Despite the growing attention being paid to “victims” in the framework of criminal proceedings, this attention does not seem to be meeting their needs under either national criminal justice systems or the international regime. In the latter, the difficulties encountered by the victims are aggravated by factors specifically arising from the prosecution and punishment of mass crimes at international level. This has prompted the authors to point out that the prime purpose of criminal law is to convict or acquit the accused, and to suggest that the task of attending to the victims should perhaps be left to other entities.

Acts of torture are conceptualized as crimes of obedience, which are inevitably linked to crimes at higher levels of the hierarchy, where orders are issued, policy is formulated, and the atmosphere conducive to acts of torture is created. The present analysis suggests several conditions under which torture becomes an instrument of State policy and the authority structure of the State is fully utilized to implement that policy: the perception by State authorities that the security of the State is under severe threat — which, at the macro-level, can justify torture and, at the micro-level, contribute to its authorization; the existence of an elaborate and powerful apparatus charged with protecting the security of the State — which, at the macro-level, may lead to the recruitment and training of professional torturers as part of that apparatus and, at the micro-level, contribute to the routinization of torture; and the existence of disaffected ethnic, religious, political, or other groups within (or under the control) of the State that do not enjoy full citizenship rights — which, at the macro-level, may lead to their designation as enemies of the State and appropriate targets for torture and, at the micro-level, their dehumanization.

The terms “neutral” and “humanitarian” crop up frequently in the vocabulary of international relations, thus demonstrating the credence placed in the attributes of neutrality and everything to which the word “humanitarian” can apply.

This article argues that attempts to regulate the private military and security industry have been stymied by a tendency to be constantly ‘regulating the last war’ or responding to the challenges of a previous manifestation of private force rather than dealing with the current challenges. It argues that states ought to more clearly consider the direction of the industry rather than regulate in response to crises, an approach that has left regulation unequipped to deal with two fields of PSC growth: the use of PSCs against piracy, and to deliver and support humanitarian aid.

The evolving global environment in which humanitarian actors operate is posing profound challenges, both in terms of the increasing complexity of major crises and their impact on affected people, and in terms of the changes within the humanitarian sector itself as it tries to respond. This article gives one perspective of what the International Committee of the Red Cross (ICRC) considers to be some of the key challenges facing humanitarian action now and in the coming years, and how the institution aims to address these challenges while remaining faithful to its fundamental principles of impartiality, neutrality, and independence.

The Extraordinary Chambers in the Courts of Cambodia (ECCC) is unique because it is the first international criminal tribunal to allow victims of alleged crimes to act as civil parties at trial. This means that victims can have a role at the ECCC beyond being called as witnesses. After presenting the history of victim participation in national and international war crimes trials, this article examines how civil party participation shaped the trial proceedings at the ECCC, and how the civil parties viewed their interactions with the court. It concludes by reflecting on the positive and negative aspects of civil party participation in the Duch trial, and what implications such participation may have for future trials at the ECCC and other international criminal courts.

The ICRC's role and ability to help prevent the outbreak of armed conflict have always been a matter for concern and consideration. As early as 1863, in the debate which led to the foundation of the Red Cross and Red Crescent Movement, Gustave Moynier drew attention to the link between preventive action and assistance for victims of armed conflict. The notion of prevention has become rather broad, and the article spells out the different meanings given to it by scholars and practitioners. In addition, a wide range of practical methods and techniques have been worked out. The ICRC's role and possibilities will doubtless always be rather limited. However, since its Avenir project of 1997 to determine its future course of action, much thought has gone into identifying just what the ICRC can do to help prevent the outbreak of armed conflict. Moreover, with its humanitarian activities in armed conflict the ICRC may contribute to ending hostilities and reaching a settlement, and thereby prevent a resumption of conflict.

The article sets out states' obligations in relation to transfers of persons under international law, and revisits the key elements of the principled non-refoulement, including its application where persons are transferred from one state to another within the territory of a single state; the range of risks that give rise to application of the principle; important procedural elements; and the impact on the principle of so called diplomatic assurances.

