In the introduction to their book Srebrenica: Record of a War Crime, political scientists Jan Willem Honig and Norbert Both write: ‘“Srebrenica” has become synonymous with such an extraordinarily horrific crime that exceptional explanations have been proposed. Stories of conspiracy and betrayal abound. The most popular theory is that Srebrenica fell as the result of a plot involving senior UN personnel, the French government and the Serbian government. Others place the blame firmly on the Dutch UN soldiers, whom they accuse of cowardice during the Serb offensive against the safe area. We reject these explanations. Conspiracy theories tend to be neatly constructed so that every decision, or failure to decide, seems to stem from sinister ulterior motives. They leave no room for the dilemmas of real life, nor for miscommunication or outright failure. As such, they rarely bring us closer to the truth, and more often create a fertile breeding ground for dangerous stab-in-the-back myths’ Honig and Both claim that final culpability should, without a doubt, be attributed to the highest Serb officials and officers who organised the crime and gave the orders for its perpetration. The systematic manner in which the crime was committed, the evidence that detailed plans had been drawn up and that procedures established earlier had been painstakingly carried out — all this points to the direct responsibility of the Bosnian Serb leadership in Pale. Moreover, the Serbian leadership in Belgrade had given, if not the order, then still its tacit consent.

This note briefly reviews certain aspects of international humanitarian law (IHL) arising from the civilian Commission of Inquiry established in Canada on 20 March 1995 to investigate the role of Canadian forces during the multinational peace operation in Somalia in 1992 and 1993.

After some background information, we focus on two key issues concerning IHL arising from the Commission's work:

(1) The applicability of IHL to a peace operation such as the Canadian deployment to Somalia; and

(2) Canada's obligation to provide IHL training to die members of its armed forces.

We conclude with some observations on die Commission's impact, including die responses of die Canadian government and die Canadian Forces.

Belgium was variously praised, criticized and ridiculed for its 1993 law (as amended in 1999) giving it universal jurisdiction over war crimes, crimes against humanity and genocide. The invocation of this law against Israeli and US defendants provoked an unprecedented conflict with Israel and serious tension with the United States of America in 2003. After months of diplomatic incidents, economic threats, provocative complaints and political debate, Belgium's controversial anti-atrocity law was repealed on 5 August 2003, ten years after entering into force. Even in the international legal community, real understanding of what happened in this legal laboratory is not common. This article is not a neutral study, but a contribution from an actor and a privileged witness.

In an address to the United Nations General Assembly on 7 November 1995, Antonio Cassese, then President of the International Criminal Tribunal for the former Yugoslavia (ICTY), highlighted the difficulty of enforcing international criminal justice in the absence of state cooperation. To emphasise his point, Cassese offered an apt — if somewhat inelegant — analogy: he likened the Tribunal to a limbless giant, dependent on the ‘artificial limbs’ of the enforcement agencies of UN Member States. First among the various areas cited by Cassese where the Tribunal depended upon state cooperation was the arrest of suspected criminals living within the borders of those states. Over nine years later the problem remained acute. In a 23 November 2004 address to the Security Council, the Prosecutor of the ICTY, Carla Del Ponte, highlighted failures on the part of the governments of Croatia, Serbia and Montenegro and Bosnia and Herzegovina to arrest indictees and turn them over to the Tribunal. In particular, she mentioned the lack of cooperation by Belgrade as ‘the single most important obstacle faced by the Tribunal’ in the implementation of its strategy to complete its trials by the end of 2008.

Between 3 and 4 December 1997, 122 governments signed the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and On Their Destruction, marking the first time in history that die international community banned a weapon that is already in widespread use.

Tens of millions of landmines are emplaced in about 70 nations. Another 100–200 million anti-personnel landmines are believed to be in the arsenals of more than 100 governments. Although militaries around the world have used antipersonnel landmines for decades, this treaty banning the weapon was proposed, developed, negotiated and signed in record time in recognition of the humanitarian imperative ‘to put an end to the suffering and casualties caused by anti-personnel mines mat kill or maim hundreds of people every week, mostly innocent and defenceless civilians and especially children, obstruct economic development and reconstruction, inhibit the repatriation of refugees and internally displaced persons, and have other severe consequences for years after emplacement’.

Dragged reluctantly into the debate over Khmer Rouge accountability, the United Nations Secretariat has spent the last five years attempting to find a mutually acceptable judicial structure to try the leaders of the former government of Cambodia for international crimes committed between 1975 and 1979.

