The Iraqi High Criminal Court established to prosecute Saddam Hussein and other leading Ba'athists is one of the most visible of the current efforts to establish criminal accountability for violations of international norms. Juxtaposed against other tribunals, the High Criminal Court has provoked worldwide debate over its processes and its prospects for returning societal stability founded on respect for human rights and the rule of law to Iraq. This article explores in detail the legal basis for the formation of the High Criminal Court under the law of occupation. It addresses the relationship between the Iraqi model of prosecuting crimes in domestic fora incorporating international law and the alternative model of transferring jurisdiction to an international forum. The controversial aspects of the Iraqi model are considered, such as the legitimacy of its creation, the revocation of official immunity, the procedural fairness of the Statute in the light of international norms, and the substantive coverage of what some have termed an internationalized domestic process. The author concludes that accountability for international crimes is one of the unifying themes that should bind humanity in common purpose with the Iraqi jurists as they pursue justice in accordance with international norms.

Present-day international humanitarian law has grown from two main sources: the Law of Geneva, i.e. a body of rules which protect victims of war, and the Law of The Hague, i.e. those provisions which affect the conduct of hostilities. The author examines the different policies which are behind these two branches of international humanitarian law and traces their history up to the 1974-1977 Diplomatic Conference which, by adopting Additional Protocol I, brought about their convergence. While the ICRC undoubtedly gave rise to the Law of Geneva, its contribution to the development and implementation of the Hague Law has been less explicit. The author argues that any involvement in humanitarian law today implies a concern for both domains, which now are inseparable parts of modem international humanitarian law.

This article looks at the tension between principles and politics in the response to the Afghan crisis, and more specifically at the extent to which humanitarian agencies have been able to protect themselves and their activities from overt instrumentalization by those pursuing partisan political agendas. After a short historical introduction, it focuses on the tensions around the issue of ‘coherence’ – the code word for the integration of humanitarian action into the wider political designs of the United Nations itself and of the UN-mandated military coalition that has been operating in Afghanistan since late 2001. The article ends with some more general conclusions on the humanitarian–political relationship and what Afghanistan ‘means’ for the future of humanitarian action.

In view of the challenges frequently encountered in providing assistance to civilians in opposition-held territories, consideration is sometimes given to cross-border relief operations. Such operations raise numerous legal questions, including whose consent is required; what constitutes arbitrary withholding of consent; what the consequences of withholding of consent are, both for those wishing to provide assistance and for the parties withholding consent; and what alternatives exist for providing assistance in such circumstances.

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 2008, 260 humanitarian aid workers were killed or injured in violent attacks. Such attacks and other restrictions substantially limit the ability of humanitarian aid agencies to provide assistance to those in need, meaning that millions of people around the world are denied the basic food, water, shelter and sanitation necessary for survival. Using the humanitarian crises in Darfur and Somalia as examples, this paper considers the legal obligation of state and non-state actors to consent to and facilitate humanitarian assistance. It is shown that the Geneva Conventions and their Additional Protocols, as well as customary international law, require that states consent to and facilitate humanitarian assistance which is impartial in character and conducted without adverse distinction, where failure to do so may lead to starvation or otherwise threaten the survival of a civilian population. This paper considers whether this obligation has been further expanded by the development of customary international law in recent years, as well as by international human rights law, to the point that states now have an obligation to accept and to facilitate humanitarian assistance in both international and non-international armed conflicts, even where the denial of such assistance does not necessarily threaten the survival of a civilian population.

Of all the seven Fundamental Principles of the Red Cross and Red Crescent, neutrality and impartiality are perhaps the least well understood. They are often confused with each other and give rise to controversy. How can a National Society that is an auxiliary of the public authorities possibly be called neutral? Isn't neutrality sometimes synonymous with passivity or indifference? Can the ICRC regard itself as neutral when it points publicly to violations of international humanitarian law? Does impartiality mean sharing relief equally between the victims on both sides of a conflict? Is it possible to give humanitarian assistance to only one of the parties without violating the principles of neutrality and impartiality? These are questions that have occurred to every man and woman working in the International Red Cross and Red Crescent Movement.

The author commenced an earlier study of the 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (Conventional Weapons Convention) by quoting the late Sir Hersch Lauterpacht's remark: “If international law is, in some ways, the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law”. He then carried Lauterpacht's statement one stage further to suggest that the vanishing point of the law of war was most likely to be found in the body of law restricting the use of weapons. Shortly after writing these words, the author discovered that a colleague had also used the remarks of Sir Hersch and asserted that the vanishing point of the law of war was the law of air warfare. More recently, the author read a paper by a younger colleague in which Sir Hersch was quoted once again, but this time it was asserted that the vanishing point of the law of war was to be found in the body of law regulating nuclear weapons. The two lessons one might derive from this brief tale are that serious students of the law of war rarely have grandiose expectations for their discipline and that a good quotation is always reusable.

Based on her experience as a member of the South African and the Sierra Leonean truth and reconciliation commissions, the author formulates guiding principles and looks at the circumstances in which a truth and reconciliation commission constitutes an appropriate instrument to deal with transitional justice issues. The author also identifies possible contributions that truth and reconciliation commissions can make during a period of transition.

