On 25 May 2000, the United Nations General Assembly, adopted, without a vote, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (‘the Optional Protocol’). The adoption of the Optional Protocol was the culmination of a long process, extending over some ten years and originating in the dissatisfaction felt by a number of states and NGOs at the level of protection afforded to children by the 1989 Convention on the Rights of the Child (‘the CRC’). The Optional Protocol marks a significant step towards the prohibition of the recruitment of children into armed forces and groups and their participation in hostilities. However, its contents were the result of a compromise that left many dissatisfied, and questions remain about the likely efficacy of the Optional Protocol in ending the phenomenon of child soldiers. Critics see the Optional Protocol as the product of a dialogue between developed states, western-based NGOs and the United Nations' bureaucracy, who prefer standard-setting to tackling the root causes of the use of child soldiers.

After 24 years of occupation by Indonesia and nearly 500 years of Portuguese colonisation, East Timor gained its independence on 20 May 2002 when the United Nations formally handed over the reins of power to a popularly elected President. Justice for the immense suffering of the people of East Timor while under Indonesian rule is a major issue for the local and international communities. Of particular importance is the question of individual criminal responsibility for atrocities committed during the last year of the occupation, when the weeks following the referendum on independence held on 30 August 1999 saw unparalleled devastation wreaked upon the civilian population and infrastructure.

For at least a decade, die Government of Papua New Guinea (PNG) has been engaged in armed efforts to terminate a secessionist movement on the island of Bougainville off the South East coast of the PNG mainland. In late 1996, the government agreed to hire the firm of Sandline International to provide mercenary assistance, in a desperate bid to regain effective control of Bougainville. In an ironical twist to the cycle of violence and missed opportunities for peaceful resolution of the conflict, the controversial decision to engage Sandline proved to be the very catalyst to facilitate a process which appears to offer a real prospect for a negotiated settlement to the dispute.

The public disclosure of the decision of the then-Prime Minister, Sir Julius Chan, to resort to mercenarism was condemned by regional governments and resulted in widespread civil disturbance in PNG. Ultimately, the Chan Government was overthrown in a general election and the new government of Prime Minister Bill Skate has participated in the negotiation of an agreement to establish an independent Truce Monitoring Group and an end to me Bougainville conflict.

Despite the introduction and increasing use of ‘smart’ bombs, recent bombing campaigns in Iraq, Afghanistan and Serbia, formerly known as the Federal Republic of Yugoslavia (FRY), have resulted in what some commentators consider to be an unacceptably high level of civilian casualties, especially when compared with the low level of combatant casualties in the attacking force. During the most recent Gulf conflict, a conservative estimate suggests that over 1,100 Iraqi civilians died within the first 2 months as a result of aerial bombardment or missile attacks by Coalition forces and that approximately another 600 civilians were killed by unexploded ordinance during the same period. There are no reliable statistics for civilians injured by aerial bombardment and unexploded ordinance in that period but the number is likely to have been many times higher than the number of fatalities.

When deciding to go to war against Iraq in 2003 it had been intended by the Coalition states from the outset that the regime of Saddam Hussein would be deposed. It was believed, however, that there would be close engagement with a surviving Iraqi administrative capacity and perhaps a successor government. Consequently, it was expected that there would not be a need for much ‘post conflict’ administrative effort beyond the provision of support to a largely intact infrastructure, remaining functionaries and perhaps some humanitarian relief. Instead, Coalition forces faced the greatest post-conflict administrative challenge since World War II and the greatest public security challenge any force has ever had to manage.

International humanitarian law applicable in non-international armed conflicts has long been characterized by the absence of universal competence to suppress serious violations of its provisions. This failure has been due to the reluctance of states – which are naturally prone to consider any limitation of their exclusive competence in this field as a threat to their sovereignty – to criminalize such acts under international law.

The first attempt at remedying such a situation was seen in the Draft Statute of an International Criminal Court (ICC), which was prepared by the International Law Commission (ILC) in 1994, and inspired by the draft articles of the Code of Crimes against the Peace and International Security of Mankind, provisionally adopted by the ILC in 1991 at first reading. Under the Draft Statute of the ICC, serious violations of the laws and customs applicable in armed conflicts would be under the jurisdiction of the Court. The ILC had in mind exceptionally serious war crimes, such as those described in the pertinent article of the draft code referred to by the Commission, constituting an extremely grave violation of the principles and laws of international law applicable in armed conflicts. In the commentary on this article, the ILC took care to specify that the expression ‘armed conflict’ covered the non-international armed conflicts that are the focus of common Article 3 of the Geneva Conventions of 12 August 1949, as well as international armed conflicts.

