This article presents a descriptive analysis of the precautions that are required of all belligerents in order to ensure the protection of civilian populations and objects against the effects of hostilities. The author argues that both the attacker and the defender must take precautions to avoid, or at least minimize, collateral casualties and damage. The rules imposing such precautionary measures represent clear standards of conduct. This is true even though they are worded in flexible terms to take into account the reality that mistakes or misjudgements are inevitable, and that the balance between military and humanitarian interests is not always easy to reach.

Before the International Criminal Court (ICC) came into being, world public attention was focused on issues such as the significance of the Court's establishment, the importance of implementing international criminal justice and the time when the Rome Statute could enter into force. Once the Court was established, attention naturally turned to practical issues, such as whether it would be able to operate normally and perform its historic mission. The question of whether the ICC can operate effectively and perform its mission largely depends on the scope and degree of co-operation provided to it by states. This co-operation concerns not only states party to the ICC but also non-party states. This article offers to explore the obligation of non-party states to co-operate under international law, the prospects of their co-operation and the legal consequences of non-co-operation. The author suggests that beyond the general principle of the law of treaties according to which treaties are binding only on states parties, when viewed in the light of other general principles of international law, co-operation with the ICC is no longer voluntary in nature, but is instead obligatory in the sense of customary international law. Therefore, while a state may not have acceded to the ICC, it may still be subject to an obligation to co-operate with it in certain cases.

States are increasingly hiring private military companies to act in zones where armed conflicts are occurring. The predominant feeling in the international community is that it would be best to regulate such companies. Cognizant of much confusion as to the status of the employees of private military companies under international humanitarian law, this article explains the laws on mercenaries, combatants and civilians and explores how private military companies' employees may fall into any of those categories. It demonstrates that the concept of mercenarism is unhelpful for regulating these companies and that it is unlikely that many of the employees of these companies can be considered to have combatant status. The article considers possible consequences of private military companies' employees having the status of civilians under international humanitarian law and their potential impact on regulating these companies effectively.

Numerous truth commissions of different types are being created around the world. The purpose of this schematic overview is to study the variety and to sketch out the differences and similarities between the different truth commissions established since the Truth and Reconciliation Commission of South Africa launched in 1995.

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.

Based on her experience as a member of the South African and the Sierra Leonean truth and reconciliation commissions, the author formulates guiding principles and looks at the circumstances in which a truth and reconciliation commission constitutes an appropriate instrument to deal with transitional justice issues. The author also identifies possible contributions that truth and reconciliation commissions can make during a period of transition.

Corporate actors are taking on an increasingly significant role in the prosecution of modern warfare. Traditionally, an analysis of the law applicable to corporate actors in armed conflict commences with inquiry into the law as it applies to mercenaries. As such, the rise of the private military industry invites a reconsideration of the conventional approach to mercenaries under international law. This article critically surveys the conventional law as it applies to mercenaries, and considers the extent to which corporate actors might meet the legal definitions of a “mercenary”. It demonstrates that even mercenaries receive protection under international humanitarian law.

Whilst the African continent has been beset with many of the modern- day conflicts, and with them violations of international humanitarian law, through the work of the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the International Criminal Court, African states have demonstrated their intent to hold accountable the perpetrators of the gravest international crimes. By the end of 2005, the International Criminal Tribunal for Rwanda celebrated its eleventh year, the Special Court for Sierra Leone will have completed its fourth year and the International Criminal Court will be more than three and a half years old. As the present review of their activities shows, the delivery of justice through international jurisdictions is a complex and often time-consuming process.

Private security and military companies have become a ubiquitous part of modern armed conflict and post-conflict reconstruction. Their diverse clients include governments in the developed and developing world alike, non-state belligerents, international corporations, non-governmental organizations, the United Nations, and private individuals. The implications of this proliferation of private security and military companies for international humanitarian law and human rights are only beginning to be appreciated, as potential violations and misconduct by their employees have come to light in Iraq and Afghanistan. The author critically examines the theoretical risks posed by private military and security company activity with respect to violations of international humanitarian law and human rights, together with the incentives that these companies have to comply with those norms. Empirical evidence is also presented to expand on this theoretical framework. Taking a multidisciplinary approach, the author draws on law, international relations theory, criminology, economics, corporate strategy and political economy, as well as psychology and sociology, to analyse the competing “risk-factors” and “compliance levers” that interact at each level of private military and security company activity to enhance or reduce the likelihood of a violation occurring. These findings are then applied by the author to assess emergent measures to deal with private security and military companies outside the legal sphere, including a programme of the International Committee of the Red Cross and the advent of the International Peace Operations Association.

Although much has been said and written about the creation of the international criminal tribunals and their contribution to the development of international humanitarian law, there have been very few studies of the international prosecutor per se. In this article the author briefly surveys recent developments in the international criminal justice institutions, focusing particularly on the limits recently imposed on the discretionary powers of international prosecutors.

