International tribunal backlash remains poorly understood: hampered by conceptual challenges, systematic research into the causes of this phenomenon remains nascent. The present article makes two contributions to advancing this endeavour. First, building on existing literature, it sets out a working definition of international tribunal backlash, tailored to facilitate mixed method empirical research into the causes of backlash across institutions and sectors. Second, drawing on international relations’ pluralist turn, the article provides an analytically eclectic theoretical scaffold for causal analysis of international tribunal backlash, enabling standardised cross-institutional and sectoral comparison without over-simplifying the complexity of backlash in various instances. The article accordingly provides the building blocks for improved understanding of the causes of – and the potential scope to manage – international tribunal backlash across institutions, regions and sectors.

The restriction of personal liberty is a critical feature in all conflicts, whether they are of an international character or not. With the increased prevalence of non-international armed conflict and the drastic proliferation of non-state armed groups, it is critical to explore whether such groups can legally detain or intern persons during conflict. This article proposes that there exists a power and a legal basis for armed groups to intern persons for imperative security reasons while engaged in armed conflict. It is suggested that this authorisation exists in the frameworks of both international humanitarian law and international human rights law, as it does for states engaged in such conflicts. It is proposed that such power and legal basis are particularly strong for armed groups in control of territory, and can be gleaned from certain customary law claims, treaty law, as well as some case law on international humanitarian law and human rights. Certain case law of the European Court of Human Rights on detention by de facto non-state entities conceivably reflects a change in traditional thinking on ‘legal’ detention by armed groups.

The article examines the legal qualification of state-led information operations that aim to undermine democratic decision-making processes in other states. After a survey of the legal attitudes of states towards such operations during the Cold War, the impact of the digital transformation on the frequency and quality of information operations is explained. The article assesses scholarly responses to the outlined paradigm shift regarding the prohibition of intervention, respect for sovereignty, and the principle of self-determination. The study then inquires whether it is possible to detect a change in how states qualify adversarial information operations by tracking recent state practice and official statements of opinio juris. The survey concludes that there is insufficient uniformity to allow for an inference that the content of the analysed rules of customary international law has already shifted towards more restrictive treatment of foreign interference. As a possible way forward, the article ends with a proposal to focus on deceptive and manipulative conduct of information operations as the most viable path to outlaw such state behaviour in the future. Instead of attempting to regulate the content of information, this approach is better suited to safeguard freedom of speech and other potentially affected civil rights.

In some non-international armed conflicts (NIACs) a foreign state is involved in favour of an armed group. This poses a challenge to classifying these armed conflicts under IHL. This article argues that evaluating the actions of a foreign state is best carried out by application of the ‘overall control’ test as developed by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in the Tadić case. The advantages of this approach are twofold. First, it is a more realistic benchmark for generating the required evidence than the complete dependency or effective control tests developed by the International Court of Justice. Second, using this test makes it less likely for a state to escape its responsibilities under IHL when it acts through armed groups in a prima facie NIAC on the territory of another state. To arrive at this conclusion, the article first critically discusses the different control tests. It then advances that Article 4 of Geneva Convention III 1949 and Article 29 of Geneva Convention IV 1949 themselves contain a threshold of control that can be used to identify foreign state participation in a prima facie NIAC.

The realities of contemporary armed conflicts with a complex interweaving net of actors are rarely reminiscent of classic combat scenarios envisaged by the drafters of the Geneva Conventions. The scarcity of conventional regulation of non-international armed conflicts (NIACs), coupled with the non-state character of the majority of detaining powers, lead to lack of clarity regarding the legal regime of detention of persons captured by non-state armed groups (NSAGs). In the absence of an explicit authorisation for internment under the international humanitarian law applicable to NIACs, recent developments in case law have induced a scholarly debate on what is the legal basis for administrative detention carried out by these actors. The article analyses key arguments presented by both sides of the debate, concluding that neither side can demonstrate either the existence or the absence of the authorisation in question, while the discussion itself has limited practical value in regulating the conduct of NSAGs. At the same time, the practice of states, although still ambivalent, points to the gradual transformation of mere legality, or the so-called ‘inherent power’ to intern, into a customary provision providing a legal basis for administrative detention by NSAGs.

