This article outlines the ways in which the United Kingdom manages civil litigation concerning sensitive national security material. These are: (i) the common law of public interest immunity; (ii) the use of a closed material procedure and special advocates; and (iii) the secret hearings of the Investigatory Powers Tribunal. With these existing alternatives in mind the article analyses the background to, the reasons for, and the controversies associated with the Justice and Security Act 2013, enacted in the wake of the UK Supreme Court's 2011 ruling in Al Rawi v Security Service.

This article outlines the building blocks of transitional justice in democracies. Grounded in the premises of Historical Institutionalism, the article analyses the institutions and processes established and their effect on the outcomes. It offers a comparative analysis of two cases of transitional justice processes in democracies. These are the investigations of the disappearance of Yemeni children in Israel and the Indian Residential Schools Settlement in Canada. There are important similarities and differences between the two cases. In both settler societies the transgressions were part of aggressive assimilation policies directed at children in an attempt to wipe out the particular cultural influences of the children's family and community. In both cases, children were isolated from the influences of their ethnic group in order to be resocialised into the dominant culture. The dire consequences of both these were suppressed, denied and forgotten in official narratives. The different outcomes of these processes are explained by the differences in the intent to redress, the types of institution and the processes implemented.

The latest developments in the Middle East region are of great concern to the International Committee of the Red Cross (ICRC). The current level of violence, displacement and destruction in and around Syria is unprecedented in a region that has already suffered conflict and instability for most of its modern history. According to recent figures released by the United Nations (UN), over 100,000 people have died from the fighting in Syria; more than six million have been forced to flee their homes, including two million who have found refuge in neighbouring countries. This is putting an immense strain on host communities and governments.

This article departs from the normative assumptions about the status of militant democracy in transitional countries, while drawing on the constitutional appraisal of free speech and non-discrimination in Central and Eastern Europe during the period 1990–2012. It explores two models (‘American’ and ‘European’) of legal engagement with hate speech, targeting this recurrent constitutional theme to trace the militant in the transitional discourse on freedom of expression. The study scrutinises the legislative framework and the adjudication of the higher courts (constitutional, supreme and appellate courts) in three selected countries of Central and Eastern Europe – the Czech Republic, Hungary and Poland – in an effort to address the dearth of literature in the English language on hate speech laws and policies in these jurisdictions. The author concludes that the discourse on transitional democracy in this post-communist constitutionalism has been substantially constructed as a form of militant democracy, despite some visible influence of the American free speech narrative.

The Rome Statute of the International Criminal Court completely divests the Court of the power to compel a state to disclose evidence in its possession if the state opposes such disclosure on grounds of national security. If a state refuses to disclose information essential to the adjudication of a case on national security grounds, the ICC may settle fair trial concerns either by drawing factual inferences favourable to the defendant or by staying the proceedings. I argue, however, that in practice such judicial powers do not provide a sufficient guarantee of a fair trial. I propose to allay fair trial concerns arising from the refusal of states to allow the ICC access to evidence in their possession by introducing a reform in the exercise of the ICC's prosecutorial discretion. According to my proposal, the requirement of a fair trial, which entails the disclosure of material essential for the defence, would be incorporated into the criteria that guide the ICC Prosecutor in the selection of cases for prosecution. Although the present article focuses on the issue of national security evidence, the reach of the proposed reform extends to all cases of state refusal to allow the ICC access to evidence, regardless of the grounds for refusal.

In contrast with most other municipal courts in the world, the Israeli Supreme Court routinely decides cases based on international humanitarian law (IHL). Since the Six Day War in 1967, both the state and the Supreme Court have agreed that the Court has jurisdiction to decide humanitarian issues that come before it from territory held under belligerent occupation. The Court has indeed done so in issues ranging from land seizures to targeted killings, ruling on the basis of the relevant IHL. The Court has been criticised for its judgments, both from the right wing of the political spectrum, who see it as interfering with military matters, and from the left, who see it as granting legitimacy to occupation. In this article, I briefly describe the development, both historical and legal, of IHL in the Israeli Supreme Court, the criticism of the way the law is applied by the Court, and finally the importance of the fundamental concepts of human dignity and proportionality to IHL decisions.