In response to a request for aid from the Cambodian government in June 1997, the UN originally came down in favour of establishing a third ad hoc International Criminal Tribunal. Taking that proposal as a starting point, this paper documents the series of events leading the Organisation towards unwilling participation in potentially unjust domestic trials after Cambodia's refusal of the UN proposal. Each time the negotiations seemed to have broken down, the UN and Cambodia came under pressure from certain Member States to return to the negotiating table. Beset with its responsibility in supporting the Khmer Rouge after the Vietnamese invasion in 1979, the UN compromised successively concerning the nature of the court (part 3) and its structure (part 4). A consensus finally seemed to have been reached in July 2000, when a UN negotiating team left Phnom Penh with a draft Memorandum of Understanding concerning ‘significant international co-operation’ in trials before ‘Extraordinary Chambers’ of the Cambodian courts (the ‘draft MOU’). However, the law finally promulgated on 10 August 2001 in order to set up these Chambers (the ‘Tribunal Law’) was not entirely consistent with the terms of the draft MOU, the exact legal status of which then became a bone of contention (part 5).

This article examines the control system under the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 (the Convention) and its Second Protocol (the Protocol). It is divided into three parts. Part 1 introduces the control system and provides some examples of its implementation; Part 2 focuses on the evaluation of the control system during a recent review of the Convention; and Part 3 compares the control system under the Convention with that under the Second Protocol to the Convention.

Growing concerns that PMSCs were operating in a legal vacuum led to increasing calls for further clarification on the role of such entities in conflict zones and to mounting pressure to develop a regulative framework under international law. In September 2008, 17 States endorsed the Montreux Document, an initiative sponsored by the Swiss government and the ICRC. The Montreux Document is a non-binding document aimed at identifying and reasserting the most relevant international legal obligations that govern the conduct of PMSCs during armed conflicts. It also provides for a set of guidelines on ‘good practices’ for States in regard to the operation of PMSCs in armed conflicts. Although it does not create any legal obligations, and only recalls existing ones, it is the first intergovernmental document to address international obligations in respect to the activities of PMSCs. It can thus be seen as a first step toward the establishment of a better regulative framework of PMSCs' activities in conflict zones. This article provides an overview of the process that led to the endorsement of this document and an analysis of its content. It also addresses some of the questions left unanswered by the Montreux Document.

When, on 17 December 2010, Mohamed Bouazizi, a 26-year old, set himself on fire as a desperate act of protest in Sidi Bouzid, Tunisia, he did not know that he was going to spark a historical movement of political revolutions that would sweep through the nations bordering the Mediterranean Sea. The ‘Arab Spring’, which in the spring of 2011 touched Tunisia, Egypt, Bahrain, Libya, and most recently Syria, among other countries, has so far led to mixed results in terms of regime change. Whereas in Tunisia and Egypt, autocratic leaders relinquished power relatively quickly and with limited bloodshed, in Libya, Bahrain, Yemen and Syria protests were, and still are in the latter three of these countries, harshly repressed over the course of several weeks and months leading to thousands of people being killed or wounded. Of course, each of these revolutions has different political, social, and historical backgrounds. It is almost trite to note that power structures in Egypt or Libya are not the same, nor are, for example, the characteristics of society in Syria or Bahrain. This helps to explain the difference between the types of revolution that have taken place. Nevertheless the common aspiration that has pushed huge numbers of ordinary citizens to risk their lives, namely, to achieve freedom by bringing to an end longstanding despotic governments, unites all these cases. The courage of those who have risked all to secure change and those of many others who are still confronting death and torture for exercising their right to peaceful protest, has attracted widespread admiration.

The law of armed conflict suffers from an internal ambiguity. The Declaration of St Petersburg (1868) made the ambiguity explicit when it stated that ‘the necessities of war ought to yield to the requirements of humanity’. The Lieber Code (1863) was less explicit, though it suffered from the same ambiguity. The Code received a lengthy critique from the Confederate Secretary of War who stated bluntly: ‘A military commander under this code may pursue a line of conduct in accordance with the principles of justice, faith and honour, or he may justify conduct correspondent with warfare of the barbarous hordes who overran the Roman Empire, or who, in the Middle Ages, devastated the continent of and menaced the civilisation of Europe’. Which of the two considerations, the Confederate Secretary demanded to know, should prevail: humanity or necessity?