In December 2006 the Israeli High Court of Justice delivered its ruling in the Targeted Killing case (HCJ 769/02). The Court laid out four criteria that must be met for operations conducted as part of Israel's targeted killing policy to be performed legally, and imposed on the state two safeguards to ensure that each operation complies with these criteria. This research examines whether Israel has complied with the ruling in its post-2006 targeted killing operations. The article presents strong evidence which suggests that Israel complies with the Court's four requirements, although there is insufficient information to render a definitive conclusion regarding requirement 3, the principle of proportionality. However, the evidence also casts doubt on Israel's conformity with the two safeguards. The most significant issues revolve around Israel's implementation of and compliance with safeguard 1, the independent ex post facto investigative committee, which should review operations that cause civilian casualties. These concerns include the composition of the committee, its objectivity and independence. In addition, Israel's evolving understanding of the legal status of terrorists has significantly narrowed the jurisdiction of the committee and the HCJ's ruling more generally. These issues are exacerbated by the absence of evidence that safeguard 2, judicial oversight, has occurred.

Contrary to the ‘rupture thesis’ favoured in Anglo-American academic discourse, Nazi criminal law did not emerge from a vacuum; nor did it disappear after 1945. The article explains and defends this ‘continuity thesis’. In fact, Nazi criminal law adopted earlier authoritarian tendencies of German criminal law and exacerbated them (the ‘radicalisation thesis’). It is for this reason that Nazi criminal law should not lightly be dismissed as ‘non-law’, thus omitting any further engagement with it. The article will show that the same continuity and radicalisation arguments can be made, mutatis mutandis, for German Nazi criminology, which ultimately became a legitimating science (‘Legitimationswissenschaft’) for Nazi criminal justice policy. The argument is developed in four stages. First, an account is given of the racist and criminal-biologistic foundations of National Socialist criminology, including their continuity both with the past and into the future. This is followed by an explanation of the influence of criminal anthropology (particularly that of Lombroso) on the ‘scientification’ of criminology (the ‘Kraepelin and Aschaffenburg paradigms’). Third, the National Socialist radicalisation of criminology on the basis of the criminal-biological utopia of the ‘blood-based’ Volksgemeinschaft is described. Thus, Nazi criminology derived its strength from and built upon biological theories of crime, which in turn laid the foundations of the deadly Nazi criminal justice policy. The discipline became a science that legitimated National Socialism, contrary to Wetzell's thesis of a somewhat dissident ‘mainstream criminology’. With regard to disturbing developments in current German politics, all this will make clear that the approach of the (German) ‘New Right’ to criminal justice is not novel at all but is derived from the ideologically infused theories and policies of Nazi criminologists during the 1930s.

The participation of foreign fighters on the side of terrorist groups has raised many questions about the legal basis for the criminal prosecution of acts of terror during armed conflicts. In cases regarding the commission of terrorist crimes with transnational elements, such as the foreign nationality of the alleged perpetrator, cooperation with other states in matters such as extradition or mutual legal assistance can be crucial. This study will analyse two regimes that may constitute a legal basis for cooperation in criminal matters against acts of terror committed during armed conflicts: (i) the rules on criminal responsibility under international humanitarian law (IHL), and (ii) the United Nations framework of anti-terrorist conventions. IHL has been seen by many as the only framework applicable to acts committed during armed conflicts. In contrast, the position adopted in this article is that IHL does not necessarily exclude the application of other regimes to acts committed during armed conflicts, which can serve as a complementary tool in international efforts for the prevention and suppression of terrorism.

This article discusses the military campaign against the ‘Islamic State’ (Daesh) in an attempt to illustrate the gaps in the international legal framework that regulates the use of force in dealing with a challenge such as that presented by the Islamic State. This case study was demanding given the need to reconcile state-centred rules with a diverse reality which includes several players, and particularly non-state armed groups in control of territory and population. In order to deal with this issue, the article proposes the invocation of a functional approach, compared with a binary approach, which is suitable in cases where several players exercise power in the same territory. In particular, it suggests that the Islamic State could have been treated functionally as a state for the purposes of self-defence or collective security measures, rather than invoking legal doctrines of unclear status that might result in undermining the international legal system they are invoked to protect.

