, ANSAs routinely impose penal sanctions onto their subordinates and often establish judicial structures in order to do so. This article argues that whereas ANSAs should be under some form of obligation to ensure accountability, alternative solutions to makeshift courts and penal proceedings might be better suited to prevent impunity and maintain fair trial guarantees.