Current jurisprudential trends empower the International Criminal Court (ICC) Prosecutor to override domestic investigative authorities in a manner that violates the letter and spirit of the Rome Statute. Sovereign states have primary responsibility to document, investigate and prevent atrocity crimes. Yet, current ICC practice subverts domestic enforcement efforts. No provision of the Rome Statute permits the Office of the Prosecutor (OTP) to substitute its unfettered judgment over the good-faith discretion of domestic prosecutors. ICC judges have created de facto institutional jurisdictional primacy by relying upon mere assertions regarding the insufficiency of domestic efforts. This trend is particularly problematic at the liminal phase from the preliminary examination (PE) to an authorised investigation because OTP policy preferences supersede good-faith domestic investigations and prosecutorial assessments. Juridical templates for assessing admissibility have been extrapolated from later phases of particularised cases into the PE phase. Current practice effectively eliminates sovereign prosecutorial discretion. Good-faith exercises of domestic prosecutorial discretion should not be constrained by post hoc Court-created straitjackets. This article dissects this problematic arc and proffers a model for harmonising domestic investigative efforts within the structure and intent of the Rome Statute. Its conclusions recommend reforms to ameliorate a foreseeable crisis of cooperation that could cripple an unreformed Court.

Drafters of international humanitarian law (IHL) treaties clearly envisaged a role for military justice systems in the implementation and enforcement of these treaties. Nevertheless, the adequacy of military jurisdiction over violations of international law is being questioned in certain spheres. In the context of these debates this article considers the domestic rationale for military justice systems and explores the role and limits of military jurisdiction in combating impunity for violations of IHL. In focusing on the need to effectively repress and suppress all violations of IHL, the article addresses the extent to which some sort of military justice may be necessary for the effective enforcement of certain provisions. It also explores the way in which increased scrutiny of the impact of these justice systems on the rights of individuals has led to restrictions on the format and scope of military jurisdiction. Although there are difficulties in internationalising the discussion on military jurisdiction because of differences in domestic legal traditions, the choice of effective IHL enforcement mechanisms, which includes the choice of military or civilian jurisdiction, is key in combating impunity for violations of this body of law and protecting the rights of those involved.

This article explores the tension between the theoretical conceptualisations of liberal peace, transitional justice and reconciliation by focusing on power sharing as a liberal peace institution-building mechanism. Power sharing is based on the premise that identities in conflict in deeply divided societies are difficult, if not impossible, to change. The article outlines the limitations of liberal peace by demonstrating how the implementation of power-sharing arrangements creates a political reality in which conflict patterns are further entrenched, thus hindering the prospects of conflict transformation. In order to address the limitations of liberal peace, the article draws on models of transformative justice to highlight the growing need for a new conceptualisation of reconciliation as a political and transformative concept, in which both justice and reconciliation are recognised as intrinsic goals for post-conflict societies. Thus, the re-establishment of political structures and institutional reforms is envisaged not only as a tool to promote political stability, but as a means of facilitating transformation in conflict patterns in the political and social spheres.

Pre-transitional justice activities that expose past injustices during entrenched conflicts can incite strong reactions among actors who feel threatened by or dislike such activities, and who thus attempt to silence controversial truths. This article illuminates how attempts to silence controversial truths, in parallel with shutting down debate, can also have the unintended outcome of enlarging public discourse on previously marginalised issues. Thus, paradoxically, efforts to curb freedom of expression sometimes result instead in an expanded public capacity to debate previously silenced truths about the conflict. We conduct a case study of reactions to pre-transitional justice in Israeli society focusing on the so-called Nakba Law, enacted in 2011. Through interviews with members of the non-governmental organisation Zochrot, politicians, teachers and media persons, we first show the relationship between pre-transitional justice and enacting the Nakba Law. We then demonstrate that while the Nakba Law indeed aimed to hamper freedom of expression, it also enabled increased public knowledge about the meaning of Nakba. Our theoretical proposition regarding this paradox, in this case activated by instigating new memory laws, is highly relevant to other conflicts-in-resolution that experience pre-transitional justice processes.

Military justice as a body of law was subject to much criticism in the preceding decades before undergoing significant reforms to ensure that fair trial rights could be achieved. However, modern military justice systems are appropriate mechanisms for addressing law of armed conflict (LOAC) violations committed by service members. It is argued that the goals of military justice are consistent with LOAC, and that military justice has a valid legal basis to try violations. Such trials have a large body of precedent. The purported disadvantages of military trials are sufficiently mitigated to prevent cover-ups and unfair trials. Furthermore, military justice offers several benefits that cannot be achieved in a civilian or international forum. It is concluded that although military legal systems are imperfect, their role in the enforcement of international criminal law is worthy of further debate.

