Civilians can be protected by eradicating and reducing the availability of weapons that would harm them. While international humanitarian law and international human rights law regulate the use of weapons, international disarmament law outlaws weapons entirely, notably those which tend to have indiscriminate effects and thereby are particularly dangerous for civilians. This chapter considers how anti-personnel mines, cluster munitions, and chemical weapons have been outlawed by dedicated disarmament treaties. It also considers how the UN Arms Trade Treaty regulates and restricts the transfer of almost all conventional weapons.

Chapter 4 first analyzes how Article 13 was dealt with during the drafting of the Convention. A central conclusion is that the drafting does not explain the Court’s timid development of Article 13 in early years and that it, rather, may provide support for a further development of Article 13 in the present. The chapter then describes how the number of cases concerning Article 13 has increased in tandem with the general rise in the Court’s case law and how, in more recent years, the Court actually considers whether Article 13 has been violated, in addition to substantive Articles. However, the Court rarely explains why this is necessary. This makes it difficult to distinguish between similar remedial requirements arising under both Article 13 and substantive Articles. However, as the chapter explains, this could be necessary in order to underline specific remedial purposes and to avoid undercommunicating remedial goals, most notably achieving sufficient redress, but, also, procederual requirements necessary in order to ahcieve redress. The chapter, also, provides a more detailed overview of how Article 13 has been dealt with in conjunction with substantive Articles.

The North Atlantic Treaty Organization (NATO) Policy for the Protection of Civilians was adopted in 2016. In 2021, NATO further adopted the ‘Protection of Civilians Allied Command Operations Handbook’, an additional document aimed at advancing the PoC agenda within the Organization. NATO’s aerial intervention in Libya was indirectly authorised by the UN Security Council under Resolution 1973 with the use of force specifically authorised to protect civilians. It remains the most controversial operation NATO has yet mounted – even NATO Member Germany had abstained from voting in favour of the resolution – and is considered to have politicised the notion of the protection of civilians.

International criminal justice has emerged as a central tenet of the United Nations (UN) system in the post–World War II era. The decision by Allied Forces to prosecute senior political and industrial leaders of Nazi Germany ushered in a new era of international law.3 As Crawford aptly argued, ‘It is not too much of an exaggeration to say that the United Nations era began with a trial and a promise.’4 The trial was the Nuremberg Tribunal, and the promise was that the principles underpinning the Nuremberg Charter were treated as international law.5,6 By introducing a new body of international criminal law, the Nuremberg Charter ‘reached deep’ into traditional notions of State sovereignty, including the laws that governed immunity.

This chapter investigates how de facto international prosecutors attempted to extend the reaches of international criminal law to senior members of the Syrian government, as and while the alleged crimes were continuing. Unlike Garcés and Guengueng, in this case study, de facto international prosecutors started collecting material, which links suspected senior leaders to underlying crimes, during a period when the alleged crimes were being perpetrated. The chapter starts with the Chief Investigator for Syria (hereafter Chief Investigator 1),1 a Syrian lawyer from the southern governorate of Dara’a.2 Chief Investigator 1 would later become one of the founding members of the Commission for International Justice and Accountability (CIJA). Before the Arab Spring, Chief Investigator 1 had relocated abroad working in civil law. But after large-scale protests erupted all across Syria in March 2011, in response to the arrest and torture of schoolchildren from Dera’a, he returned to his home state.

The previous three chapters focused primarily on the role of private non-State actors who act as de facto international prosecutors, with particular emphasis on victims and witnesses of core crimes. This chapter directs our attention to the role of State legal officials in foreign courts who act as de facto international prosecutors and situates them in a particular historical, political and legal context. Specifically, it examines the evolution of German universal jurisdiction, in light of the atrocities committed by the German Third Reich and the legacy of the Nuremberg Trials. As noted earlier in Chapter 1, the Nuremberg Charter and Nuremberg Tribunal marked a turning point in international criminal law. While Germany continues to address past atrocities in various ways, one of them was to champion the role of international criminal law universally, which saw Germany emerge as one of the broadest universal jurisdictions in the world.

This chapter outlines a conceptual framework for how de facto international prosecutors implicitly or explicitly conceptualise international criminal law. As reflected in the previous chapters, de facto international prosecutors represent a broad array of experiences, knowledge and expertise. They include private non-State actors, particularly witnesses and victims of core crimes, but also human rights advocates, investigators, analysts and international prosecutors with previous experience on international criminal tribunals, amongst others. Indeed, as described in Chapter 1, they can also share more than one identity: they can be a witness and victim of core international crimes, as well as a practitioner of international criminal justice. De facto international prosecutors also include State legal officials in foreign courts, such as police, public prosecutors, and judges. All have adopted some or all of the practices or tasks of the offices of international prosecutors (Chapter 1).

This chapter investigates how de facto international prosecutors, including those inspired by the indictment against Pinochet, played an essential role in extending the reaches of international criminal law to Hissène Habré, former president of Chad. Indeed, Habré was later referred to as the ‘African Pinochet’.1 Both local and international private non-State actors drew upon the lessons learned from the ‘Pinochet precedent’,2 as well as the Nuremberg Tribunal, and implicitly attempted to adapt and innovate practical tasks and processes ordinarily associated with offices of international prosecutors. As in the previous chapter, witnesses and victims of cores crimes played an essential role as de facto international prosecutors. This chapter begins with Souleymane Guengueng, a victim and witness to core crimes perpetrated under Habré’s dictatorship. It explores how and why Guengueng, and other victims of Habré’s violent repression were instrumental in initiating an investigation into Habré. Unlike Juan Garcés, Souleymane Guengueng never studied law or politics.

This chapter investigates how de facto international prosecutors, particularly private non-State actors, played an essential role in extending the reach of international criminal law to Augusto Pinochet, former president of Chile. The chapter starts by introducing Juan Garcés, a private non-State actor and witness to the earliest crimes of the Pinochet government in Chile. On 11 September 1973, General Augusto Pinochet launched his US-back coup against the Allende government and, with it, a campaign to brutally suppress democratic opposition. As a presidential advisor, Garcés was in the presidential palace with Salvador Allende, incumbent president of Chile, the day Pinochet attacked the palace. Much later, when Garcés had returned to his native Spain, he began an investigation into Pinochet for crimes against humanity as a private non-State actor and on behalf of Pinochet’s victims.

In contrast to the practical focus of Part II of this book, Part I, composed of this chapter, proposes a theoretical framework for how de facto international prosecutors extend the reaches of international criminal law. Part II provides the empirical account of how and why de facto international prosecutors, particularly witnesses and victims of core international crimes, adopt the practical tasks required to hold a senior leader suspected of core crimes accountable in foreign or international courts. The theoretical framework outlined in this chapter is an attempt to answer the following questions: what dynamics and mechanisms can we observe and theorise as effective or not (beyond these actors’ own legal interpretive work) in pursuing accountability? How (or when) do particular interpretations of international law ‘win out’ over others in court judgements? The chapter also serves to further define and conceptualise de facto international prosecutors and the international legal order within which they operate.