The assumption of this article is that when a state is involved in an international armed conflict it may employ lethal force against combatants of the enemy unless they are hors de combat. Hence, even when it would be feasible to do so, it has no duty to apprehend enemy combatants rather than use force against them. Does this same norm apply in non-international armed conflicts occurring in the territory of a single state (internal conflicts)? The writers argue that the answer is in the negative. Despite the attempt in recent years to narrow the differences between the norms that apply in non-international armed conflicts (NIACs) and international armed conflicts (IACs), there are still significant differences between the two types of armed conflict, which justify the application of different norms in this context. Common Article 3 of the Geneva Conventions refers only to humanitarian norms and does not imply that the norms relating to the conduct of hostilities in IACs apply also in NIACs. While customary international law may allow states to use lethal force in a NIAC in the actual conduct of hostilities, there is no basis for assuming that the norm that ostensibly applies in IACs relating to use of such force outside the context of hostilities applies in NIACs too. The jurisprudence of the International Criminal Tribunal for the former Yugoslavia, which is the main source for the arguments on closing the gap between IACs and NIACs, relates only to humanitarian norms and has never addressed extending the permissive IAC norms of the law of armed conflict (LOAC) to NIACs. Finally, in an internal armed conflict the state has a dual capacity: it must respect and ensure the human rights of all persons subject to its jurisdiction, and it is a party in an armed conflict with some of those persons. In such a situation, the only context in which the state may deviate from regular norms of law enforcement is the actual context of hostilities, in which application of such norms is not feasible. In other contexts, its human rights obligations prevail.

The relationship between transitional justice and democracy is fraught and complex, and nowhere more so than in Iraq since the fall of Saddam Hussein. Iraq has experienced a range of transitional justice initiatives, including the trial and execution of its former leader, purges of the civil service and the military, and a series of reconciliation conferences. Yet democracy has not fully taken root and violence continues to plague many parts of the nation on a regular basis. This article argues that initiatives aimed at changing the structure of society – including but not limited to constitutionalism, frequent elections and the development of an independent judiciary – are more likely than purely symbolic efforts to contribute to the consolidation of democracy in the long term. It is these structural developments that have the greatest potential to transform society into a true democracy under the rule of law.

The protection of ‘morals’ appears frequently as a limitation on the exercise of fundamental rights, both in international covenants and in constitutional charters. The European Convention for the Protection of Human Rights is not an exception, and ‘public morals’ may be called upon to justify the restriction of several important rights granted by the Convention, such as freedom of expression or the right to respect for private and family life. To avoid arbitrary restrictions of these rights it is important to understand the meaning of this general clause. This article aims to suggest a reading of the ‘public morals’ clause that singles out its scope and its boundaries.

The nature of armed conflict has changed dramatically in recent decades. In particular, it is increasingly the case that hostilities now occur alongside ‘everyday’ situations. This has led to a pressing need to determine when a ‘conduct of hostilities’ model (governed by international humanitarian law – IHL) applies and when a ‘law enforcement’ model (governed by international human rights law – IHRL) applies. This, in turn, raises the question of whether these two legal regimes are incompatible or whether they might be applied in parallel. It is on this question that the current article focuses, examining it at the level of principle. Whilst most accounts of the principles underlying these two areas of law focus on humanitarian considerations, few have compared the role played by necessity in each. This article seeks to address this omission. It demonstrates that considerations of necessity play a prominent role in both IHL and IHRL, albeit with differing consequences. It then applies this necessity-based analysis to suggest a principled basis for rationalising the relationship between IHL and IHRL, demonstrating how this approach would operate in practice. It is shown that, by emphasising the role of necessity in IHL and IHRL, an approach can be adopted that reconciles the two in a manner that is sympathetic to their object and purpose.

