This article analyzes the main investigative and legal challenges addressed by the Acknowledgment Chamber of the Colombian Special Jurisdiction for Peace (SJP) in Case 07 on recruitment and use of children in the armed conflict. First, it presents a general background on the mandate of the SJP as a special system of justice – the outcome of the 2016 Final Peace Agreement reached between the Colombian government and the former FARC-EP guerrilla group. Second, it outlines how the investigative methodology used in Case 07 addressed challenges related to understanding child recruitment as a complex criminal phenomenon, the identification of those bearing the greatest responsibility, and the approach to the broad scale and scope of the victimization. Finally, the article addresses the main challenges faced by the Chamber in the legal qualification of the criminal patterns identified, and how it resolved three key issues: the determination of the age threshold under which child recruitment constitutes a war crime, the definitions of the international humanitarian law status of protections of individuals within an armed group, and the classification of different forms of gender-based violence as war crimes.

Imagine a future where man and machine become one on the battlefield, where soldiers direct weapon systems through a neural implant. Research advances on brain–computer interfaces (BCIs) may eventually allow such control of arms at the speed of thought. This article sketches two modes of BCI-controlled weapon systems. In Mode A (active BCI), the soldier opens fire by actively imagining that he is pushing a button with his hand. By contrast, Mode B (reactive BCI) captures neural signals evoked instantly after having spotted a target, before the operator becomes consciously aware of it. If he deems the target lawful, the brain signal is translated into a command to fire. Arguing that such man–machine collaboration transforms the operating soldier into a means of warfare, this article conducts a weapon review in line with Article 36 of Additional Protocol I (AP I) to answer the question of whether BCIs can be lawfully used to control weapons in international armed conflict. Consequently, the two set-ups are reviewed on their compliance with the customary targeting principles of international humanitarian law. Since Mode B casts doubt on the amount of control that the soldier retains over his targeting decision, the concept of meaningful human control is transposed from the debate on lethal autonomous weapon systems and applied to BCIs. It is found that reactive BCIs cannot be meaningfully controlled and thus violate the principles of distinction and proportionality. Hence, reactive BCIs are unlawful under Article 36 of AP I.

The search for missing persons requires the implementation of national plans that integrate a combined judicial and humanitarian approach. This article examines how national search plans in Colombia, Chile, Mexico and Peru have incorporated international standards on the search, exhumation, recovery, protection, identification, and restitution of human remains of missing persons and victims of enforced disappearance. Through a comparative analysis between the search plans and international humanitarian and human rights law instruments, common elements in the regulation of these matters are identified. The research reveals that the national normative frameworks of the search plans incorporate international standards in a detailed and precise manner, but the effective implementation of these standards in practice is problematic. The study concludes that, despite normative advances, significant challenges remain in the search for and recovery of victims of enforced disappearance, requiring a renewed commitment by States to comply with their international obligations. By addressing these critical issues, the article not only contributes to the academic debate, but also invites attention to the need to imagine new interdisciplinary strategies aimed at improving the efficiency and effectiveness of efforts to search for victims of enforced disappearance in diverse transitional contexts.

This case note examines the International Court of Justice’s (ICJ) 2022 reparations judgment in Democratic Republic of the Congo v. Uganda, analyzing the Court’s legal reasoning, its evidentiary approach, and the implications for future reparations cases. The 2022 judgment follows the ICJ’s 2005 ruling that found Uganda responsible for violations of international law during its military intervention in the Democratic Republic of the Congo (DRC). Given the failure of negotiations between the parties, the ICJ determined the amount of reparations owed, awarding a global sum of $325 million – substantially lower than the DRC’s claim. The case addresses complex legal and evidentiary questions, including the causal link between Uganda’s wrongful acts and the damages claimed, the standard and burden of proof for reparations, and categorizing harm. The Court examined four heads of damage, which were damage to persons, damage to property, damage to natural resources and macroeconomic damage, dismissing the latter due to insufficient proof of causation. A key aspect of the judgment was the ICJ’s adoption of a global sum approach – an uncommon approach in the Court’s practice. This case note assesses the lack of clear reasoning and methodology for determining the exact amount awarded for each head of damage.

