How international law applies to the use of information and communications technology by States is still a matter of discussion. Against this background, cyberspace has become the main area of competition between States, and this competition, to put it simply, is resulting in a constant low-intensity warfare below the threshold for a use of force. Such low-intensity cyber warfare, from a legal point of view, revitalizes the debate over the concept of a “state of intermediacy” that has the potential to overcome the dichotomy between peace and war. In the present author's opinion, this state of intermediacy also supports the idea that the international humanitarian law (IHL) principle of distinction should be applied, even before the eruption of a full-scale war, whenever wartime means and capabilities are employed by States. This paper argues that some opacities in international law have created favourable conditions for such constant low-intensity warfare, and that tackling the identified opacities would therefore be beneficial in order to achieve a more peaceful cyberspace. Thus, the paper goes on to address one of the identified opacities, namely the definition of espionage under international law, because, as international law now stands, it does not allow us to tackle the other identified opacities. Finally, the paper discusses how the proposed narrow interpretation of espionage can cope with the IHL principle of distinction in the cyber domain.

Newly emerging US cyberspace warfighting concepts highlight the need to update US legal doctrine. Concepts adapted to future high-intensity, high-paced armed conflict, including command post dispersal and integration of cyberspace into other targeting domains, present opportunities to refine US understandings of the law of war attack threshold and overlooked rules applicable to destruction and seizure. The advantages of staking out clear and current opinio juris on these and other matters extend beyond providing responsible and consistent operational law advice. Updated and authoritative military cyber legal doctrine will serve the strategic and diplomatic legal interests of the United States and the international legal system as a whole.

Contemporary armed conflicts have increasingly been accompanied by belligerents’ calls for civilians to support their military efforts. This article investigates the legal consequences of civilians taking up arms provided by or with the tacit support of the State. It first looks at the implications of civilian involvement from the perspective of a State's international humanitarian law (IHL) and international human rights law obligations, focusing on removing civilians from the vicinity of hostilities, informing and training civilians on the implications of directly participating in hostilities, and respecting and ensuring respect for the law. It then demonstrates that the broader fabric of public international law is tested when civilians are encouraged to engage in hostilities, through a close analysis of the challenge of attributing civilian acts to the State. The article closes with practical recommendations for States to ensure that they uphold their humanitarian and human rights obligations, and to render the law of international responsibility effective when civilians commit systemic violations of IHL.

International humanitarian law (IHL) provides the normative foundation for efforts to address the issue of missing persons during and after armed conflict. Whilst IHL does not engage with how parties to an armed conflict may go about restoring peace, there has been speculation that resolving the missing issue, by bringing answers to families about the fate and whereabouts of their missing relatives, can potentially play a role in building peace. This article represents an effort to compile existing evidence in academic and practice literature that supports an understanding of how addressing the missing issue relates to peacebuilding. In so doing, the article seeks to lay out a research agenda to understand how addressing the issue of the missing can serve to advance peacebuilding, and proposes avenues for further research.

With the advent of socio-technical systems that gather and process personal data, the capacity to identify and even locate people in an automated fashion has dramatically increased. This article discusses what militaries need to know about data protection and the right to digital privacy/private life when personal data is processed. The focus in this discussion is on sensitive data that makes individuals identifiable. It is here argued that the right to data protection and the right to digital privacy/private life are distinctive and separate rights and should be treated as such, despite some overlaps. Although the law of armed conflict approaches processing of sensitive data in a topical manner, it remains firm on the delimitation between what is permissible and what becomes unlawful when it comes to processing data. This article illustrates that elements of both data protection and protection of the right to privacy/private life can be traced in the law of armed conflict. In fact, both rights remain distinctive also in times of armed conflict and must be separately protected through obligations of result as well as obligations of conduct.

This article outlines and evaluates several unique challenges associated with legal support to special operations. It describes the essential differences between special tactics, techniques and procedures and conventional military operations. It offers a US perspective on how treaty and customary international laws apply to various special operations, including precision attacks against “high-value targets”, hostage rescue missions, and support to partner and proxy forces. It examines the benefits and drawbacks of heavy reliance on special operations during armed conflict, including an assessment of the legal challenges that arise when special operations forces become a primary feature of a military campaign. Finally, it highlights how the assumption of substantial military and political risk impacts the application of international law to special operations at the tactical level.