This first step was of very limited scope. In fact, according to the ILC, in order to be criminalized, the laws and customs of war had to find their origin in general customary international law.

On 22 February 2002, Jonas Malheiro Savimbi, who led the UNITA rebel movement during the bloody armed conflict in Angola and who had battled to take power by force since Angola's independence from Portugal in 1975, was killed in a gun battle with the Angolan Army. During the Cold War, Savimbi was a proxy for the United States against the then-Marxist government of Angola. But after the end of the Cold War, he lost international support for rejecting peace efforts. He was accused of perpetuating a bloody internal conflict to advance his own interests and was exposed to international sanctions. Meanwhile, the government of President José Eduardo dos Santos moved closer to the United States.

The 27-year-long armed conflict is believed to have killed approximately one million people and driven four million others from their homes, creating a humanitarian crisis. In addition, the conflict destroyed almost all of the country's infrastructure, and effectively disrupted every effort by the government to start the long desired national reconstruction after independence, and the building of prosperity for the nation's children.

There is a widespread view that civilians are worse off in today' wars than ever before. Civilians are often deliberately targeted by belligerents or are victims of ‘collateral damage’. They form the majority of victims of landmines. They are used as human shields. They are displaced from their homes, even from their country. They are affected, often more than soldiers, by the pestilence, famine and displacement that wars bring in their wake. They are often particularly vulnerable in the types of war that are most prevalent in the world today – including civil wars and asymmetric conflicts. Children are forced to become soldiers. How can it be that the lot of civilians in war remains so dire, when so much attention has been paid to the protection of civilians in war – not just in international treaties, but in the work of international organizations and also that of numerous humanitarian bodies?

In 2009, the NATO Cooperative Cyber Defence Centre of Excellence (CCD COE) in Tallinn, Estonia, established an “International Group of Experts” to conduct the first comprehensive examination of the international law governing cyber warfare. The group consisted of twenty international law scholars and practitioners, including senior military officers responsible for legal advice on cyber operations. Three organizations provided observers to the process: the International Committee of the Red Cross, NATO's Allied Command Transformation, and the United States Cyber Command. A team of technical experts provided advice throughout the process. The resulting product of the three-year process was the Tallinn Manual on the International Law Applicable to Cyber Warfare.

The authority of the International Group of Experts is not to be exaggerated. All members participated in their personal capacity. Moreover, no attempt was made to ensure geographical representation. Instead, participants were selected based on their mastery of the relevant law or their sensitivity to the cyber contexts in which that law would be applied, or both. Although a number of States took the opportunity to informally provide feedback on drafts of the Tallinn Manual, this was always done in an unof?cial, non-attributable, and non-binding manner. Other international experts served as peer reviewers of the product, providing advice on revisions and corrections. Ultimately, all members of the International Group of Experts agreed with the formulation of the so-called “Rules” set forth in the Manual. They also agreed that the accompanying Commentary fairly explained how each rule was meant to be interpreted and applied, and fully captured any differences of opinion in that regard. Ultimately, the Tallinn Manual should be characterized as a consensus academic work by an international group of experts who devoted three years to identifying the lex lata applicable to cyber warfare.

This article follows on an earlier study of the topic of command responsibility. When that previous analysis was made, the jurisprudence of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) in this area was nascent. A number of issues have since been considered and decided upon by the two Tribunals in several judgements, which have already attracted some scholarly attention. It is proposed to examine herein the doctrine of command responsibility in the light of the evolving case law of the Tribunals and other evidence of practice outside these judicial fora. The aim is to discover whether customary law has progressed or developed, and what questions recent practice has raised.

Seeking to balance military necessity with humanitarian considerations, the Law of Armed Conflict (LOAC) restricts the manner in which force can be used during warfare and prohibits certain kinds of attacks. In order to protect civilians and civilian objects while pursuing attacks against combatants and military objectives, LOAC prescribes strict targeting rules which are based on the principles of distinction, proportionality and precautions. The investigation of civilian casualties that have occurred during armed conflict enforces (and reinforces) these targeting rules and serves a similar purpose—protecting the civilian population from the effects of military operations.

