As the United States, assisted by a number of its allies, continues to mount asymmetrical attacks against terrorists and their supporters, the centrality of technology to ‘future war’ is becoming increasingly apparent. In a matter of months, US Forces successfully routed, with almost no hostile fire casualties, a battle-hardened and ruthless adversary in a combat environment that frustrated the potent Soviet army for a decade. Operation ENDURING FREEDOM follows close on the heels of Operation ALLIED FORCE, the 1999 NATO campaign that defeated, without friendly casualties, the Yugoslav military. In that conflict, as in the most recent one, exploitation of technological wherewithal proved a decisive factor in determining the victor.

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.

The judgment delivered by Trial Chamber I of the International Criminal Court on 14 March 2012 in the case of The Prosecutor v. Thomas Lubanga Dyilo was welcomed by a number of experts as a landmark decision. Not only was the judgment the first ever adopted by the Court, thus marking a new step in the operationalization of the Rome Statute, but it also provided an opportunity for addressing a number of procedural and substantive issues that are essential to the progressive development of both international criminal and humanitarian law.

This chapter does not seek to provide a comprehensive analysis of all these issues. It focuses instead on the core of the judgment, i.e., the definitions of the war crimes for which Thomas Lubanga Dyilo was convicted (Sect. 4.3). The Trial Chamber found that the accused was guilty of conscripting and enlisting children under 15 into an armed group, namely the Forces Patriotiques Pour la Libération du Congo (UPC/FPLC), and of using them to participate actively in hostilities. These crimes occurred in the Ituri region of the Democratic Republic of the Congo from September 2002 to August 2003. This article also examines how the Trial Chamber addressed the preliminary question of the characterization of the situation during the relevant period (Sect. 4.2). The judgment provides essential insight into the Trial Chamber's understanding of the notion of armed conflict within the framework of the Rome Statute.

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.’

Law without facts makes a dull subject, and it is one of the peculiarities of international humanitarian law (IHL) that many of the interesting facts are classified or unavailable to those outside the military. This partially explains why IHL until recently has been the redoubt of military lawyers and the International Committee of the Red Cross. That situation is changing, for many reasons.

Popular interest in IHL is growing due to concern with responses to terrorism, interventionism (humanitarian and otherwise) and international justice. Civil society organisations have successfully campaigned for both new standards, such as the Landmines Convention, as well as new mechanisms of enforcement, such as the ad hoc international criminal tribunals and the International Criminal Court. At the same time, technology and globalisation have facilitated both real-time battlefront reporting and post-battle analysis by civilians.

Cluster munitions are a class of weapon originating from the Second World War, and concerns about the hazards they pose to civilians, both at time of use and post-conflict, have been raised since the 1960s. However, attempts to specifically address the humanitarian impacts of cluster munitions through international legal means gained little traction until a turning-point period from late 2006 to the end of 2007. Remarkably, by the end of this period not one – but two – multilateral negotiating processes were underway to develop international legally binding arrangements on cluster munitions.

Drones have been credited with eliminating senior leaders of the Taliban and other insurgent groups, and accounts of the recent addition of an American citizen to the target list have received widespread attention. These reports have raised serious questions about whether targeted killing and drone use comport with the relevant international and domestic laws. Tierney J, Chairman, Subcommittee on National Security and Foreign Affairs, Opening Statement, Hearing on ‘Rise of the Drones II: Examining the Legality of Unmanned Targeting’, Committee on Oversight and Government Reform, US House of Representatives (2010), http://oversight.house.gov/index.php?option=com_content&task=view&id=4903&Itemid=30.

One day shy of the tenth anniversary of the al Qaeda attacks on the World Trade Center in New York City and the Pentagon in Washington, D.C. (commonly and hereinafter referred to as “9/11”), Professor Mike Schmitt invited me to join distinguished scholars in a forum containing “reflective pieces regarding the international humanitarian law implications of 9/11 to mark the tenth anniversary of the attacks”. I accepted his invitation, honored to be included in such good company.

2013 was marked with several noteworthy events with particular relevance to international humanitarian law, such as the continuation of the conflict in Syria and the incidents related to the use of chemical weapons in that conflict; several key decisions in international, hybrid and national courts related to the adjudication of war crimes, crimes against humanity and genocide; the passage of an Arms Trade Treaty text; the 150th anniversary of the International Committee of the Red Cross; and the release of the second part of the Turkel Commission Report. This chapter addresses a number of these issues among other events of note.

The invitation to join this symposium provides an opportunity for critically reviewing opinions I had expressed years ago, in the immediate aftermath of 9/11. Emphasizing the need for strict compliance with international humanitarian law, human rights law, national constitutional law and rules of due process, in order to convincingly meet the challenge terrorism poses to democratic societies, I had called for a culture of compliance in which incentives for faithful implementation of humanitarian law should be developed to make the expectation of reciprocity a realistic possibility rather than contemplating restraints of humanitarian protection and derogations of human rights. Developments went in a different direction: the world has witnessed an unlimited practice of operational detentions; habeas corpus was, and still is, denied in military operations; and prisoners have been tortured as part of deliberately planned activities. At the same time organized terrorist movements continue to plan and execute attacks while hiding among civilian populations; the number of suicide attacks has increased rather than decreased; and distinctive emblems protected under the Geneva Conventions are deliberately targeted by Taliban fighters.