This article aims to highlight the importance of determining the temporal scope of the transition from armed conflict to peace. It will also consider the emergence of a new legal paradigm, jus post bellum, applicable to the post-conflict period, and the associated need for an appropriate regulatory framework. Given the unavoidable impact of armed conflict, the post-conflict period deserves particular attention, especially with regard to the need for a legal framework to facilitate the sustainable reconstruction of communities torn apart by conflict and ensure a lasting peace. After any kind of armed conflict, a solid legal framework is essential to finalize the end of hostilities, begin a sustainable peace process, build a united society and address the rifts caused by armed violence.

When do non-international armed conflicts (NIACs) end? Determining the existence of a NIAC requires a detailed, fact-intensive inquiry. Since the International Criminal Tribunal for the Former Yugoslavia's seminal decision in the Tadić case, international courts and tribunals have evaluated the existence of NIACs under the Tadić test's two-pronged inquiry into intensity and organization. Although that decision also pronounced that international humanitarian law (IHL) continues to apply until a “peaceful settlement is achieved,” neither international tribunals nor scholars have articulated a comparably widely accepted and well-developed test for determining the end of NIACs.

At the same time – and especially since 9/11 – States have increasingly relied on IHL to meet the threat posed by non-State actors, broadening the scope of conflict-related liabilities in armed conflict without conferring the privileges or immunities otherwise inherent in IHL. This one-sided approach twists the purpose of IHL and places members of organized armed groups into legal black holes without temporal limitations, as States resist the termination of “armed conflict” irrespective of the continuing intensity of violence or the level of organization of non-State actors. Ultimately, the current approach gives States broad discretion without appropriate safeguards, which undermines the proper application of human rights and humanitarian principles within conflict and prevents the establishment of a sustainable peace.

This paper argues that the most appropriate test for ascertaining the end of a NIAC is one that combines objective consideration of the diminution of organized and intense hostilities below the Tadić threshold with the likelihood that hostilities will not again rise above that threshold. It thus draws from but does not fully endorse the preferred approach of the International Committee of the Red Cross (ICRC), which focuses on the lasting termination of hostilities,1 while abjuring a general temporal limitation. Although commendable for its effort to avoid the legal uncertainty that attends the revolving conflict classification problem, the ICRC's approach unfortunately tends to encode existing uncertainty surrounding the termination of NIACs and to indistinctly prolong the application of IHL to erstwhile conflict situations. In contrast, the authors suggest that a test for the end of NIAC based on a specific period (five months following the diminution of organized and intense hostilities below the Tadić threshold), subject to an evaluation of the risk that those hostilities may resume, better balances certainty of legal application with the promotion of a return to peace. The authors will employ the facts of diverse case studies, including the FARC in Colombia, the LTTE in Sri Lanka, numerous armed groups in Mali, and the United States with Al-Qaeda, to build a legal standard that courts can use to determine IHL's continuing applicability to an erstwhile armed conflict.

Neutral States must abstain from supporting a party to a conflict with military equipment and assistance. This core aspect of the law of neutrality has not changed with the adoption of the UN Charter in 1945, or with the brutal Russian aggression against Ukraine. That said, by reviewing the changes to neutrality law over time, this article finds plausible reasons to believe that neutrality has – for better or worse – become optional for the vast majority of States, which can today opt to be non-belligerent States – i.e., States that are neither neutral nor parties to the armed conflict. All States have to cooperate to bring to an end serious violations of international law, including humanitarian law, and this duty of cooperation has abolished “sitting-still neutrality”, but it does not render neutrality law moot. This reading of “optional but not qualified” neutrality maintains the core neutrality idea of abstaining in military matters. In this article, I argue that views of “obsolete” or “qualified” neutrality are not new at all but depart from well-accepted rules of legal interpretation and raise concerns about double standards. Viewing neutrality as optional but unqualifiable offers greater conceptual clarity, is more honest than alternative views, and comes with advantages for humanitarian action.