In the wake of the UN General Assembly's recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to challenge in the International Criminal Court (ICC or the Court) the legality of Israeli settlements. This article explores jurisdictional hurdles for such a case. To focus on the jurisdictional issues, the article assumes for the sake of argument the validity of the merits of the legal claims against the settlements.

The ICC only takes situations of particular ‘gravity’. Yet settlements are not a ‘grave breach’ under the Rome Statute. No modern international criminal tribunal has ever prosecuted crimes that do not involve systematic violence and physical coercion. The ICC's gravity measure involves the number of persons killed; for settlements it would be zero. Indeed, the ICC Prosecutor triages situations by the numbers of victims; settlements do not appear to have direct individual victims. Finally, the ICC would at most have jurisdiction over settlement activity only from the date of Palestine's acceptance of jurisdiction. Settlement activity in this time frame would not immediately cross the ICC's gravity threshold.

The recent proliferation of external investigations into military operations raises important questions for the conduct of military operations and the interpretation and implementation of international law. The impact of such investigations and their reports, however, extends beyond how they influence the military and the implementation of the law of armed conflict. As countries and societies embroiled in lengthy conflicts begin to explore the value and effectiveness of undertaking transitional justice efforts during conflict, rather than only after conflict, investigations into military operations and specific incidents can play an important – and perhaps unexpected – role. This article focuses specifically on the inter-relationship between investigations and transitional justice efforts. As investigations into military operations become a common tool in the international and national arsenal, understanding how they interact with and affect broader transitional justice efforts and goals becomes important, both for the conceptualisation of investigations and the development of transitional justice mechanisms. This article addresses the relationship between investigations and the truth-telling aspect of transitional justice mechanisms, as well as the impact of the use of law and legal analysis on the legitimacy of the investigations and on potential transitional justice mechanisms.

Transitional countries have struggled to overcome impunity for human rights violations committed by past authoritarian regimes. While some scholars have hailed the emergence of a ‘justice cascade’, a ‘justice revolution’, and an ‘age of accountability’, our research highlights the persistence of amnesty laws despite efforts to erode them. This article examines 63 amnesties for human rights violations committed by state agents that were enacted in 34 transitional countries from 1970 to 2011, and the 161 challenges that endeavoured to undermine the power of these laws.

We find significant variation in the outcome of challenges. While some lead to the removal or weakening of amnesty laws, others validate them. We explain the variation using an explanatory model that focuses on the characteristics of four actors: civil society, international governmental and non-governmental agencies, domestic executives and judicial leaders. Time also plays a conditioning role in our framework. We illustrate our argument by presenting emblematic country case studies. We conclude that even when amnesty laws are displaced or eroded, impunity tends to persist in some form.

The practice of house demolition in the Occupied Palestinian Territories (‘the Territories’) pursued by Israel for the purpose of deterring potential terrorist activities (as opposed to planning or operational purposes) has attracted voluminous literature, most of which is critical. Scholarship postulates that the practice is immoral and ineffective, that it is contrary to Jewish morals and international law, and that it may amount to an international crime. Some of the critical writings focus on the practice of the Israel Defence Forces; others concentrate on the failure of the Israeli Parliament to curb the practice, while others examine the practice in its wider context, namely the Israeli–Palestinian conflict. This article focuses on the regulation of the practice by the Israeli Supreme Court (‘the Court’). This theme has already been examined by numerous scholars including, in particular, Kretzmer and Simon, who found that the Court's jurisprudence is contrary to public international law and its reasoning is unpersuasive. This article aims to add to the existing scholarly corpus by using a different prism. It contrasts the Court's house demolition jurisprudence with its own jurisprudence in comparable areas in which it is called upon to resolve tensions between security and human rights in the Territories, postulating that in handling house demolition measures the Court is unfaithful to its own jurisprudence. Building upon these findings, the article distils the manifestations of that unfaithfulness and its negative repercussions in normative, coherence and legitimacy terms. It concludes with the call that when the issue of house demolition is brought back before the Court, it should apply the same approach, spirit, techniques and benchmarks that it has employed in analogous areas of law.