The present article discusses the circumstances which give rise to a duty to investigate civilian casualties. It considers whether and to what extent a State whose armed forces caused civilian causalities during combat is required—under LOAC—to investigate these incidents. While the starting point is the case where a suspected war crime is involved, the article also deals with the question whether there is a duty to investigate incidents which indicate a LOAC violation that does not trigger individual criminal responsibility, namely a suspected failure to take feasible precautions in attack. It further considers whether an obligation to investigate arises in each and every case of civilian casualties, notwithstanding they are not necessarily unlawful under LOAC.

The law of war historically paid scant attention to the protection of the environment. Its main focus was to regulate hostilities so as protect combatants from unnecessary injury. Since World War II, it has turned to the protection of the civilian population and individual civilians. It does not follow that the environment did not receive any protection at all. In as much as international humanitarian law places constraints on the use of means and methods of warfare, the environment was indirectly protected. Thus, the provisions of the Hague or the Geneva Conventions, through the protection of civilian property and objects, offer indirect protection of the environment. Similarly, the banning of weapons of mass destruction, such as biological and chemical weapons, or the restraints on activities related to nuclear warfare, such as the testing of nuclear weapons, also ultimately limit potential damage to the environment caused by armed conflicts.

The activities of the regime of General, then President, Pinochet after his military coup in Chile in September 1973 are politically, legally and, one might almost say, popularly, one of the landmarks in the development of the international regime of human rights. Pinochet, then Commander of the Armed Forces, led a coup against President Allende, which resulted in a Military Junta seizing power on 11 September 1973. Pinochet became President of Chile in 1974 and remained in that position until 11 March 1990, when democracy was restored. He continued on as Commander of the Armed Forces until March 1998, when he was made Senator for Life.

The legal significance of the reaction to events following the coup lies in the response of the United Nations to the excesses of the Pinochet government. The condemnation of Chile by the General Assembly for its policy of gross violations of human rights was the first occasion on which the Assembly had taken this step without invoking either a threat to the peace or a consideration of self-determination.

The article considers whether a state owes any obligation under international humanitarian law or under human rights law to its own soldiers killed or injured during an armed conflict or an occupation of territory. Whether a soldier's own state can be a cause (in conjunction with the acts of enemy forces) of his death during combat is explored through situations such as poor training, equipment, and leadership and of specific issues such as ‘friendly fire’ incidents. It marks out a distinction between causation and the responsibility of a state. Whilst there may be political, or even national law, pressures upon a government which is at fault to some degree in causing casualties amongst its own soldiers this article suggests that, in certain limited circumstances, a duty may crystallise under customary international humanitarian law or arise under human rights law on a state to prevent it being a cause of the death or wounding of its own soldiers. It concludes that soldiers are, perhaps, the last group involved in an armed conflict to be recognised as individuals who should be owed some obligation of protection, in this case, by their own state under international law.

On 31 March 2005, the UN Security Council (hereinafter, Council) passed resolution 1593 which referred the situation concerning the Darfur region in Sudan to the International Criminal Court (hereinafter, ICC). Darfur is the fourth situation to be referred to the ICC since the entry into force of its statute on 1 July 2002. States on whose territories situations have occurred made the first three referrals to the ICC under Article 13(a) of the ICC Statute. The fourth referral of the situation in Darfur is unique in so far as, for the first time in the ICC's short history, the Council, acting under Chapter VII of the UN Charter and Article 13(b) of the ICC Statute, referred a situation to the ICC.

The following part two discusses five aspects of Council resolution 1593: the situation in Sudan (2.1), the negotiations leading to the adoption of resolution 1593 (2.2), the legal basis of the referral (2.3), the obligation to cooperate with the ICC (2.4), and the scope of the referral (2.5). Part three focuses on the jurisdiction of the ICC over African Union (hereinafter, AU) or UN peacekeepers of third states operating in Sudan. Part four discusses the evolving relationship between the Council and the ICC after the first referral by the Council.

On 14 March 2012, the International Criminal Court (‘ICC’) delivered its historic and much anticipated first judgment in the case of Prosecutor v Thomas Lubanga Dyilo. The Accused in the case was charged and convicted of conscripting and enlisting children under the age of 15 into armed forces or groups and using those children to participate actively in hostilities. While the ICC was not the first international court to have done so, having been beaten to this distinction by the Special Court for Sierra Leone (‘SCSL’), it is an important judgment nonetheless for providing some much needed clarification on the law. One of the more significant contributions of the Lubanga judgment was the recognition of the crime of ‘using’ children to participate actively in hostilities as an offense in its own right, distinct from the ‘recruitment’ crimes of conscripting or enlisting children into armed forces or groups. All three crimes are referred to in the single provision of Article 8(2)(e)(vii) of the Rome Statute (‘child soldiers provision’). The case is unique due to the Prosecution's attempt to run the novel argument that acts of sexual violence (rape, forced marriages and sexual slavery) by commanders against girls—primarily ‘child soldiers’ but also civilians—constituted the crime of using child soldiers.