Three decades after the United Nations Security Council invoked its Chapter VII powers to create the ad hoc criminal tribunals, there can be little doubt that the prosecution of individuals responsible for serious violations of international humanitarian law (IHL) contributes to restoring and maintaining peace. While there is little doubt that the reparatory function of justice is just as crucial as retribution, under international law today, reparations for IHL violations remain harrowingly insufficient or borderline non-existent. In scholarship and strategic litigation, various attempts have been made to distil an individual right to reparations from black-letter IHL. This article argues that such approaches are doomed to fail, as procedural aspects of international obligations rarely, if ever, emerge through the evolution of an existing customary international obligation, let alone via the crystallization of a new customary international norm. They are usually triggered by a political shift that makes States adopt novel regulations setting forth the jurisdictional ramifications of enforcing a pre-existing right or obligation. This article thus advances a two-fold argument. First, it asserts that States’ increased compliance with the obligation to provide compensation for violations of IHL attributable to them would contribute to “the restoration and maintenance of peace” just as much as the prosecution of persons responsible for serious violations thereof. Second, it argues that the individual right to claim reparations for IHL violations can only be established through a political decision of States, and that the establishment of an international mechanism for Ukraine might be an important precedent for the evolution of the current international system.

Does targeting combatants really provide a military advantage during an armed conflict? The limitations on the use of force against civilians and means and methods of warfare are well developed under contemporary international humanitarian law (IHL), but the issue of targetability of adversary combatants remains underdeveloped. This paper builds on contemporary developments in international human rights law and moral just war theory to offer a revised lex ferenda look at the basic principles of IHL through the internalization of the value of the lives of combatants. It is argued that such a reading of IHL would allow for a rejection of the automatic necessity of targeting combatants, and hence give due consideration to the value of life of combatants (both adversary combatants and own combatants) in the evaluation of the use of force during armed conflicts, including through reduced military advantage, force protection, and adjusted proportionality analysis.

One of the four core humanitarian principles, impartiality's substantive ethical and deeply operational nature directs aid agencies to seek and deliver aid on the basis of non-discrimination and in proportion to the needs of crisis-affected people. Designed to operationalize the principle of humanity, impartiality is challenged by a plethora of external factors, such as the instrumentalization of aid, bureaucratic restriction, obstruction by States or non-State armed groups, and insecurity. Less visible and less examined are factors internal to aid agencies or the sector as a whole. Based on a desk review of the literature and the authors’ experience working with Médecins Sans Frontières, this article explores shortcomings in how the humanitarian sector understands and operationalizes impartiality, placing the focus on these internal factors.

Beginning with the definition of impartiality, the article focuses on inadequacies in the practice of impartiality's twin pillars: non-discrimination and proportionality in the delivery of aid. Key conclusions include the necessity of an active rather than passive approach to non-discrimination, and the need for greater commitment to proportionality. In extending this analysis, the article looks more deeply at how aid organizations approach the humanitarian principles, identifying shortcomings in the way that the sector operationalizes, engages with and evaluates those principles. Given the sector's limited inclusion of or accountability towards people in crisis, its exercise of impartiality seems particularly problematic in relation to its power to decide the who and what of aid delivery, and to define the needs which it will consider humanitarian.

The objective of this article is to reset humanitarians’ conceptual and operational understanding of impartiality in order to better reflect and protect humanity in humanitarian praxis, and to help humanitarians navigate the emergent challenges and critical discussions on humanitarian action's position in respect to climate change, triple-nexus programming, or simply a future where staggering levels of urgent needs vastly outstrip humanitarian resources.

The notion of solidarity, although not new to the humanitarian sector, has re-emerged in recent discussions about effective and ethical humanitarian action, particularly in contexts such as Ukraine and Myanmar where the traditional humanitarian principles have been facing certain pressures. Because solidarity appears as a good but can also involve selectivity and privilege, and because it risks continued militarism and normalization of civilians participating within that militarism, the notion of solidarity merits rich and rigorous thinking. This article explores how the notion of solidarity is being utilized by those currently re-emphasizing its importance and what it might mean in practice in today's humanitarian contexts. The article argues that if solidary action involves not only a political stance but solidary working methods, the recent calls for solidarity demand respect for the variety of principles and practices within the humanitarian ecosystem, while nevertheless upholding mutual obligations owed within that professional community – that is, within careful limits as to what is considered humanitarian action.