This article describes some of the challenges raised by multinational operations for the application of international humanitarian law. Such challenges are the result of different levels of ratification of treaties, divergent interpretations of shared obligations, and the fact that there is no central authority that determines who is a party to an armed conflict. The article discusses methods that have been developed to ensure ‘legal interoperability’. Some of these methods attempt to avoid situations where such interoperability is required. Where this is not possible, a ‘maximalist’ or a ‘minimalist’ approach can be taken, and in practice these are usually combined.

By introducing a new ‘debate’ section, the Review hopes to contribute to the reflection on current ethical, legal, or practical controversies around humanitarian issues. This section will expose readers to the key arguments concerning a particular contemporary question of humanitarian law or humanitarian action.

For this first debate, the Review asked two members of its Editorial Board, Professor Marco Sassòli and Professor Yuval Shany, to debate on the topic of equality of states and armed groups under international humanitarian law. Professor René Provost comments on this debate, adding a third dimension to the discussion.

The crucial question is whether it is realistic to apply the current legal regime to non-state armed groups. How can armed groups, with sometimes very limited means and low levels of organization, meet the same obligations as states? What are the incentives for armed groups to respect rules that their opponents have enacted? Why should they respect any rules when the very fact of taking arms against the state already makes them ‘outlaws’?

All participants in this discussion share an aspiration to ensure better legal protection for all those affected by armed conflicts. Professors Sassòli and Shany have agreed to present two ‘radically’ opposed stances, Professor Sassòli maintaining that equality should be reconsidered and replaced by a sliding scale of obligations, and Professor Shany rebutting this assertion. Professor Provost then reflects on the stances put forward by the two debaters and invites us to revisit the very notion of equality of belligerents.

The debaters have simplified their complex legal reasoning for the sake of clarity and brevity. Readers of the Review should bear in mind that the debaters actual legal positions are more nuanced than they may appear in this debate.

In both disasters and armed conflicts, domestic regulatory control over the entry and operation of international humanitarian relief operations can significantly affect their ability to address the critical needs of affected persons. The types of regulatory problems that arise, such as customs barriers, visa issues and taxation of aid, are often similar, but both the underlying dynamics and the applicable international law can be quite different. This article analyses these similarities and differences and suggests distinct steps that might be taken to move forward in the two contexts.

Sexual violence is prevalent in contemporary armed conflicts. International humanitarian law and human rights law absolutely prohibit all forms of sexual violence at all times and against anyone; international criminal law moreover provides for the individual criminal responsibility of sexual crimes' perpetrators. These three bodies of law importantly reinforce each other in this field. The discrepancy between the facts on the ground and the law is a matter of concern that cannot be explained by potential legal gaps or uncertainties. What is needed is to find new ways of improving implementation for existing laws at the domestic and international levels.

This article considers the key data protection challenges facing humanitarian organizations providing assistance to refugees, internally displaced persons and migrants. These challenges are particularly significant for several reasons: because data protection has come relatively late to the humanitarian sector; because humanitarian organizations are under pressure to innovate rapidly; because the global communications architecture on which many of these innovations depend is inherently vulnerable to State surveillance; and because States are deploying increasingly sophisticated and coercive means to prevent irregular forms of migration and/or subjecting humanitarian organizations to surveillance and disruption. The first part of the article outlines the fundamental rights challenges presented by contemporary data-driven migration control paradigms. The second outlines concerns about “data-driven humanitarianism” and “mass surveillance” to show how humanitarian organizations risk inadvertently exacerbating these problems. The third assesses specific data protection challenges that humanitarian organizations face and the policies and practices they have developed in response. The article concludes with some brief observations on the technical and political dynamics shaping their efforts to comply with their legal and ethical obligations, and calls for the sector to work together to extend data protection norms and outlaw cyber-attacks by State actors.

Gangs have long been considered a source of violence and insecurity, but they are increasingly identified as a cause of instability and a threat to the state. Yet gangs operate mainly in non-conflict settings, raising questions about whether applying a conflict lens to understand gangs is appropriate. Marked differences appear between armed groups and gangs when considering concepts of ungoverned spaces, the state, violence, and sustainability. Few gangs reach the threshold of posing a direct challenge to the state; this makes comparisons with other armed groups difficult and suggests the need for a more specific analytical lens.

In 2010, Pakistan was struck by devastating floods, the latest in a series of disasters to strike the country in recent years. As it had during the 2005 Kashmir earthquake, the Pakistan military played a significant operational and co-ordination role in the humanitarian response that followed. Its role raised important questions about civil–military relations between humanitarian actors and national (as opposed to international) militaries. This article looks at the interaction between the humanitarian community and the Pakistan military in responding to the 2010 floods in order to identify key successes and challenges. It also highlights a number of issues that emerged in the context of Pakistan but that may also be relevant to civil–military relations – particularly between the humanitarian community and the national military of an affected state – in other natural disaster and complex emergency settings.

Today there can no longer be any doubt: international humanitarian law and international human rights law are near relations. This oft-repeated observation must now be accepted by all. Many believe that the close relationship between these two areas existed and was perceived “from the outset”. That is not at all the case. Formerly assigned to separate legal categories, it was only under the persistent scrutiny of modern analysts that they revealed the common attributes which would seem to promise many fruitful exchanges in the future. Let us try to clarify the situation.

Water scarcity, accelerated by climate change, affects water availability and may threaten peace and security. This role of water, as a contributing factor for triggering wars, sheds light on the significance of the protection of water during armed conflict. Keeping water out of war not only contributes to preserving an indispensable natural resource for life but also serves as a tool for the hostile parties to start negotiations, building trust and peace.