Additionally, the ICJ’s over-reliance on United Nations reports and its application of standards of proof raise concerns about consistency and clarity in reparations proceedings. This case sets a precedent for State responsibility in mass violations of international law but highlights challenges in quantifying harm and ensuring equitable reparations. The Court’s reasoning and methods in the case may influence future cases involving State responsibility, armed conflicts, and reparative justice under international law.

The tradition of sepulchre, the recognition that a human body has intrinsic emotional and moral worth to those left behind after death and thus should be handled with dignity and respect, is timeless and knows few cultural boundaries. Its basic tenets are codified in international humanitarian law (IHL) – but codification and interpretation are entirely different things. What does it mean to state that parties to a conflict should ensure that bodies are handled with “adequate care”? What constitutes adequate? What precisely does it mean that bodies should not be “despoiled”? US courts have wrestled with the rights of surviving family members – and the corresponding duties of society – for over 200 years and have slowly crafted a cohesive and comprehensive consensus body of law as it relates to sepulchre. This article presents some of the logic and rationale used by American jurists in the evolution of US common and statutory law controlling the management of the dead in the hope that it may provide some insight into the interpretation of IHL.

This article explores the implications of attaching military chaplains and similar religious personnel to State and non-State fighting forces, and what this means for international humanitarian law (IHL). IHL assigns religious personnel a non-combatant humanitarian function equivalent to medical personnel, stipulating that they should perform exclusively religious duties. This underestimates the scope of “religious” activity, however, particularly the moral dimension of their ministry and the force-multiplying and restraining effects that this has on combatant behaviour. As representatives of non-State institutions embedded within military structures, many religious personnel also enjoy a unique degree of access to – and separation from – the chain of command, and can leverage this autonomy to influence the conduct of hostilities. The more that religious personnel are invested in the achievement of a fighting force's military objectives and are involved in its military operations, the likelier it is that they will test the parameters of their humanitarian function, and the protections they enjoy, under IHL. Moreover, some clerics associated with fighting forces do not aspire to non-combatant or exclusively humanitarian status, and should not be considered religious personnel. It is in the midst of armed conflict that religious personnel are most needed, however, and the tensions and ambiguities between their religious and military support functions are integral to their cross-cutting role. The contribution that religious personnel can make to humanizing war, and socializing IHL or corresponding religious principles, depends on them being present to support combatants and not confining themselves to a separate, but less effectual, humanitarian space. Criteria for their humanitarian exclusivity, attachment to fighting forces and protections under IHL therefore require some clarification.

This article examines the role of international humanitarian law (IHL) in safeguarding artisanal fishing communities residing along the banks of the Magdalena River in Colombia after the recognition of the river as a rights-bearing entity1 and a victim of the armed conflict. The article also explores the potential of targeted peacebuilding interventions for achieving sustainable well-being, ecological restoration and enduring peace. Against the backdrop of historical conflict, the Magdalena River and its adjoining communities have suffered significant harm, requiring widespread reparations that go beyond immediate crisis management. The study proposes a comprehensive approach for achieving sustainable well-being, ecological restoration and enduring peace, acknowledging the complex connections between legal frameworks, environmental considerations and the cultural heritage of the riverine community.

Decision-makers rely on intelligence to make targeting decisions that comply with international humanitarian law (IHL), yet the relationship between intelligence and the law is not frequently discussed. This article explores crucial elements of intelligence and intelligence analysis that decision-makers should understand to increase their compliance with IHL, focusing on three crucial decision points: (1) the determination of whether a potential target is a military objective, (2) proportionality in attack analysis, and (3) the taking of effective precautions.

Enforced disappearance and death – and, by extension, the protection of the dead – are related to each other, but this relationship is more nuanced and sensitive that it may initially seem. An automatic equation between the two, as well as the hasty application of presumptions, triggers significant – and often undesirable – practical, legal and psychological consequences. This article explores how this ambiguity is, to a certain extent, unavoidable, and must therefore be reflected in the interpretation of the core international obligations related to enforced disappearance, namely the search for the disappeared, including through inter-State cooperation; investigation aimed at identifying those responsible for the crime, followed by prosecution and sanction; and the provision of psychosocial support and reparations for the harm suffered.