During the second half of the twentieth century the international community, facing the terrorist phenomenon, reacted with the adoption of a series of treaties concerning specific types of terrorist acts, and the obligations of states with regard to them. Alternatively terrorism-oriented legislation, which initially covered only acts affecting civilians, has gradually expanded to cover some acts of terrorism against military personnel and installations. This contribution attempts to assess the repercussions of this evolution on the status and the protection of armed forces engaged in the so-called “war on terrorism” by examining the existing dynamic between these regulations and international humanitarian law.

Compliance with or violations of international humanitarian law during an armed conflict undoubtedly influence the conduct of the judiciary, the situations of the victims and the correlation of forces in the post-conflict society. This article seeks to determine the influence of international humanitarian law on the transitional justice process. The author examines the specific experience of certain Latin American states that have been deeply affected by serious violations of human rights and international humanitarian law.

Any body or institution dealing with the missing persons issue will interact in one way or another with transitional justice proceedings, if only to examine the possibility of sharing relevant information gathered. The question becomes even more acute when international tribunals intervene in the national context where transitional justice mechanisms are operating. The authors look at the ways in which transitional justice mechanisms may support the right of families to know the fate of their relatives, and how work to resolve the missing persons issue can be reconciled with an effective fight against impunity.

This article describes the relevant interpretation of the right to life by human rights treaty bodies and analyses how this might influence the law relating to the use of force in armed conflicts and occupations where international humanitarian law is unclear. The concurrent applicability of international humanitarian law and human rights law to hostilities in armed conflict does not mean that the right to life must, in all situations, be interpreted in accordance with the provisions of international humanitarian law. The author submits that the human rights law relating to the right to life is suitable to supplement the rules of international humanitarian law relating to the use of force for non-international conflicts and occupation, as well as the law relating to civilians taking a “direct part in hostilities”. Finally, by making reference to the traditional prohibition of assassination, the author concludes that the application of human rights law in these situations would not undermine the spirit of international humanitarian law.

Key issues raised by the use and operation of private military and security companies, particularly in conflict areas, are their accountability and how to control them. National regulation, however, is still rare. States have a role to play first as contractors. Considered selection, contracting and oversight procedures and standards may help promote respect for human rights and international humanitarian law by companies and their staff. Secondly, territorial and exporting states may consider adopting regulations to increase control and promote accountability. In view of this still largely unregulated phenomenon, this contribution considers elements of contracting and regulatory options.

This article analyses problems with which the Republic of Croatia, as a country in transition, has to contend during war crimes proceedings. A major characteristic of the recent wars waged on the territory of the former Yugoslavia is that war crimes were committed, though on a different scale, by all parties involved, irrespective of the political and other motives that prompted them to engage in armed conflict. Political unwillingness is the principal reason why national courts, including those in the Republic of Croatia, did not prosecute war crimes in accordance with internationally acceptable standards. The international community responded by setting up the International Criminal Tribunal for the former Yugoslavia (ICTY), the main objectives of which are to establish justice, render justice to victims and determine the historical truth. Implicitly, despite political and other opposition to its work, the ICTY is helping to define legal and ethical standards appropriate for a democratic society in the countries established on the territory of the former Yugoslavia. This is particularly important for the reason that all these countries aspire to membership of the European Union. The work of the ICTY, as well as proceedings before domestic courts, is therefore an important legal, political and moral catalyst on their way towards accession to the European Union. This is fully confirmed by the example of the Republic of Croatia.

The fact that international humanitarian law violations are in the vast majority of cases prosecuted in criminal courts does not mean that a civil liability for these violations does not exist. This article seeks to explore the concept of civil liability of corporations involved in violations of international humanitarian law by providing an overview of the different legal issues raised by this concept and its implementation in both common law and continental law systems.

This article looks at the role of humanitarian organizations in the context of judicial procedures in a global environment which was modified by the establishment of international criminal courts. It shows the struggles and tensions that humanitarian organizations face when, on the one hand, they bring assistance and protection to victims of armed conflicts and other situations of violence and, on the other hand, they contribute to the fight against impunity in cases of grave violations of international humanitarian law. The author suggests some elements of an operational framework which should contribute to the achievement of these difficult-to-reconcile objectives.

This report presents the instruments and strategies used by non-state actors to respect international humanitarian law during intra-state conflicts in Africa and highlights the recognition by these non-state actors of the role of humanitarian organizations. It examines the impact of such recognition on the development of international humanitarian law and the activities of humanitarian organizations, and shows the problems encountered by non-state actors with respect to their commitments. It concludes with some suggestions as to a way forward.

Starting with the usual functions of truth and reconciliation commissions, the article outlines the possibilities for and limits of cooperation by the ICRC with the varying types of commissions. The question as to the degree of such cooperation has mostly been resolved on similar lines to the privilege of non-disclosure in international criminal trials. Within the parameters of its principles of neutrality and impartiality and the operative rule of confidentiality established to enable access to victims of armed conflicts and internal violence, the ICRC has, however, cooperated with such commissions. The author explains some criteria determining the appropriate degree of cooperation and shows some forms it can take. He finally discusses the ICRC's policy vis-à-vis the amnesty provisions of truth and reconciliation commissions, which often preclude the prosecution of persons involved in offences committed during periods of violence.