The outsourcing of traditionally military functions in Africa to private military companies (PMCs) such as the Wagner Group and the Africa Corps has been accompanied by violations of international humanitarian law and international human rights law. According to the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, state responsibility for these violations can be imputed to the states that employ PMCs to function as their agents, to exercise government authority or to act in the vacuum left by official authorities. States that do not intervene to prevent these abuses fail their obligations of due diligence through persistent non-action and should not be excused from demanding accountability by immunity agreements between the host and hiring states. We explore the possibility of the communitarian invocation of state responsibility by third-party states, on behalf of victims, in order to end impunity, drive accountability and secure effective redress for victims.

According to the dominant narrative in international humanitarian law, the 1949 Geneva Convention on Civilians is part of the discipline’s humanitarian progress, driven by the International Committee of the Red Cross, in response to atrocities committed during World War II. This paper argues that historical research enables a more nuanced historical account which challenges when, how and by whom the protection of civilians was developed. It demonstrates that the Convention’s protection regime was shaped by the efforts of a variety of non-state actors during the inter-war years. In particular, it focuses on attempts by the International Committee of the Red Cross, International Law Association and International Committee of Military Medicine and Pharmacy to advance the law independently and in cooperation in relation to ‘enemy civilians’ and safety zones after World War I. However, it suggests that these actors were to some extent inhibited by conceptual limitations and self-restraint, which ultimately led to some of the weaknesses in the protection regime under the 1949 ‘Civilian Convention’. The paper thus reveals the struggle over the conceptualisation of individuals who are today considered civilians in the inter-war years which is embedded in the text of the adopted treaty.

When people die in the context of armed conflicts, international humanitarian law (IHL) provides important legal protection for the dead and their families. Overall, it seeks to ensure that the dead are respected and recovered no matter who they were, and that information on them is collected with a view to identification. A key aim of these IHL rules is to uphold the right of families to know the fate of their relatives. Recognizing the inherent difficulties of accounting for those who have gone missing or died, these rules continue to apply even after the end of conflict. This article provides an overview of the IHL obligations protecting the dead in international and non-international armed conflicts, complemented by other bodies of international law. It then focuses on key legal questions arising in contemporary wars and practical implications for warring parties on processes to account for the dead, respect for the deceased and their graves, and the return of human remains to their families. Finally, the article explores issues of practice and key recommendations to drive forward action by States and parties to armed conflict in order to effectively integrate and apply obligations on the ground.

In its Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, the International Court of Justice (ICJ) ruled not only that Israeli policies and practices in the occupied territory systematically violated international law, but also that Israel’s ‘continued presence’ (i.e. occupation) as such had become illegal, so that Israel was required to withdraw from the Occupied Palestinian Territories as rapidly as possible. The ICJ’s finding that Israel engaged in a sustained abuse of its position as an occupying power, through annexation of territory and frustration of Palestinian self-determination, was central to its reasoning, as was its holding that the legality of the occupation was to be judged against the jus ad bellum. This article unpacks the concept of an illegal occupation. It argues that, as matter of the jus ad bellum, it is only the right to self-defence that could, in theory, justify Israel’s continued occupation. Curiously, however, the Opinion does not mention self-defence, although it preoccupied many of the judges writing separately. The article argues that two approaches to the occupation’s ad bellum illegality are most persuasive: first, that the occupation could not meet the necessity and proportionality criteria of lawful self-defence; and, second, that even a valid self-defence claim can be vitiated by a predominant ulterior purpose.

Since Russian President Vladimir Putin announced his support for a plan to recruit fighters from abroad to join the Russian army in early 2022, foreigners have fought in Ukraine as part of Russian forces. Many of these fighters are mercenaries in the commonly understood sense of that term. That is, they are fighters who have gone, intentionally, to fight for Russia in return for significant payment. Although these fighters have often found themselves in Ukraine with little to no training and without their promised salaries, this article is not primarily concerned with them. Instead, it is interested in those fighters who arrived in Russia without knowing that they would be sent to the conflict, or who did not know that they were going to Russia at all. The article argues that such ‘forced fighters’ who are misled or tricked into taking part in an armed conflict should be given protection beyond that given to other combatants, specifically that they should be offered repatriation to their countries of origin. It argues that international humanitarian law is unable to effectively capture the position of these fighters or provide adequate protection to them. It suggests, rather, that the law on modern slavery can provide a way to understand and reconceptualise the position of these fighters—as victims of servitude and human trafficking—and that this body of law can deliver the remedy of repatriation to them.