Current peace operations often include an element of enforcement. Such operations are based upon Chapter VII of the United Nations Charter and are regularly endowed with a right to use ‘all necessary measures’ to fulfil the tasks set down in the particular mandate from the UN Security Council. Such operations, moreover, are often deployed in unstable conditions that border on armed conflict, or in areas of existing conflict. At times, the military forces involved in these operations are also involved in the armed conflict itself.

The utilization of military force naturally raises the question of the legal status of personnel in peace operations under international humanitarian law (IHL). They represent the international community and as such are protected personnel. But how should they be treated from the perspective of IHL? Should they, despite their obvious military characteristics, be regarded as civilians? At what point, if any, could they be regarded as combatants? On the issue of change of status under IHL, does the same threshold apply for the operation's military forces as for other military personnel? Does the involvement of peace forces in an armed conflict, made up of contributions from a number of States, automatically cause that conflict to assume an international nature? Are the Convention on the Safety of United Nations and Associated Personnel and IHL, applicable in non-international armed conflicts, mutually exclusive? These dilemmas are well illustrated by the difficulties facing the International Security and Assistance Force (ISAF) in Afghanistan.

With the attacks of 11 September 2001 very much casting their shadow, 2002 was a year in which issues concerning both the jus in bello and the jus ad bellum occupied centre stage in international law and relations and dominated the news agenda, but often in a way that promoted confusion and misinformation rather than greater understanding of the law, and, as the year progressed, frustration and despair rather than optimism.

Transnational terrorism was cemented as the declared pre-eminent security concern of many states, and, as a consequence, full speed into the ‘global war on terror’ (hereinafter GWOT), the integrity of international humanitarian law, human rights law and international law in general, including the role of international organisations such as the United Nations, came under increasing challenge. Focal points of rancorous, polarised debate were the fact and the conditions of detention of persons, including minors, at Guantánamo Bay, Cuba; the applicability and relevance of international humanitarian law in the context of the terrorist threat and the counter-terrorist response; the perceived conflict between human rights and national security; the coming into being of the International Criminal Court (ICC) and the US's almost obsessive opposition to it; and, as the year drew to a close, the spectre of the use of force against Iraq without Security Council authorisation by an increasingly belligerent United States and a handful of its allies.

International humanitarian law (IHL), from both a historical and contemporary perspective, holds a unique position within the international legal order. This distinctiveness is central to the main theme of this article: to assess the role of IHL, or jus in bello, in contemporary theoretical debates on the international legal order. IHL's presence in the legal theory literature is sparse. A partial explanation for this is to be found in a number of its unique characteristics that contribute to IHL's absence from this debate. These include its exceptional status within war and law, its historical development, its early codification and, most importantly for this analysis, its treatment within international legal theory. In exploring these characteristics, this article seeks to further account for the near absence of IHL within current legal theory and to suggest that a more active engagement with IHL has the potential to enrich the debates on the future of the international legal order.

On 27 September 2010 the UN Human Rights Council in Geneva released its analysis of the 31 May 2010 boarding of the large passenger liner, Mavi Marmara, by forces of the Israeli Navy. The ship was interdicted in the eastern Mediterranean Sea by Israeli commandoes, who rappelled vertically onto the top deck of the ship from a helicopter. The boarding incident and ensuing melee that unfolded on the deck of the ship left several Israeli military members seriously injured and resulted in the death of nine Turkish nationals. The event ignited a firestorm of controversy in international humanitarian law. These sad and unfortunate results raise interdisciplinary questions concerning both fact selection—determining what actually happened, or whose version of the facts are accepted—and rule selection—what was the legal relationship between Israel and the vessel Mavi Marmara. Because of the tense stand-off between the Gaza Strip and Israel, however, and the volatile brew of religion, politics and geography that colors choices of fact selection and rule selection, analysis of the incident is especially challenging. The issues of fact selection are more important for resolving questions surrounding the deaths and injuries of persons on board the ship and Israeli naval personnel. Factual claims necessarily are colored by a veneer of subjectivity, and in this case go more toward determining whether the use of force on the part of Israeli commandoes was lawful. The nature of the tactical operation that unfolded on board the ship and the reaction of the vessel's passengers are bitterly disputed, inseparable from who used what force and when.