Section 6.2 of this article begins with an overview of how the prosecution of Mr. Lubanga was undertaken and progressed. Notably, sexual violence came to attain prominence haphazardly and belatedly in the proceedings rather than by way of any deliberate case theory properly investigated, pleaded and particularized in the Document Containing the Charges from the outset. Bound by charges of conscription, enlistment and use of child soldiers as confirmed by the Pre-Trial Chamber, the Prosecution found itself in the difficult position of pursuing a sexual violence case with the blunt instrument of the child soldiers provision. Misconceptions in the SCSL, which saw the crime of use conflated with conscription/enlistment, were also repeated by the Prosecution in Lubanga.

Debate over the degree to which International Human Rights Law (IHRL) should legitimately inform and alter the interpretation of the Law of Armed Conflict (LOAC) is increasing in intensity. It is not a new debate—G.I.A.D. Draper was considering the issue in 1971, and there have been numerous general statements by the UN recognizing that there is indeed interplay between the two bodies of law. Yet despite a long formative period, the debate—which is now beginning to attract much greater attention jurisprudentially, operationally, and academically—is still being conducted in a procedurally flawed manner. This flawed procedure has two characteristics. First, it is characterized by a process of reverse engineering. By this I mean it is characterized by reasoning froma limited number of particular instances to arrive at a general thesis, followed by the subsequent re-application of this apparent general thesis to other instances. The second procedural characteristic is that the debate is substantially in the form of a one-way argument. I will briefly elaborate on both.

In 2005, the International Committee of the Red Cross (ICRC) completed a ten-year study on customary international humanitarian law, based on an assessment of the State practice of over 150 nations over the preceding thirty years. Somewhat surprisingly, but perhaps owing to the sheer size of the ICRC Study, only two states have officially responded to the ICRC: the United States and Israel. Although an analysis of the US response is beyond the scope of this paper, it generally criticizes the ICRC Study's unorthodox methodology, including both the State practice it considered, and its lack of proof of opinio juris.

The ICRC is a venerable organization, traditionally viewed as the guardian of international humanitarian law. Its study is a monumental work compiling a surfeit of State practice. Nevertheless, the ICRC Study articulates ‘rules’ that are not sustainable under the traditional theory of customary international law formation, as may be seen by the examination in Section 3 of the three seemingly uncontroversial rules proposed for handling the wounded, sick and shipwrecked.

After regaining independence following the 1991 collapse of the Soviet Union, Lithuania, Latvia and Estonia vowed to prosecute those who took part in the Soviet repressions that followed the annexation of these countries in 1940. Over a dozen ex-agents have since been tried. Officials in the Baltic States insist they are seeking long overdue justice and shedding light on some of the worst human rights abuses of the 20th century. This paper is principally concerned with genocide as a legal norm. It examines whether the indictments of the courts of the three Baltic republics for the crime of genocide, as it is described in their national statutes, correspond with the definition provided by international law. The paper avoids qualifying the Soviet occupation regime; instead, the emphasis is on the progress made by legislators of the Baltic countries in defining the crime of genocide and the application of those definitions by national courts.

The Eritrea-Ethiopia Claims Commission (EECC) is one of a pair of commissions established by the Peace Agreement of 12 December 2000 that ended a costly war between Ethiopia and Eritrea that had begun in May 1998. That war, which was sparked by disputes over the countries' common border, caused much damage and many thousands of casualties on each side. It also proved terribly expensive, as each party spent large amounts of money and incurred large debts to acquire modern weapons of war and the related munitions. Given the causes and the consequences of the war, it was, perhaps, not surprising that the Peace Agreement created a boundary commission to determine for the parties a common boundary that they would be obliged to accept, and a claims commission to resolve the claims of each party against the other for any acts arising out of the war that injured that party, including injury to its nationals, and that were in violation of international law.

However understandable in the context of the war, the creation of an international commission charged with determining which actions of the parties to a war violated the applicable international law is a rare event. While we have seen very recently the establishment of international criminal tribunals for the punishment of war crimes by individuals, we have not seen the creation of any other international tribunal that has the task of deciding the legal responsibility of a state for violations of the laws of war.