Continuing the preceding discussion, this chapter addresses the subject of protecting political prisoners. This topic is more difficult for an outside analyst to understand given the lack of public information about the details of the subject. The author believes that the organization in general, particularly through its varied field operations, continues to pursue the subject with consistency, even if without major breakthroughs known to the public. There are probably achievements here and there, as new agreements are quietly reached, or existing visits expanded. Field offices and the protection unit in Geneva do stay busy on the subject, even if it seems that certain high officials have not prioritized the subject. Attention is given to the relation between assistance and traditional protection. Also important to understand is the “all prisoner” approach by the ICRC, and whether this broad scope is sustainable – and does or does not lead to progress in protecting political (and conflict) prisoners.

In addition to summarising the main findings of the book, this final chapter offers some reflections on the lessons that emerge from the history of the international tobacco control lawfare. The reflections are organised around the two main themes of the book: lawfare (Section 5.1) and evidence (Section 5.2). The first part offers some thoughts on the value of using ‘lawfare’ as an analytical tool, zooming in on the role of business actors in international regulation (Section 5.1.1) and on a reflexive account on one’s research (Section 5.1.2). The second part summarises the main topics related to evidence that have emerged in the book: the different types of evidence in risk assessment and risk management (Section 5.2.1), international law’s overreliance on evidence (Section 5.2.2), evidence as a weapon (Section 5.2.3), and evidence as an ideological battleground (Section 5.2.4).

This chapter begins to examine one of the important arguments by some critics, namely that ICRC activities have become so broad and sprawling that it has lost its status as an expert actor on the laws of war (both legal development and implementation), along with protection of political prisoners. The chapter first reminds the reader that there is no binding authority above the ICRC; hence, the ICRC governing board decides how to interpret its mandate or basic role – which essentially dates from 1930. In deciding what humanitarian subjects should be addressed by the ICRC, one of the most important is taking humanitarian assistance beyond immediate relief to include a type of development or early recovery. The author finds the direction of this policy commendable but without clear limits. The dividing line between humanitarian recovery and political development remains uncertain. That line seems to lie more in the realm of subjective labelling than objective and definable facts. The distinction is often controversial as in contemporary Afghanistan and Syria, among other places.

This chapter continues to examine the critics’ complaint that the modern ICRC has become distracted from its previous areas of expertise through its expanded activities in “other violence,” arguably neglecting in relative terms international humanitarian law and political prisoners. This chapter addresses the organization in the context of IHL. The chapter’s original contribution, beyond the way the background information is presented, is to analyze recent ICRC activity on two IHL subjects: customary IHL; and cyber warfare. On the first, the author finds the ICRC study on customary IHL absolutely central to recent developments, which fits with other third parties who find the ICRC “authoritative” in this legal domain. On the second, cyber warfare, the author finds the ICRC active, involved, and very much au courant about emerging developments. Neither aspect of IHL has been ignored or forgotten.

The author concludes, first, that the ICRC is not in fatal decline, especially given its continued sizable budgets (even if reduced) and relatively new financial supporters, such as the World Bank. ICRC leaders and many staff continue to have good high-level contacts with important policymakers around the world, these latter often approaching the president and other officials for discussion of pressing topics. The ICRC is often consulted within the United Nations, including in the Security Council. However, there is much to discuss about the precise nature of ICRC diplomacy. Does it stay in its humanitarian lane as strictly humanitarian and Dunantist? Or, as some critics maintain, does it wander too far afield when it should be more focused on traditional issues?

Chapter 3 analyses how evidence has become a central element of the FCTC regime (2005–present). Section 3.1 captures the most important developments since the conclusion of the FCTC in 2003. Section 3.2 provides the theoretical framework of the chapter, focusing on the concept of path dependence in international organisations. Section 3.3 proceeds by showing that the development of the guidelines by the FCTC Conference of the Parties (COP) has been in effect a continuation of the strategy on evidence. Section 3.4 in turn highlights the second facet of the FCTC as an evidence-based regime, that is how the FCTC has mobilised new evidence at the national level. Sections 3.5 and 3.6 reflect on the consequences that the evidence-based approach has had on the outlook of the FCTC regime. Section 3.5 uses in-depth qualitative analysis to demonstrate that the evidence-based approach has reinforced the importance of the expertise of civil society organisations. Finally, Section 3.6 illustrates how the evidence-based approach has started to show its shortcomings in the work of the FCTC COP – particularly in the approach to new products like e-cigarettes (or ENDS) and in the (lack of) development of strategies to foster the implementation of tobacco control measures.

The creation of the International Criminal Court (ICC) is a game changer in the relationship between conflict resolution and the pursuit of accountability for mass atrocities. No longer must wars end before international criminal justice is pursued. But the ICC’s forays into situations of ongoing hostilities have not been kind to perceptions of the Court’s role in contributing to peace or in-conflict accountability. Twenty years after its creation, there are signs that the ICC is increasingly reluctant to target individuals engaged in ongoing wars. This chapter illustrates how perceptions of the ICC have been undermined by its forays into active conflicts and how this has resulted in an apparent reluctance to pursue active belligerents. Reflecting on the future of justice in conflict, it also examines what the Court can do to ameliorate perceptions of its impacts on peace and how to build stronger cases against alleged perpetrators involved in active wars.

It is clear that, under customary international law, the state that has suffered an armed attack must request aid before other states can provide it with that aid in the exercise of collective self-defence. There are a range of factors that need to be considered that do (or, at least, may) have a bearing on the ‘validity’ of that request. This chapter analyses perhaps the most controversial of them: the question of who can issue a collective self-defence request. In so doing, it examines the view that only states can request aid in collective self-defence and, indeed, further asks whether the issuer of the request must be a UN member. The bulk of the chapter then examines how one identifies the de jure government of the state for the specific purpose of issuing a collective self-defence request. A traditional reference point for the recognition of governments in international law generally has been the effective control of territory. However, this is of minimal – if any – importance to the identification of the entity that can request aid in collective self-defence. Instead, other factors, such as democratic and constitutional legitimacy, are of greater importance.

Self-defence is a crucial feature of international law, amounting as it does to the only lawful basis for the unilateral use of military force in the modern world.1 It is not surprising, then, that a vast literature has developed regarding the nature and parameters of the exercise of self-defence in international law.2 However, there has been relatively little consideration of the specific concept of collective self-defence. This is true not just in scholarship3 but also in terms of the way that states discuss or debate self-defence in a general sense.4 Marginalisation of the topic in this way perhaps has been due to the common perception that collective self-defence was effectively ‘invented’ by the drafters of the United Nations (UN) Charter,5 and the view that states have exercised it only very rarely since.6