On the modern battlefield, lasers are employed for a variety of military tasks, including rangefinding, target designation, jamming or destruction of optical or electro-optical systems. Sweden and the ICRC, in particular, alerted the international community to the fact that many existing and currently developed laser systems might well be used to blind enemy combatants. They argued that intentional blinding causes unnecessary suffering and pushed for an international agreement which would explicitly prohibit the use of lasers for blinding as a method of warfare. More than 20 years after the first discussions about regulation of laser weapons, the Review Conference of States Parties to the UN Conventional Weapons Convention adopted Protocol IV on Blinding Laser Weapons on 13 October 1995.

‘As far as the question of treatment of detainees is concerned, the conduct of INTERFET has been exemplary. The delegation met with detainees in conditions in which it could be confident that the detainees would have no fear of speaking frankly of any complaints as to their treatment. There were none. ICRC, which has full access, confirmed that it too had received no complaints from any of the detainees. The tone was set by the Force Commander who, especially in the beginning, established the pattern by personally visiting the detention area. The establishment of the detention-management team also acts as a safeguard against abuse.’

On 23 October 2002, a group of about 50 Chechens seized a Moscow theatre and held hundreds of people hostage, threatening to shoot their captives and blow up the building if Russian security amassed outside the theatre attacked. Their demand, that the operations mounted by the Russian army in Chechnya cease, was not taken into account by the authorities who, from the outset, declared that they would not negotiate. The crisis was brought to an end when special troops stormed the theatre, using gas in order to incapacitate the hostage-takers, and averted the detonation of a massive explosion that might have killed all the hostages. Up to 40 Chechens were killed as well as 129 theatregoers.

Cyberspace and cyber technology are increasingly used by states and individuals for peaceful purposes, but they are also employed maliciously. Cyber attacks—that is, the use of cyber technology to attack a state's infrastructure—are perhaps one of the most serious threats currently facing states. Although not all cyber attacks are warlike, some of them may indeed be so, which immediately gives rise to the question of whether the current legal regulation of the use of force (jus ad bellum) applies to such attacks. The ‘Tallinn Manual’ on the International Law Applicable to Cyber Warfare responds to this question by mapping out the jus ad bellum and jus in bello rules that apply in such circumstances. The statement of the Rules is accompanied by a Commentary which clarifies the content of those rules, and explains their application in the specific context of cyber war.

In the following, I will present and critically comment on the jus ad bellum rules found in Chapter II of the Tallinn Manual: that is, Rules 10–19. The aim of this commentary is to draw attention to certain important but contested issues, identify jurisprudential ambiguities, and where possible offer alternative views.

According to Rule 10, ‘A cyber operation that constitutes a threat or use of force against the territorial integrity or political independence of any state, or that is in any other manner inconsistent with the purposes of the United Nations, is unlawful.’

The need to enforce and further develop international legal protection after 11 September 2001 has been discussed in prominent fora before. A wide range of issues (self-defence, humanitarian law, human rights, national laws and regulations, criminal sanctions) must be considered in this context. Different phases of application of the law (international and non-international armed conflict, peace enforcement, post-conflict peace building, etc.) are affected. Misconceptions have been propagated at the highest government levels and have created new problems rather than solving existing ones.

Among expert observers, such developments may cause feelings of déjà vu. In the years after the adoption of the 1977 Additional Protocols, when one might have expected that all efforts would be taken to accelerate the ratification of these new instruments and ensure respect for their provisions, Protocol I was criticised as being in the service of terror, an allegation that won certain influence although it was promptly and convincingly refuted. Concerns expressed more recently that the application of certain rules of humanitarian law might impede the fight against terrorism may stem from similar ways of thinking. They have made it necessary to explicate in detail that terrorist acts when committed during armed conflict are serious violations of humanitarian law, prohibited without any exception in the Geneva Conventions, their Additional Protocols and other international treaties and customary law, and that only scrupulous respect for international humanitarian law in military campaigns helps to strengthen the determination of all members of the international community to abide by the law in all circumstances.

Contemporary international conflicts are witnessing an increasing involvement of civilians — such as, for example, suicide bombers — in the conduct of hostilities. Unlike regular soldiers, however, whose job it is to fight, civilians are not allowed to participate in combat and may be tried under ordinary criminal law for such activity. The question that this paper will attempt to answer is whether in the case where their engagement may lead to gross violations of humanitarian principles, they may be additionally subject to war crimes proceedings pursuant to international humanitarian law (IHL).

In order to assess the applicability of the war crimes' regime to civilians, this paper will be structured as follows. Part 2 will define who is a civilian. Part 3 will examine the position of international jurisprudence and doctrine on the question whether civilians may also be liable for war crimes and under what conditions. The fourth part will draw the conclusions.