In July 2020 the International Criminal Court opened the trial in the Al Hassan case. For the first time in the history of international criminal justice a defendant is being tried with the charge of the war crime of sentencing or execution without due process in the context of a non-international armed conflict. Together with its equivalent in international armed conflicts – the war crime of denying a fair trial – this offence falls within the category of the war crimes of denying judicial guarantees. Although there are differences in their constitutive elements, both offences prohibit states and armed non-state actors from depriving prisoners of war and civilians of certain minimum judicial guarantees. The provisions that regulate these two crimes, however, present interpretative and practical issues which, so far, have not received sufficient consideration. Most notably, the material elements of the offences raise a range of interpretative doubts and are of cumbersome application. The objectives of the article are (i) to identify the issues posed by the material elements of the war crimes of denying judicial guarantees, (ii) to warn of the pitfalls hidden by the interpretation of the offences, and (iii) to trigger the debate on the issues that the crimes raise.

During times of military occupation following an armed conflict it is not uncommon for the victors to implement mass detention programmes aimed both at providing security and bringing criminals to justice. International human rights regimes serve as overarching guidance for these programmes but are subject to broad interpretations, so it is often unclear what regulations or laws should inform day-to-day operations. Military and civilian lawyers may find themselves practising in a foreign jurisdiction for which they have no training or experience, let alone licensure. Law enforcement officers and military police are forced to adapt long-held practices to a new environment. Questions arise as to the rights that detained individuals possess, as these programmes frequently combine rules from different legal systems with no clear authoritative hierarchy. Attention is focused on the treatment of detained individuals with far less emphasis placed on their due process rights or other fundamental legal freedoms. This article examines one such instance, the US detention programme in Iraq, and highlights the numerous ethical and professional conflicts presented when members of one justice system are transplanted into another without proper preparation and background.

This article argues that there are firm grounds upon which to regard the act of denying a person's right of return to their country as a crime against humanity. To make its case, the article builds upon two justifications for the right of return: its grounding based on the human need to belong, and its purpose as a means of preventing rightlessness. The human interests underlying these justifications, the article contends, are similarly those reflected by the image of humanness ingrained within the law of crimes against humanity. Therefore, when the right of return is denied, it is also an assault against humanness as such – a crime against humanity. Recently, proceedings before the International Criminal Court (ICC), with regard to the situation in Bangladesh/Myanmar, have made this question highly relevant. Both the Court's Pre-Trial Chamber and Prosecutor have raised arguments in support of regarding the denial of the right of the Rohingya peoples to return to Myanmar a crime against humanity of other inhumane acts. Consequently, this article attempts to offer support for what might turn out to be an important doctrinal development in ICC jurisprudence.

Memory laws are often accused of enforcing an inaccurate, manipulative or populist view of history. Some are also said to violate fundamental rights, in particular the right to free speech. These accusations are not entirely unjustified. Yet, a discussion of memory legislation that concentrates on these faults might be missing its mark. The main problem with memory legislation is not necessarily with the merits of any particular law. Rather, the determination of historical facts is not the kind of matter that should be entrusted to the legislator in the first place. The role of legislation is to make social cooperation possible despite substantial disagreement, but only when such social cooperation is indeed required. Disputes about historical facts, I argue, are not a coordination problem that requires a legislative solution. Still less can they justify legal coercion.

Human rights defenders (HRDs) are subjected to serious human rights violations through legal and extralegal actions. Notably, most of the abuses against them remain unpunished, perpetuating a vicious cycle of violence against them. There is room for doubt that international human rights law has failed to provide efficient protection for HRDs, and this article considers the international refugee regime as an alternative system of protection. In this sense the article first discusses the intersection between the terms ‘refugee’ and ‘human rights defender’ to establish that defenders fall within the protection of the 1951 Refugee Convention. Following an inductive reasoning, the article considers the most well-trodden defects of the refugee regime and the reluctance of HRDs to adopt refugee status; it concludes that this alternative may not be suitable for defenders. Besides a doctrinal approach, the article employs a socio-legal approach, which is enhanced by interviews with HRDs.

The emergence of new technologies might challenge our assumptions about biomedical research: medical progress may not only cure but enhance human capacities. In particular, the emergence of brain-machine interfaces will admittedly allow disabled people to move or communicate again, but also has various military applications, such as remote control of drones and avatars. Although there is no express legal framework pertaining to the experimental phase of human enhancement techniques, they are actually constrained by international law. According to international humanitarian law, civilians and prisoners of war may be subjected to experiments only when required by their state of health or for medical treatment. According to international human rights law, experimentations are permissible when they meet two conditions: (i) free consent, and (ii) proportionality (that is, the adequacy of risk and benefit). In light of these conditions, this article assesses the situations in which experimentation involving brain-computer interfaces would be lawful. It also gives specific attention to those experimentations carried out on members of the armed forces. In fact, owing to the military hierarchy and the unique nature of its mission (to protect national security at the risk of their own lives), it is necessary to determine how the military may comply with this legal framework.

