In its jurisprudence, the ICJ has developed a hierarchy of sources it will rely on to resolve territorial disputes: it prioritizes a boundary treaty between the state litigants, followed by agreements between the states’ colonial predecessors, and finally state litigants’ actions displaying their authority over the disputed territory. The Court’s practice therefore leaves no room for local populations to contribute to boundary-making decisions. Given the status self-determination holds in international law today, and the repercussions possibly faced by such populations in certain territorial disputes, there is cause to consider that the desires of local populations should be considered in the Court’s legal reasoning. This article first unpacks the reasons that self-determination is not brought up by state litigants on one hand, nor by the Court on the other hand. It notes that self-determination is only rhetorically addressed by states if buttressing their interests. It therefore attempts to reconcile self-determination with territorial disputes, suggesting how peoples’ desires may be factored into the Court’s approach.

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.

On April 11, 1994, approximately two thousand men, women, and children were brutally murdered by armed Hutu extremists after a group of Belgian UN peacekeepers abandoned the school facility where they had sought refuge upon the outbreak of the Rwandan genocide. Almost a quarter of a century later, the Brussels Court of Appeal (Court) on June 8, 2018 concluded the civil proceedings lodged by a number of Rwandan survivors and relatives against the Belgian commanding officers and the Belgian state. Overturning an earlier judgment of the Brussels Court of First Instance, the Court held that the decision to retreat from the facility was imputable only to the United Nations, to the exclusion of the Belgian authorities. Accordingly, the claims against the Belgian state were unfounded. The events—which inspired the movie Shooting Dogs (2005)—bear obvious similarities to the role of the United Nations Protection Force's (UNPROFOR) Dutch battalion (Dutchbat) in the evacuation of the Potoçari camp and the ensuing genocide of seven thousand Bosnian men and boys by Bosnian Serb forces in Srebrenica in 1995. Like the Dutch judgments in the (more well-known) Mothers of Srebrenica proceedings, the Mukeshimana appellate judgment provides a rare national court precedent that considers the imputability of the conduct of peacekeepers to troop-contributing countries. The Mukeshimana judgment, however, raises a high bar for finding such imputability.

The absence of control of a territorial state over part of its physical territory is closely associated with online human rights violations, on the one hand, and the state's restricted (but not necessarily absent) control over the cyberspace, on the other. Notwithstanding the lack of its effective territorial control, the territorial state continues to be entitled to exercise its sovereignty over both territory and cyberspace. The consequence of sovereignty in international human rights law is the territorial state's presumed jurisdiction over its entire national territory. The article claims that the territorial state, while lacking the effective means to control its cyberspace fully as it does in the government-controlled areas, has continuing jurisdiction, and consequently obligations, to protect human rights online from wrongful acts that originate, occur or have effect in the area outside its effective control. Treaty monitoring bodies have recommended various positive measures that any territorial state is required to take while seeking to restore its ‘internet sovereignty’ in the separatist region, depending on the means in its power that are feasible in the particular situation.

This article clarifies the control a State should have over an armed group for the triggering act of an international armed conflict and for the internationalization of non-international armed conflicts in international humanitarian law. It explains the reasons for the distinction between these two types of attribution and details the specificities of each test, with an innovative approach. The author proposes new control tests for both triggering and internationalization, rejecting the effective and overall control tests regarding internationalization proposed by the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia. For instance, regarding the internationalization of a non-international armed conflict, a general and strict control test is proposed. Finally, this article addresses specific issues like the difficult question of the control required for an occupation through an armed group.

Despite the general consistency in the treatment of international humanitarian law by international courts and tribunals, recent decisions have seen significant disagreement regarding the scope of indirect responsibility for individuals and States for the provision of aid or assistance to non-State actors that perpetrate war crimes. The divisions at the international criminal tribunals with regard to the “specific direction” element of aiding and abetting are reminiscent of the divergence between the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia on the question of State responsibility for supporting or assisting non-State actors that engage in violations of international law. This article analyzes this jurisprudence on individual and State responsibility for the provision of support to non-State actors that breach international humanitarian law, and considers the interaction and interrelationship between these related but distinct forms of responsibility.

This article examines attribution of conduct and responsibility in peace support operations, which is, and will continue to be, a troubling subject of international law. It particularly examines two specific questions: what is the proper test for attribution of conduct, and whether and, if so, how dual attribution of conduct and responsibility can be established in international joint operations? As regards the former question, a brief critique of the major case law and documents recently dealing with attribution of conduct and responsibility in peace support operations shows that Behrami and Saramati poses a serious obstacle to determining the most suitable test without any confusion, thus there is a strong need to radically depart from this decision of the European Court of Human Rights. With respect to the latter, the meaning of the 'effective control' criterion, which is to be the basis for dual attribution in joint military missions, ought to be clarified. In this respect, the Mustafić and Nuhanović judgments delivered by The Hague Appeal Court and the Supreme Court of the Netherlands, to which the article pays special attention, are exemplary – to the extent that the latter did not conflate the notion of dual attribution of conduct with that of (dual or) multiple attribution of responsibility – and these judgments can be seen as a source of inspiration for the future application of the ‘effective control’ standard in practice.

On February 28, 2013, the appeals chamber (Chamber) of the International Criminal Tribunal for the Former Yugoslavia (ICTY) overturned the 2011 conviction of General Momčilo Perišsicć, the former head of the Yugoslav Army (VJ), for aiding and abetting war crimes in Bosnia-Herzegovina and Croatia. By a 4-1 vote, the Chamber held that “specific direction” is an essential element of liability for the actus reus of aiding and abetting the crimes of murder, extermination, inhumane acts, attacks on civilians, and persecution as crimes against humanity and/or violations of the laws or customs of war. It also held that Perišsicć lacked the necessary “effective control” over his subordinates to subject him to command responsibility for their violations of the laws and customs of war.

International humanitarian law (IHL) does not provide a precise definition of the notion of occupation, nor does it propose clear-cut standards for determining when an occupation starts and when its ends. This article analyses in detail the notion of occupation under IHL and its constitutive elements, and sets out a legal test for identifying when a situation qualifies as an occupation for the purposes of IHL. It concludes by suggesting an adjustment of the legal test to the specific characteristics of occupation by proxy and occupation by multinational forces.

In Nuhanović and Mustafić (5 July 2011), the Court of Appeal of The Hague held the Netherlands liable under Bosnian torts law in relation to acts of Dutchbat in the days following the fall of Srebrenica. The claims were brought by relatives of victims killed by Mladić's troops after being evicted from the Dutchbat premises, where they had sought refuge. When resorting to international law to attribute the conduct to the Netherlands, the Court shed light on the concrete meaning of ‘effective control’ when a wrongful conduct does not result from direct orders, thereby clarifying some of the questions surrounding the determination of responsibility for conducts in the framework of international organizations.

In Al-Skeini v. United Kingdom, decided on July 7, 2011, the Grand Chamber of the European Court of Human Rights in Strasbourg (the Court) found that the human rights obligations of the United Kingdom applied to its actions in Iraq and that the United Kingdom had violated Article 2 (right to life) of the European Convention on the Protection of Human Rights and Fundamental Freedoms (Convention or ECHR) by failing to investigate the circumstances of the deaths of the relatives of five of the six applicants. The case deals with the extraterritorial application in Iraq of the Convention, which is part of UK domestic law by virtue of the Human Rights Act, 1998, and involves the concepts of jurisdiction, effective control, and the scope of the right to life.