International treaties commonly request States to submit periodic reports on measures adopted to facilitate compliance with relevant obligations, permitting them to identify shortcomings and develop appropriate policies, promote transparency and facilitate the exchange of good practices. International humanitarian law (IHL) might appear at odds with this approach as its core instruments do not establish a periodic reporting procedure; indeed, only limited reporting activities have been required from States party to the Geneva Conventions and their Additional Protocols. The present paper challenges this perspective, exploring mandatory periodic national reporting activities provided by other treaties forming part of the IHL framework, as in relation to cultural property and weapons systems, as well as more informal reporting mechanisms on IHL developed outside treaty regimes, including those addressing organized armed groups. Taking stock of existing approaches and practices, the paper identifies relevant trends, opportunities and challenges for IHL reporting activities.

In their analyses of specific cases involving armed conflict, the European Court of Human Rights and the Inter-American Court of Human Rights have acted as monitoring bodies for international humanitarian law (IHL) by factoring that body of law into their interpretation of human rights and State obligations set out in the European and American Conventions on Human Rights. In this article, the author argues that, in such cases, the two courts also acted as monitoring bodies for the rules of IHL designed to protect the dead and missing in both international and non-international armed conflicts. This monitoring function is apparent in the two courts’ judgments, which uphold the obligations of States to search for and identify the dead and missing in armed conflicts, to bury the remains of the dead and to investigate unlawful deaths and cases of forcible disappearance. The author concludes that not only has IHL bolstered the interpretation of the European and American Conventions on Human Rights, but that those two instruments and their interpretation have expanded the content and scope of the rules of IHL that protect the dead and missing in armed conflict.

International human rights law (IHRL) provides extensive protections for the living, but little in the way of direct protections for the dead. International humanitarian law (IHL) has more detailed protections for the dead, but is only triggered during armed conflicts. At first glance, this seems to create a protection gap for the dead during peacetime. This article explores how the Convention on the Rights of Persons with Disabilities (CRPD) creates a connection between IHL, IHRL and transitional justice to fill in this perceived gap in protections for the dead. While the CRPD does not explicitly address the dead, IHL contains several specific rules to guide how dead bodies are to be handled. When read together with the CRPD framework, these rules provide ample guidance on the treatment of individuals with disabilities after death. Some IHL protections of the dead extend temporally beyond the conflict, when transitional justice mechanisms should be in play, although neither the CRPD nor IHL address with any specificity how the five pillars of transitional justice – truth, justice, reparation, memorialization and guarantees of non-recurrence – might apply in relation to IHL rules regarding dead bodies. Nonetheless, Article 11 of the CRPD forges a bidirectional link to IHL protections and obligations supporting transitional justice. Accordingly, there is a legal framework for examining the interrelationships between rules in the CRPD, IHL and human rights law writ large, and for how we think about dead bodies under the various regimes of international law. Each ought to inform the others if the implications of CRPD Article 11 are to be fully realized and the siloing and fragmentation of international law avoided.

The Geneva Conventions invite the parties to a non-international armed conflict (NIAC) to conclude special agreements (SAs) according to common Article 3(3). However, the lack of definition and insufficient coverage of such agreements by scholars and legal authorities increase the confusion between that mechanism and other agreements occurring in NIACs. This paper offers a contemporary and functional definition of SAs in order to better demonstrate their importance for NIAC regulation based on practice-informed lessons and, incidentally, to advocate for an increased use of those instruments. The data analyzed throughout this article reveal various lessons that will illustrate the potential of SAs. Among the teachings revealed by practice is the expanded material scope of these instruments or the possible ways in which the parties can choose to draft their commitments. In addition, the records of practice reveal how SAs concretely improve the regime of NIACs, and the implementation approaches generally adopted. For a more complete study of the dynamics of SAs, the paper equally draws attention to their formal and personal characteristics. All these features turn SAs into powerful international humanitarian law (IHL) tools that are flexible enough to upgrade the applicable law of NIACs while respecting some necessary boundaries in order to guarantee the validity of the obligations embedded. This is an essential balance for IHL and international legal order consistency.

The circulation of harrowing war images on traditional and social media – beheaded soldiers, mutilated bodies and civilians burned alive by flames – underscores a profound and enduring connection between war, death and photography. While this nexus is not novel, contemporary developments in the speed, scale and permanence of visual media have opened new questions worth examining. This article aims to dig deeper into whether and how the normative landscape for protecting the inherent dignity of the deceased is evolving and the role that new challenges posed by digital media and the pervasive nature of contemporary visual media play in this process. The relevance of this study rests on the premise that ongoing academic and public debates tend to focus on the issue of media censorship, overshadowing critical inquiries into the legitimacy and legality of the display of certain images. Thus, it is argued that, in the context of publishing and disseminating images of the war dead, it is essential to examine not only what is hidden but also what is shown and how. This is especially pertinent given the asymmetric representation of death and conflict in the Western media, which frequently reinforces distant, “othering” perspectives. Finally, by examining the issue through multiple lenses, namely those of international humanitarian law, international human rights law and international criminal law, this study aims to provide a more comprehensive framework for addressing the ethical and legal dilemmas posed by war photography in the digital age.