The operation of military courts is clearly allowed for and, in some cases, mandated by international humanitarian law (IHL). Nevertheless, the use of military courts has been one of the most controversial and hotly debated areas of human rights. Despite the ostensibly exclusive military domain, many human rights bodies have registered significant scepticism towards this type of justice. Consequently, they have sought actively to regulate this ‘IHL space’ with scant attention to the requirements of IHL itself. The article examines comments, case law, draft rules and other measures taken by two human rights frameworks: the United Nations Human Rights Council and the African Commission on Human and People's Rights. It will analyse how, since 2000, these bodies have approached the issue of IHL when assessing the legitimacy and operation of military courts. For instance, do they consider IHL as a source of law guiding their efforts and rely on IHL instruments? How do they resolve conflicts between IHL and international human rights law? Additionally, the article will consider the validity, legality and effectiveness of these efforts. It concludes that, in reviewing military courts, there exists significant neglect of IHL in human rights frameworks. Through overlooking IHL or relegating it to a sub-specialty of international human rights law, these bodies not only ignore applicable law, they deprive themselves of the wealth of expertise found in commentary, debate, jurisprudence and practice in the IHL sphere. Instead, integrating IHL analysis and theory and affording it its appropriate respect within relevant human rights discussions will allow for greater legal and policy coherence, and human rights bodies will be better placed to fulfil their mandates.

Article 4 of the Nation State Law (NSL), entitled ‘Languages’, stipulates that Hebrew is the language of the state (Article 4(a)); the Arabic language has a special status in the state and regulating the use of Arabic in or by state institutions will be set in law (Article 4(b)); and this clause does not harm the status given to the Arabic language before the law came into effect (Article 4(c), the ‘validity of laws’ clause). The question is whether, how, and to what extent these provisions hinder the present legal status of the Arabic language in Israel. The legal status of Arabic had never been determined decisively before enactment of the NSL. The High Court of Israel has always been divided on this matter, particularly between judges who perceived Arabic as an official language and judges who deemed it solely as having been granted its acknowledged ‘special legal status’. Furthermore, the judges who perceived Arabic as an official language of the state were also in dispute among themselves as to the meaning, the scope and the consequences of such recognition. Considering these circumstances, my view is that the NSL perpetuates the legal status of Arabic as prescribed in the laws and case law that already existed, and that the validity of laws clause, coupled with the special status granted to Arabic in a basic law, suggests that the door is still open for the Court to further endorse the legal status of Arabic in Israel.

In his impassioned No More War: How the West Violates International Law by Using ‘Humanitarian’ Intervention to Advance Economic and Strategic Interests, human rights lawyer Dan Kovalik makes the case that the recently considered responsibility to protect (R2P) doctrine, which allows for humanitarian intervention in narrowly defined circumstances, is legally and morally untenable. Humanitarian interventions of this kind, Kovalik argues, mask the true imperial interests of those who intervene and perpetuate a colonial legacy of northern domination of the global south. No More War bridges academic and popular discourse, making it an informative read for those involved in the theoretical and legal study of international relations and for policymakers in the field. Nevertheless, Kovalik's book would benefit from a sharper distinction between international norms and laws. Although the impact of the R2P documents on international law is debatable, there is little controversy that the norm surrounding humanitarian intervention has changed. Moreover, as we show, there are reasons to believe that the law has changed as well. Kovalik's book would also have benefited from omitting a number of polemical points, which may alienate readers who might otherwise agree with his core theses.

In his well-researched biography, Mike Chinoy chronicles Kevin Boyle's life and career as a scholar, activist and lawyer, bringing to light his under-appreciated role in the civil rights movement in Northern Ireland and the efforts to find a peaceful solution to the conflict, as well as his contributions to human rights movements in the United Kingdom, Europe and the world. Are You With Me? is an important contribution to the literature on the actors who have shaped the norms, institutions and operations of human rights. In its efforts to shed light on one man, the book offers a fresh alternative to state-centric accounts of the origins of human rights. The book offers a portrait of a social movement actor turned legal scholar who used the law to contest the social inequalities against the minority community to which he belonged and to push for a solution to the underlying political conflict, as well as revelations of the complex power dynamics between human rights lawyers and the social movements they represent. In these respects Are You With Me? also provides valuable insights for socio-legal scholars, especially those focusing on legal mobilisation. At the same time the book could have provided a fuller and more complex biographical account had Chinoy been geographically and linguistically comprehensive in selecting his interviewees. The exclusion of Kurdish lawyers and human rights advocates is noticeable, particularly in light of the inclusion of Boyle's local partners in other contexts, such as South Africa.