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Calls have been made in recent years for the legal distinction between international and non-international armed conflicts to be removed. Also as of late, confusion regarding the applicable legal regime has been created by so-called transnational conflicts involving non-state entities. These situations do not fit naturally into the two traditional types of armed conflict recognized by IHL from 1949 onwards. The present article centres on how the legal divide that still exists between international and non-international armed conflict can be explained historically. It aims to further the discussion on whether such a distinction is still relevant, as well as on how certain situations could be classified in the existing typology of IHL.

The author critically analyses in this article the status of incitement in international criminal law. After a discussion of the relevant judgments by the Nuremberg Tribunal and related courts, including German de-Nazification courts, the travaux préparatoires of the Genocide Convention and the case-law of the International Criminal Tribunals, the international approach is criticized, particularly its practice of regarding only direct and public incitement to genocide as inchoate, whilst instigation generally is treated as not inchoate. The author recommends the adoption of an approach modelled on German and Swiss domestic law and argues that instigation per se should also be regarded as an inchoate crime.

This article provides a summary analysis of the topical question of how far the Security Council may derogate from occupation law. The answer is that the Council may not derogate from those provisions of IHL that are of a specifically humanitarian nature (humanitarian ordre public), that derogations from international law or IHL are in any case not to be presumed and that the Council has not derogated in any way from occupation law in the case of the occupation of Iraq since 2003.

The European Court of Human Rights' judgment in the Al-Jedda case dealt with the lawfulness of UK detention practice in Iraq under the European Convention on Human Rights. The Court's opinion could, however, be read as having broader implications for the ability of states parties to that treaty to conduct detention operations in situations of armed conflict. This article analyzes what the Court did – and did not say – about the application of international humanitarian law.

This article contends that the integration of humanitarian assistance in efforts to ‘win hearts and minds’ in counter-insurgencies has not been successful, and that the costs, both operational and legal, clearly outweigh any benefits. It demonstrates how such manipulation of humanitarian assistance runs counter to fundamental principles of international humanitarian law. In addition, a growing body of research suggests that the use of short-term aid and relief programmes as part of counter-insurgency has been ineffectual, and that, in places such as Afghanistan, it may even have undermined the overall military goal of defeating insurgents. With the United States and NATO military operations winding down in Afghanistan, it is time for the military and policy-makers reviewing ‘winning hearts and minds’ as a counter-insurgency strategy to draw the lessons and recognize the importance of a neutral and independent space for humanitarian aid.

This article uses the metaphor of a pyramid bounding the humanitarian space as a means of portraying what it is that constitutes humanitarian law and humanitarian action. Whereas humanity as the tip of the pyramid forms the aim and international humanitarian law the base, the sides are the principles of impartiality, neutrality and independence, which enclose the humanitarian space and make the humanitarian endeavour possible.

This article aims at positioning the agency of the displaced within the longue durée, as it is exposed in contexts of hospitality and asylum, by articulating its key modes: contingent, willed and compelled. Using the ancient world as its starting point, the article exposes the duplicity in conceiving of the current condition of displacement as transient or exceptional. As such, it argues for the urgent need of a shift in the perception of displaced persons from that of impotent victims to potent agents, and to engage with the new forms of exceptional politics which their circumstances engender.

The duty to rescue persons in distress at sea is a fundamental rule of international law. It has been incorporated in international treaties and forms the content of a norm of customary international law. It applies both during peacetime and during wartime, albeit with the necessary adjustments to take into account the different circumstances. States are also under the duty to provide search and rescue services. This article discusses the content and limitations of these provisions and assesses their potential to ensure the protection of human lives at sea. Furthermore, the article suggests that reference to the right to life, as protected in international human rights law, may be useful in further safeguarding human life and ensuring compliance by States with their duties.

Thousands of individuals have been detained abroad in the context of the “war on terror”, both during the armed conflicts in Afghanistan and in Iraq and as a result of transnational law-enforcement operations. This paper argues that, notwithstanding contrary positions expounded by some States, the protections of international humanitarian law and/or international human rights law remain applicable to these individuals, wherever detained, and examines recent decisions of domestic courts and international bodies which appear to reveal a reassertion of international standards.