The book Core Concepts in Criminal Law and Criminal Justice: Anglo-German Dialogues is the first volume of an Anglo-German project which aims ‘to explore the foundational principles and concepts that underpin the different domestic systems and local rules’. It offers comparative perspectives on German and Anglo-American criminal law and criminal justice as ‘examples of the civil law and the common law worlds’. The comparisons ‘dig beneath the superficial similarities or differences between legal rules to identify and compare the underlying concepts, values, principles, and structures of thought’. The review essay focuses on the topics of omissions, preparatory offences, and participation in crime, all of which extend the typical criminal liability. It presents the comparative German and Anglo-American perspectives discussed in the book with regard to each topic and adds the perspective of Israeli criminal law. It points out the features common to all these topics as an extension of criminal liability and discusses the underlying considerations that justify the criminalisation of omissions, preparatory offences, and participation in crime. In evaluating whether extending criminal liability in these contexts is justified, the review essay suggests reliance on two main notions: that of ‘control over the commission of the offence’ and that of ‘liberty (or personal freedom)’.

The article seeks to shed light on a lacuna in the law and international adjudication regarding the entitlement of coastal states to the exclusive economic zone (EEZ), by analysing the implicit requirement in the UN Convention on the Law of the Sea of proclamation to establish such entitlement. The main argument of the article is that despite the requirement for proclamation, there is no definition of this act in international law that clarifies its legal status. Nonetheless, failure to heed the requirement to proclaim an EEZ can affect the establishment of the EEZ, which in turn affects the rights and jurisdictions of coastal states in the zone. It can also affect the competence of judicial institutions to decide on matters such as delimitation of overlapping zones.

There seems to have been a shift in the state-centric vision of international relations, following the increasing role of non-state actors (NSAs) on the international scene, particularly in the context of armed conflicts. Ezequiel Heffes, Marcos Kotlik and Manuel Ventura, editors of International Humanitarian Law and Non-State Actors, present through this collection of contributions an overview of legal issues arising from this new reality. The editors draw on their personal experience to explain how NSAs contribute to the development of international humanitarian law (IHL) and to suggest that in order to promote respect for IHL by all parties involved in an armed conflict, this new role should be given due consideration from a legal standpoint. The review aims to confront critically the position taken in the volume, assessing the pros and cons of an increased recognition (and potential legitimisation) of NSAs, with a particular focus on non-state armed groups. It discusses, in particular, the implications of this process for the exercise of sovereign rights and respect for fundamental guarantees, especially in relation to the powers to detain and to adjudicate.

Ever since the Wednesbury decision in 1947, United Kingdom public law has been applying the concepts of ‘rationality’ and ‘reasonableness’ indistinguishably. Rationality has also been used as a ‘mega-ground of judicial review’, covering many other, distinct grounds of review. The main purpose of this article is to promote conceptual clarity in UK public law by highlighting the overlooked differences between reasonableness and rationality, indicating the nature of rationality as a distinct ground of judicial review and explaining why it should not be used as a mega-ground of review. It is argued that (i) reasonableness is in its essence a balancing and weighing test; (ii) the most accurate way of understanding rationality review in public law is to perceive it as ‘instrumental rationality’ or as a ‘suitability test’ which reviews the logical and causal connection between means and end; (iii) this ‘instrumental’ perception of rationality is already applied in UK public law as part of the proportionality test; (iv) rationality, unlike reasonableness, is not a weighing and balancing test; thus it is wrong to use the concepts of ‘reasonableness review’ and ‘rationality review’ indistinguishably; and (v) it is conceptually wrong and confusing to use rationality as a ‘mega-ground of review’.

The conventional historic account maintains that international criminal law (ICL) was ‘born’ after the Second World War. This account is incomplete, as William Schabas's book, The Trial of the Kaiser (2018), captivatingly shows by richly portraying the (aborted) First World War initiative to try the German Kaiser before an international tribunal. However, this article (after providing an overview of Schabas's book) argues that Schabas's account of a First World War ICL ‘birth’ is also incomplete. ICL during the First World War era was but one link in a much longer historical chain. The essay demonstrates this fact by presenting certain elements of the long (forgotten) history of ICL, which provide answers to questions that have been left unanswered, not only by the conventional account (of a Second World War ICL ‘birth’) but also by Schabas's account (of a First World War ICL ‘birth’). As the article discusses, the unveiling of a greater ICL history indicates that international criminal tribunals are not a modern innovation, and reveals the origins of ‘crimes against humanity’, of ‘aggression’ and of the universal jurisdiction doctrine. The essay further discusses reasons for the non-remembrance of the long history of ICL, the importance of acknowledging that history, and the likelihood of it becoming widely acknowledged in the near future.