In 1949, the inclusion of Common Article 3 to the four Geneva Conventions represented a significant advance in the regulation of armed hostilities. That article extended international humanitarian law to the realm of non-international armed conflicts. At that time, these conflicts were considered synonymous with intrastate conflicts such as civil wars. While the scope of applicability of Common Article 3 to internal threats and disturbances has witnessed what is arguably a significant evolution since that time, it is unclear whether and when this baseline humanitarian obligation – and the broader customary laws and customs of war applicable to non-international armed conflicts once this article is triggered – are applicable when a state confronts organised criminal gangs who possess a capability to engage in violence and wreak havoc that rivals, if not exceeds, that of traditional insurgent threats.

Much of this uncertainty derives from the fact that the response to criminal disturbances appears to have been specifically excluded from situations triggering Common Article 3 when it was adopted in 1949. However, it is unlikely that the drafters of the Conventions at that time anticipated the nature of organised criminal gangs and the destabilising effect these groups have today in many areas of the world. The nature of this threat has resulted in the increasingly common utilisation of regular military forces to restore government control in areas in which they operate. This results in the use of force and the exercise of incapacitation powers that far exceed normal law enforcement response authority. It is therefore the thesis of this article that when the nature of these threats exceeds the normal law enforcement response authority and compels the state to resort to regular military force to restore order, international humanitarian law, or the law of armed conflict, provides the only viable legal regulatory framework for such operations. However, it is also the view of the authors that the risk of excess of authority inherent in this legal framework necessitates a carefully tailored package of rules of engagement to mitigate the risk that the effort to restore order will result in the unjustified deprivation of life, liberty and property.

States have undertaken an international obligation to investigate and prosecute individuals for serious human rights violations and grave breaches of international humanitarian law. However, compliance with that obligation is poor and prosecutions at the national level remain few. The mechanism for enforcement of that obligation is also limited. This article explores the way in which the International Court of Justice (ICJ) can play, and has played, a role in this respect. The jurisprudence of the Court is analysed with regard to three matters: (i) the obligation of states to investigate and prosecute serious crimes at the national level; (ii) national criminal jurisdiction with regard to prosecution of serious crimes, as well as immunities from that jurisdiction; and (iii) the obligation of states to cooperate in criminal matters with other jurisdictions. The Court has adjudicated on some key issues relating to national prosecutions. Some of its findings have, without doubt, enhanced the enforcement of prosecution at the national level, while others have undermined it. Recent cases before the ICJ show an increased willingness by states to use the Court as an avenue for enforcement and, at the same time, the Court has proved more willing to utilise its powers.

The use of amnesty for human rights violations has been heavily criticised on legal, ethical and political grounds. Yet amnesties have been the most popular transitional justice mechanisms over the past four decades, particularly in the context of internal armed conflict. States justify these amnesties by claiming they are important tools to secure peace. But how successful is amnesty in accomplishing these goals? This article seeks to answer this question by analysing the use and effectiveness of 236 amnesties used in internal armed conflicts worldwide since 1970. The article first creates a typology of the use of amnesty in the context of internal armed conflict. It then qualitatively examines the impact on peace of each type of amnesty. The article finds that most amnesties granted in the context of internal armed conflict have no demonstrable impact on peace and security. Yet amnesties granted as carrots to entice the surrender of armed actors occasionally succeed in bringing about the demobilisation of individual combatants or even entire armed groups. More importantly, amnesties extended as part of a peace process are effective in initiating negotiations, securing agreements, and building the foundation for long-lasting peace.