On 5 December 2001, a conference of High Contracting Parties to the Fourth Geneva Convention concerning the application of international humanitarian law in the occupied Palestinian territories, including East Jerusalem, took place in Geneva.

The concept of ‘the responsibility to protect’ (R2P) was endorsed at the 2005 World Summit by the UN General Assembly. This concept, like the right to intervene under Article 4(h) of the Constitutive Act of the African Union, aims to end mass atrocity crimes in the form of war crimes, genocide and crimes against humanity. Yet the question that remains is: what if the UN Security Council is unwilling or unable to act? Further, there is a continuing unanswered question: ‘should action to prevent large-scale killing in an African country be beholden to a Security Council that has no permanent African membership?’ The High-level Panel indicated that in some urgent situations UN Security Council authorization may be sought after operations have commenced, whereas the World Summit Outcome rejected demands that states or organizations such as the African Union (AU) should be able to act before gaining UN authorization. These are the principal issues addressed in this analysis, which discusses how the AU can implement the right to intervene under Article 4(h) against the background of the prohibition of the use of force regime under the UN Charter. The analysis explores the current thinking of the AU and the international community on the key question of how to proceed in cases where the UN Security Council is deadlocked in using force to prevent mass atrocity crimes. The discussion highlights the intention of the framers of the AU Act vis-à-vis the practice of the Security Council in authorizing enforcement action as well as views of various commentators in this regard.

Correspondents, Table of Contents, Abbreviations

Societies emerging from political turmoil and civil unrest associated with gross violations of human rights and humanitarian law face the crucial question of how to deal with these atrocities and put the past in its place. Since the 1980s, this problem has been a major preoccupation of international law and scholarship. The traditional responses include outside intervention in such states pursuant to Chapter VII powers under the United Nations Charter, grants of conditional amnesty to perpetrators of war crimes and crimes against humanity, grants of some form of unconditional amnesty, and prosecution of perpetrators.

Nowhere is this question more pressing than in Sierra Leone, which recently emerged from a ten-year civil war characterized by systematic, serious and widespread violations of human rights and international humanitarian law. The Government of Sierra Leone had to make a choice between these four traditional strategies for dealing with these pervasive human rights violations.

Colombia, which never deigned to sign the Additional Protocols of 1977, in 1993 acceded to Protocol I on the protection of victims of international armed conflicts, and in 1996 to Protocol II applicable in situations of non-international (or internal) armed conflict. The latter step was the more remarkable in that Colombia for more than four decades was (and is to the present day) the scene of virulent internal armed conflict.

This chapter begins with the observation that non-international armed conflicts pose serious challenges to the efforts to regulate war in both international law and recent ethical discourse, and argues that neither has responded well to these challenges. Various problems in both are identified. The second part of the chapter examines the historical conception of just war accepted as consensual in the West from the high Middle Ages till early in the modern period, arguing that it provides a helpful frame for thinking ethically about non-international armed conflicts. The third section of the chapter carries this reasoning forward, applying it to non-international armed conflicts generally and to the problem of detention in such conflicts specifically.

On 29 June 2006 the United States Supreme Court issued a landmark opinion in the case of Hamdan v. Rumsfeld. The Court's essential holding, joined by five justices, found that the President lacked the authority to establish the military commissions which he had created by special order on 13 November 2001. The holding dealt the administration of George W. Bush a stunning defeat, and the very fact of the Court's striking down the military commissions confirmed an assertive, if slim, majority on the court in a time of national emergency and armed conflict. Most striking, the Court found that the so-called war on terror is governed by common Article 3 of the Geneva Conventions of 1949, a legal conclusion that, because of the legitimacy and prestige of the Court, neither Congress nor the President may easily avoid. The lasting jurisprudential impact of the decision, however, remains to be seen. For, on the one hand, Hamdan suggests that the military commissions simply lacked the authority conferred by a statute of Congress – and Congress has since remedied that gap. But, on the other hand, what impact will the Court's analysis of the laws of war have on the Commissions and future judicial assessments of their lawfulness?

This essay examines the international legal contours of Hamdan. It does so as follows: First, it gives the background to the key legal decisions made in 2001 and 2002 to establish the military commissions and interpret the Geneva Conventions so as not to apply to Taliban and Al Qaeda detainees. Second, we explore the principal international legal elements of Hamdan. Third, we conclude with an epilogue of sorts, noting the aftermath of Hamdan in the Military Commissions Act of 2006 and reflecting on a few key points raised – and left unanswered – by Hamdan v. Rumsfeld.

This article analyses the outcome of the ‘Copenhagen Process on the Handling of Detainees in International Military Operations’: a five-year multi-stakeholder effort to develop principles and good practices on detention in international military operations. The Process concluded in 2012 when 18 States ‘welcomed’ a set of non-binding ‘Principles and Guidelines.’ The Principles and Guidelines address uncertainties surrounding the legal basis for the detention, treatment, and transfer of detainees during international military operations, drawing on both human rights and international humanitarian law. This article comments on the Principles and Guidelines, shedding some light on the context in which they were developed and adopted.