The controversy surrounding recent uses of white phosphorus (WP) to ‘flush-out’ suspected insurgents or in attacks against military targets in open ground has led to a renewed media interest in the legal status of WP-based munitions. An inherent public dislike for weapons that cause death or injury by fire is very natural, so one is entitled to ask whether humanity should not prevail when it comes to anti-personnel uses of such weapons. In the absence of a specific treaty dealing with the use of WP, this article, written jointly by a retired military lawyer and a scientist interested in the law, examines the use of such weapons in practice as well as the relevant legal and scientific background before attempting to reach conclusions about their legality. This involves a consideration of the reasons for the development of WP-based munitions, of their usual military uses and of some unconventional uses of such weapons. There follows an examination of the basic principles of customary international law as well as the treaty provisions dealing with incendiary weapons. Furthermore, because of the various harmful physiological interactions of WP, it was necessary to look closely at the legal provisions on poison, gas and chemical weapons. That demanded an interpretation of multiple aspects of the Chemical Weapons Convention before the legal status of WP could be fully determined. The convention is constructed in such a way that what at first sight appears to be a chemical weapon may not be as a matter of law unless it is consciously applied in a prohibited manner.

On March 14, 2012, ICC Trial Chamber I issued its judgment convicting Thomas Lubanga Dyilo, a rebel leader in the Democratic Republic of the Congo (DRC). Lubanga was found guilty, as a co-perpetrator, of the war crimes of conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities from early September 2002 to August 13, 2003, in a non-international conflict in the DRC's Ituri region. Lubanga was charged exclusively with child-soldier-related crimes. He had served as President of the Union des patriotes congolais (UPC) and Commander-in-Chief of the Forces patriotiques pour la libération du Congo (FPLC), the entities into which he had unlawfully conscripted, used, and enlisted children. His lengthy trial was punctuated with due process concerns regarding the disclosure of evidence, confidentiality agreements, the Office of the Prosecutor's (OTP) delegation of investigative responsibilities to intermediaries, and the reliability of witness testimony. A stay of proceedings had twice been ordered.

On July 10, 2012, ICC Trial Chamber I sentenced Lubanga—the ICC's first convict—to a prison term of fourteen years. It deducted the six years that Lubanga had already spent in detention (his surrender to the ICC occurred on March 16, 2006) from the sentence. In dissent, Judge Odio Benito would have marginally increased the sentence by one year, to fifteen years. According to the Rome Statute and the Rules of Procedure and Evidence, Lubanga will be eligible for a sentence reduction, contingent upon his deportment as a prisoner, once he serves two-thirds of the term (namely, mid-2015).

This article tackles the tricky legal issues associated with autonomy and automation in attack. Having clarified the meanings of these notions, the implications of the rules of weapons law for such technologies are assessed. More challenging issues seem, however, to be raised by the law of targeting, and in particular by the evaluative assessments that are required of attackers, for example in relation to the precautions in attack prescribed by Additional Protocol I. How these rules can sensibly be applied when machines are undertaking such decision-making is therefore addressed. Human Rights Watch has called for a comprehensive ban on autonomous attack technologies and the appropriateness of such a proposal at the present stage of technological development is therefore assessed. The article then seeks to draw conclusions.

Depleted Uranium (DU) munitions were first used operationally by US and British coalition forces during Operation Desert Storm in 1991 to eject Iraqi forces from Kuwait. Since that time, concerns have been raised in various quarters regarding the possible adverse effects DU may have on human health and the environment. In particular, it has been suggested that the reported ‘explosion of childhood cancer in southern Iraq’ and so-called Gulf War and Balkans Syndromes may be attributable to combat uses of DU in the Middle East and, more recently, in Bosnia in the mid 1990s. Such concerns, however, appear not to have impeded either the proliferation or continued use of DU munitions, such as in Kosovo and Serbia in 1999, in Afghanistan in 2001 and in Operation Iraqi Freedom in 2003. It is thought that, in addition to the US and the UK, a growing number of other countries have DU munitions in their arsenals.

The historic International Criminal Court Statute has come into force against a backdrop of massive atrocities being committed in different parts of the world. Looking at the situations currently under investigation by the Office of the Prosecutor, in the Democratic Republic of the Congo it is estimated that 3.5 million children, women and men have died as a result of the conflict in that country, while in Uganda, the brutal conflict between the rebel Lord's Resistance Army (LRA) and government forces has been characterised by abduction of children to join LRA contingents and for sexual enslavement and large-scale displacement of civilians, among other heinous acts. It is likely that future situations to be dealt with by the Court will similarly impact on hundreds of thousands of victims.

The scale of these atrocities presents a unique challenge for the Court. Thousands of alleged perpetrators may fall within its jurisdiction, although for optimal efficiency and impact the Office of the Prosecutor will need to find a way to focus on the responsibility of key individuals, but without being perceived as detracting from the complexities of any given situation.

According to a bedrock principle of international law, the rules regulating the recourse to war and the rules regulating conduct during war must be kept conceptually and legally distinct. The purported independence of the two domains – the ‘separation principle’ – remains unstable despite its historic pedigree. This essay explores recent developments that threaten to erode the separation. The author analyzes, in particular, doctrinal innovations that result in the regulation of the recourse to war through alterations of jus in bello. International and national institutions have incentivized states to pursue particular paths to war by tailoring the rules that regulate conduct in armed conflict. Some warpaths are accordingly rewarded, and others are penalized. The article then explores potential consequences, first, on state behavior involving the use of force and, second, on state behavior involving the conduct of warfare. One significant conclusion is that these recent developments channel state behavior and justifications for using force toward security-based and strategic rationales. These efforts – whether intended or not – risk suppressing ‘desirable wars’ and inspiring ‘undesirable wars.’ These recent developments also undercut humanitarian protections by undermining the mechanisms for compliance with legal norms on the battlefield.