In the quest for “identity dominance” over the enemy, armed forces are increasingly leveraging biometrics for a variety of purposes. This paper focuses on the combat employment of one of them – facial recognition, which, unlike other biometrics, does not appear to have been widely utilized for targeting purposes yet. With the purchasing patterns of advanced militaries suggesting that such a development is around the corner, this paper assesses the compliance with international humanitarian law (IHL) of the use of facial recognition technologies for targeting purposes. It peruses the applicable legal framework to demonstrate that IHL is neutral towards the use of new technologies and that the right to privacy under international human rights law does not preclude the use of biometrics in hostilities. The analysis zooms in on two specific use cases in which facial recognition is likely to be employed on the battlefield, namely (1) targeted killings against combatants and (2) targeted killings against civilians directly participating in hostilities. The paper closes with an acknowledgment that while facial recognition does have obvious operational benefits, it also has the potential to exacerbate targeting practices that stretch the limits of IHL.

It is sometimes said that cruel yet short wars are better for humanity than restrained yet lengthy ones. The idea finds sympathy among Francis Lieber and his Prussian contemporaries, as well as some modern writers who back selective non-compliance with international humanitarian law (IHL) on act-utilitarian grounds. This article refutes three underlying claims and reaffirms that IHL progressively narrows room for crude interest-balancing by its duty-bearers. First, it is claimed that toughening wars quickens them, whereas moderating wars prolongs them. This empirical claim overlooks how actions of the party resorting to brutality – the “brutalizer”, for short – interact with the intention of its adversary. Although the brutalizer clearly controls the amount of violence that it chooses to inflict on its opponent, it does not control the opponent's will to resist and, consequently, the length of the war it fights. History abounds with instances where adding cruelty has stiffened the enemy's resolve rather than accelerating surrender. Second, it is claimed that ruthless but swift wars lessen net inhumanity. On this act-utilitarian view, it is normatively superior to hasten wars through barbarity than to lengthen them through moderation; it is therefore the brutalizer's responsibility to toughen fighting and the brutalized party's responsibility to refrain from resisting the brutalizer. Problematically, the brutalizer usurps authority by imposing its own utilitarian considerations upon the brutalized party. Moreover, the brutalizer blames its disobliging adversary for the extra bloodshed to which it resorts in the name of maximum utility. Third, it is claimed that IHL does or should permit non-conformity when non-conformity stands a reasonable chance of increasing net humanity. This position is inconsistent with IHL's functions, however. IHL does aim to reduce net wartime harm, but it would be a mistake to assume that utilitarian ends necessarily justify, let alone require, utilitarian means. When IHL enacts unqualified rules, it predetermines their conformity or non-conformity through processes that are distinctly not act-utilitarian. Nowhere in these processes do lesser-evil justifications naturally belong.

The “othering” of international humanitarian law has a demonstrated past resulting from the exclusion of so-called “Enemies of the Faith” from the laws of chivalry. It is no surprise, then, that the idea of “sharp war” should seem so natural to some commentators given its historical application “by the discretion of the commander and such rules of justice and humanity as recommend themselves in the particular circumstances of the case”. The application of humanitarian principles, in other words, was the measure of the commander's charity rather than the result of legal compulsion.

The viability of sharp war appears to have increased in attractiveness as conventional State-on-State warfare has seemingly decreased in frequency; however, the question of sharp war has never been approached through a legal historical lens. Utilizing the research found in The Laws of Yesterday's Wars, a multi-author series edited by the present author, this paper seeks to fill this gap by scoping over a range of geographically and temporally disconnected case studies and the customary law developed to mitigate warfare. Ultimately, the paper highlights that “soft war” has naturally evolved in all cultures and that arguments for sharp war are a historical anomaly.

This article provides the personal perspectives of US military operational attorneys and analyzes three significant challenges in applying international humanitarian law (IHL) to modern military space operations: the lack of clear standards for assessing when IHL rules govern particular military activities in outer space; the challenges of effectively distinguishing between civilian objects and military objectives when targeting space systems; and the difficulties of applying IHL rules of proportionality when attacking space systems. To address these challenges, the article argues that States should take steps to develop non-binding norms for military space operations that contribute to broader understanding of States’ views on how IHL applies in space.