Judge Roberto Carlos Vidal López is a Lawyer and Professor at the Pontificia Universidad Javeriana in Bogotá, where he gained a PhD in law. Since 1997 he has been a Professor and Expert Researcher there on human rights, international humanitarian law (IHL), forced migration and internal displacement. He has also studied history.

In addition to his work as a Professor, Judge Vidal López has been a Lecturer at the Universidad del Rosario and a Visiting Researcher at the University of Essex in the United Kingdom. He has worked for the Ideas for Peace Foundation, the United Nations in Colombia, the International Association for the Study of Forced Migration, the University Network for Peace, the Ombudsman’s Office of Colombia and the Brookings Institution, a major Washington-based think tank. He has also produced thirty publications, including Truth-Telling and Internal Displacement in Colombia (2012), The Participation of Internally Displaced People in Peace Processes in Colombia (2007) and Derecho global y desplazamiento interno: Creación, uso y desaparición del desplazamiento forzado por la violencia en el derecho contemporáneo (2007).

Data has become central in various activities during armed conflict, including the identification of deceased persons. While the use of data-based methods can significantly improve the efficiency of efforts to identify the dead and inform their families about their fate, data can equally enable harm. This article analyzes the obligations that arise for States regarding the processing of data related to the identification of deceased persons. Despite being drafted long before the “age of data”, several international humanitarian law (IHL) provisions can be considered to give rise to obligations which protect those whose data is used to identify the dead from certain data-based harms. However, some of these protections are based on a data protection-friendly interpretation of more general obligations, and many only apply in international armed conflict. Against this background, it is suggested that further analysis on how international human rights law and domestic or regional data protection law could help to strengthen the case for data protection where IHL does not contain specific duties to protect data would be desirable.

The legitimacy of armed forces in the eyes of civilians is increasingly recognized as crucial not only for battlefield effectiveness but also for conflict resolution and peace building. However, the concept of “military legitimacy” remains under-theorized and its determinants poorly understood. We argue that perceptions of military legitimacy are shaped by two key dimensions of warfare: just cause and just conduct. Leveraging naturally occurring variation during one of the deadliest urban battles in recent history—the multinational campaign to defeat the Islamic State in Mosul, Iraq—we evaluate our theory using a mixed-methods design that combines original survey data, satellite imagery, and interviews. Civilians living in neighborhoods where armed forces were less careful to protect civilians view those forces as less legitimate than civilians elsewhere. Surprisingly, these results persist after conditioning on personal experiences of harm, suggesting that perceptions are influenced not only by victimization—consistent with previous studies—but also by beliefs about the morality of armed forces’ conduct and the cause for which they are fighting.

While sexual violence is receiving increasing attention in terms of international humanitarian and criminal law, and on the world political scene, this does not apply to all aspects of such crimes. Sexual acts on dead bodies are a common practice in times of armed conflict, constituting an affront to universal moral values that exacerbates the violence, domination and humiliation which motivates such abuses. However, such crimes have rarely been prosecuted under international criminal law, and where they have, perpetrators have been charged with umbrella offences or in connection with the protection of human dignity rather than with sexual offences. To explain this tendency, the present article takes stock of the legal treatment of sexual violence on dead bodies, examining the legal, philosophical and moral concepts that apply, with a view to obtaining recognition of such acts as sexual offences.

Although there is one law, there are many motivations for complying with it. This was one of the key findings of the Roots of Restraint in War study published in 2018 by the International Committee of the Red Cross (ICRC). Building on this insight, this article examines a few recent accounts of international humanitarian law (IHL) violations and two general categories of psychological states which may have given rise to them. It then explores the modern-day value of warrior codes and martial notions of honour, and reviews the ICRC’s recent work to find convergences between IHL and various religious or traditional value systems. The article offers some important caveats which should be kept in mind when undertaking work which compares morality, ethics and the law, before finally presenting some implications of this work for IHL integration and dissemination activities. Civilian IHL practitioners do not need to embed themselves into military life in order to understand military perspectives on IHL, but it would be helpful for them to consider the many ways in which troops internalize norms and how to incorporate extra-legal concepts into IHL integration and dissemination activities in an appropriate way.

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.

Artificial Intelligence (AI) has enriched the lives of people around the globe. However, the emergence of AI-powered lethal autonomous weapon systems (LAWS) has become a significant concern for the international community. LAWS are computer-based weapon systems capable of completing their missions, including identifying and engaging targets without direct human intervention. The use of such weapons poses significant challenges to compliance with international humanitarian and human rights law. Scholars have extensively examined LAWS in the context of humanitarian law; however, their implications for human rights warrant further discussion. Against this backdrop, this paper analyzes the human rights challenges posed by LAWS under international law. It argues that using LAWS in warfare and domestic law enforcement operations could violate human rights, such as the rights to life, human dignity, and remedy, among others. Thus, it calls for a prohibition of the use of killer robots against humans.

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.