International humanitarian law (IHL) does not address business entities, except in situations where they directly participate in hostilities, and there is no reference to business actors in the International Committee of the Red Cross's recent Guidelines on the Protection of the Natural Environment in Armed Conflict. Yet, there has been an increasing reaffirmation of specific “duties”, “obligations” or “responsibilities” imposed on private companies operating in conflict zones. For instance, the UN Guiding Principles on Business and Human Rights suggest that business entities should respect IHL rules in addition to human rights during armed conflicts, and the third revised draft of the international legally binding instrument on transnational corporations and other business enterprises refers to IHL as an interpretative framework of human rights obligations of States and businesses. The International Law Commission's 2022 Draft Principles on the Protection of the Environment during Armed Conflicts are even more specific, providing that corporations should exercise due diligence concerning the protection of the environment when acting in conflict-affected areas. However, these references to IHL as applicable to business activities remain vague and lack elaboration. This paper intends to close this gap by clarifying whether and, if so, the extent to which IHL imposes environmental obligations upon private companies in conflict situations. It submits that business entities bear environmental duties during armed conflicts deriving from IHL rules and other complementary sources of international law. The paper further discusses the content of the obligation of business entities not to harm the environment as well as their due diligence obligation.

To encourage further interrogation of the language of “survivor-centredness” in the field of conflict-related sexual violence, this article offers a case study of efforts to build and intensify more survivor-centred pedagogy for use in the training of humanitarian workers seeking to address sexual violence in conflict and emergency settings. Set against the backdrop of a literature review of existing usages, it builds on key aspects of an earlier evaluation in which all three authors were involved in different capacities.

This article seeks to demonstrate the nexus between agent-related technology and the protection of the environment in armed conflicts, looking at how agent-based modelling and simulation (ABMS) can be used as a tool to protect the environment in armed conflicts. It further analyzes the precautionary principle and due regard, as relevant rules, and explains the legal benefits of deploying ABMS to protect and preserve the natural environment. The article argues that the deployment of ABMS helps States to better understand the environmental effects of conflicts, reassess their military activities and comply with the relevant applicable rules and norms.

Aerial visuals play a central – and increasing – role in military operations, informing military decision-makers in real time. While adding relevant and time-sensitive information, these visuals construct an imperfect representation of people and spaces, placing additional burdens on decision-makers and creating a persuasive – yet misleading – virtual representation of the actual conditions on the ground. Based on interdisciplinary analysis of critical security studies, behavioural economics and international law literature, as well as rich data from US and Israeli military investigations into four military operations spanning from 2009 to 2021, this article identifies three types of challenges stemming from the mounting reliance on aerial visuals to inform military operations: technical challenges, relating to the technical capabilities and features of aerial vision technologies; cognitive challenges, relating to decision-making biases affecting human decision-makers; and human-technological challenges, relating to the human–machine interaction itself. The article suggests ways to mitigate these challenges, improve the application of the law of armed conflict, and protect people, animals and the environment during armed conflicts.

Protected areas safeguard biodiversity of global ecological importance, even throughout armed conflicts. The International Law Commission's Principles on Protection of the Environment in Relation to Armed Conflicts propose that certain ecologically important areas could be designated as protected zones during armed conflicts. This article uses a geospatial analysis of armed conflicts and Key Biodiversity Areas and three case studies to inform recommendations on how the protection of ecologically important areas could be enhanced through visibility, local actors and international stakeholders as part of a broader interpretation of a protected zone.

In the face of the triple planetary crisis, which includes climate change, biodiversity loss and environmental degradation, there is growing recognition that the environment needs to be re-evaluated and better protected. Recent developments, such as a values assessment by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES),1 the concept of biocultural rights and the acknowledgment of granting rights to nature, emphasize the intrinsic value of the environment and endorse the understanding of the interconnectedness between humans and non-human entities. These developments are also increasingly evident in legal frameworks; for instance, several domestic legal systems now accept the rights of nature and grant legal standing to natural entities. This expansion in our understanding of the environment challenges the traditional anthropocentric focus of international law, which has primarily prioritized human rights and interests, perceiving humans as having dominance over nature and the liberty to harness its resources. Simultaneously, international environmental law is increasingly recognizing the interdependence of ecosystems and species. This acknowledgment drives the promotion of approaches to environmental management and conservation that centre around ecosystems and local communities. The present article looks at how to reconcile these heightened environmental values and the legal norms in armed conflict by examining two examples: the safeguarding of protected areas and the restoration of the environment post-conflict. By analyzing the changing values and legal developments in this area, the article offers legal and practical tools to support the protection of nature's intrinsic value in future warfare.