How international law applies to the use of information and communications technology by States is still a matter of discussion. Against this background, cyberspace has become the main area of competition between States, and this competition, to put it simply, is resulting in a constant low-intensity warfare below the threshold for a use of force. Such low-intensity cyber warfare, from a legal point of view, revitalizes the debate over the concept of a “state of intermediacy” that has the potential to overcome the dichotomy between peace and war. In the present author's opinion, this state of intermediacy also supports the idea that the international humanitarian law (IHL) principle of distinction should be applied, even before the eruption of a full-scale war, whenever wartime means and capabilities are employed by States. This paper argues that some opacities in international law have created favourable conditions for such constant low-intensity warfare, and that tackling the identified opacities would therefore be beneficial in order to achieve a more peaceful cyberspace. Thus, the paper goes on to address one of the identified opacities, namely the definition of espionage under international law, because, as international law now stands, it does not allow us to tackle the other identified opacities. Finally, the paper discusses how the proposed narrow interpretation of espionage can cope with the IHL principle of distinction in the cyber domain.

Newly emerging US cyberspace warfighting concepts highlight the need to update US legal doctrine. Concepts adapted to future high-intensity, high-paced armed conflict, including command post dispersal and integration of cyberspace into other targeting domains, present opportunities to refine US understandings of the law of war attack threshold and overlooked rules applicable to destruction and seizure. The advantages of staking out clear and current opinio juris on these and other matters extend beyond providing responsible and consistent operational law advice. Updated and authoritative military cyber legal doctrine will serve the strategic and diplomatic legal interests of the United States and the international legal system as a whole.

Bearing in mind that the peace process between the Colombian government and the Revolutionary Armed Forces of Colombia – People's Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) has been an important milestone for transitional justice, this article aims to share some of the good practices and achievements of this process, as well as the setbacks and challenges that could be avoided in future peace processes. The article will highlight relevant contributions from the Chamber for Amnesty or Pardon (CAP) such as impacting the resocialization of former FARC-EP members and developing international humanitarian law discussions in relation to war crimes and less serious crimes. Additionally, it will describe some of the main challenges faced by the CAP, such as the high number of applications for transitional benefits that it receives, the high number of proceedings that it supervises, and the security concerns arising from implementing a peace agreement in a country still in conflict.

With the advent of socio-technical systems that gather and process personal data, the capacity to identify and even locate people in an automated fashion has dramatically increased. This article discusses what militaries need to know about data protection and the right to digital privacy/private life when personal data is processed. The focus in this discussion is on sensitive data that makes individuals identifiable. It is here argued that the right to data protection and the right to digital privacy/private life are distinctive and separate rights and should be treated as such, despite some overlaps. Although the law of armed conflict approaches processing of sensitive data in a topical manner, it remains firm on the delimitation between what is permissible and what becomes unlawful when it comes to processing data. This article illustrates that elements of both data protection and protection of the right to privacy/private life can be traced in the law of armed conflict. In fact, both rights remain distinctive also in times of armed conflict and must be separately protected through obligations of result as well as obligations of conduct.

This article outlines and evaluates several unique challenges associated with legal support to special operations. It describes the essential differences between special tactics, techniques and procedures and conventional military operations. It offers a US perspective on how treaty and customary international laws apply to various special operations, including precision attacks against “high-value targets”, hostage rescue missions, and support to partner and proxy forces. It examines the benefits and drawbacks of heavy reliance on special operations during armed conflict, including an assessment of the legal challenges that arise when special operations forces become a primary feature of a military campaign. Finally, it highlights how the assumption of substantial military and political risk impacts the application of international law to special operations at the tactical level.

This article delves into Sweden's evolving legal response to international crimes, notably focusing on the 2021 War Poses case before the Swedish Supreme Court. The case involves an Iraqi asylum-seeker charged with violating the personal dignity of several persons, presumed to be deceased, during a 2015 non-international armed conflict in Kirkuk, Iraq. A key contention is whether deceased individuals can be considered “protected persons” under Swedish war crimes legislation. The article examines the Swedish Supreme Court's decision, which deems deceased individuals as protected persons, drawing on the Rome Statute's Elements of Crimes. It examines the complexities surrounding the application of international humanitarian law (IHL) to cases involving the deceased and explores potential misinterpretations arising from the Court's brief and ambiguous reasoning. As Sweden grapples with the complexities of international criminal law, the article advocates for clarity and comprehensive discussion to ensure that justice is served while upholding accurate and harmonized definitions of fundamental concepts of IHL.