The gravity of the crime committed has been considered ‘a factor of fundamental importance’ when deciding the early release of a person convicted by the ad hoc tribunals. Hence, most of the decisions rendered by the International Criminal Tribunal for the former Yugoslavia, for Rwanda and the International Residual Mechanism for Criminal Tribunals include this factor and determine whether it weighs in favour of or against early release. Conversely, when deciding the reduction of the sentence in the case of Thomas Lubanga, the International Criminal Court Panel stated in 2015 that ‘unlike at other international criminal tribunals, the gravity of the crime committed is not a factor that in itself weighs for or against reduction of sentence’. In fact, none of the decisions delivered by the International Criminal Court to date mention gravity. This drastic change reflects the differences in the corresponding statutes and rules of procedure and evidence and ultimately seeks to avoid a double count since the gravity of the crime committed is arguably the most important factor in the determination of the sentence. This divergence is examined in greater detail in this article, drawing on comparative, empirical research to establish the role played by gravity in early release decisions. Ultimately, it is argued that although the explanatory power generally attributed to gravity is often overrated, it is essential to a thorough early release assessment, whether included as a prerequisite per se or indirectly integrated into a wider prognosis of the risk of recidivism.

Malicious cyber activities against space activities (MCASAs) add to the complexities of the legal attribution of malicious cyber activities violating international law. The ‘space’ implies the possibility of applying international space law considering the lex specialis derogat legi generali (more specific rules will prevail over more general rules) principle. However, neither the attribution rules of international space law nor of general international law could completely tackle this dilemma. This study categorizes MCASAs into three categories based on the role of the involved space activities and analyses the crux of legal attribution in each scenario. It proposes different coping approaches, including a four-pronged way, introducing a peculiarity test, and specifying substantive international obligations of the states responsible for space activities.

Res judicata is a core belief of international law; the ICJ’s judgments are seen as final and without appeal, to doubt that is apparently equal to calling the entire international legal order into question. But the doctrine is not as absolute as the orthodoxy makes it out to be, neither as a matter of positive international law nor as a statement of legal theory. Even final judgements are not always final and appeals procedures and judicial review are not special in that they engage res judicata whereas regular legal change does not; rather, both do from a legal-theoretical vantage-point. This article makes the point by looking at ICJ interpretation judgments under Article 60; it argues that, far from leaving the original judgment’s res judicata intact, interpretation judgments actually impinge or even disrupt it. The article discusses ICJ interpretation judgments (the 2013 judgment in Preah Vihear serving as convenient example), introduces Adolf Julius Merkl’s Error Calculus theory as the theoretical framework best suited to analysing the nomomechanics and critiques the Preah Vihear interpretation judgment as change disguised as a hermeneutic exercise. It then turns the critical enterprise on its head to look at the Error Calculus theory itself to lay the groundwork for an even more audacious argument that the Error Calculus does not depend on errors in the narrow sense of the word: it is neither an ex post ratification of an imperfect norm nor a confirmation of invalidity, but the derogation of a perfectly valid norm.

The armed conflict in Gaza raises a series of questions under international law. The most significant questions concern the Israel’s use of force under jus ad bellum, the military operations conducted by the belligerents in relation to the law of armed conflict, and the proceedings brought before certain international courts, such as the International Criminal Court. This article examines each of these three issues in two stages. Firstly, it shows that the answers to these questions give rise to uncertain solutions insofar as they depend on the point of view adopted in relation to fundamental controversies concerning Palestine, such as the latter’s statehood. Secondly, it sets out the solutions that emerge independently of these controversies, whether these solutions express certainties or likelihoods.

Digital open-source evidence has become ubiquitous in the context of modern conflicts, leading to an evolution in investigative practices within the context of mass atrocity crimes and international criminal law. Despite its extensive promulgation, international criminal tribunals have had few opportunities to address the admissibility of user-generated open-source evidence. Through semi-structured interviews with experts and analyses of primary and secondary sources, this article examines the current standards and practices governing the use of user-generated open-source evidence. Current practices illuminate a number of gaps in the realm of digital open-source evidence in international criminal law. This article posits the establishment of a standing international, investigative mechanism as a solution to a need for increased standardization and co-ordination within the realm of user-generated open-source evidence. By standardizing the collection and use of such evidence, investigative bodies will be prepared to more effectively serve the international justice community.

The principle of proportionality under international humanitarian law prohibits an attack if the expected harm to civilian persons and objects is excessive in relation to the anticipated concrete and direct military advantage. In this article we argue that, when applying the principle of proportionality, the incidental harm to a child must be given a higher value as compared to incidental harm to an adult. This reflects the broader framework of international humanitarian law, which creates stratifications amongst different groups of civilians and provides special protection for children in times of war. This aligns with the practice of many militaries, which tends to implicitly assign a heightened worth to the lives of children due to moral and political considerations. Such reasons stem from the perceived vulnerability of children as well as their moral innocence reflecting harmlessness and blamelessness. Indeed, harm to children’s lives tends to generate a greater backlash among the community to which they belong and, as a result, a military disadvantage. We argue that the greater weight assigned to the lives of children in proportionality assessments is not simply a matter of morality or strategic calculations, but in fact a requirement from a more wholistic interpretation of international humanitarian law.

In 2021, the Ntaganda case introduced a new approach to evaluating the monetary liability for reparations in the International Criminal Court (ICC) by explicitly recognizing joint and several liability and centring the determination of the quantum of reparations on the harm suffered by the victims and the costs to repair it. As suggested by the Ntaganda Trial Chamber, these two innovations promote a stronger separation between the reparation process and the criminal trial, in order to consolidate a compensatory and victim-centred approach to reparations awarded by the ICC. This article critically appraises the innovations in Ntaganda through the lens of Article 21 of the Rome Statute, focussing on three elements: (i) the evolving jurisprudence on monetary liability in the ICC prior to the Ntaganda case; (ii) the case law on reparations of hybrid criminal courts; and (iii) the notion of general principles of law derived from the national legal systems of the world, in the sense of Article 21(1)(c) of the Statute. The article argues that, despite its victim friendly veneer, the approach introduced in Ntaganda should not be taken for granted. Besides the fact that multiple important aspects and ramifications of this approach remain unaddressed, those two innovations may have serious implications for the victims, the convicted persons, and the ICC’s reparations process as a whole.

The discrimination faced every day by LGBTQIA+ individuals does not disappear during armed conflict. On the contrary, such persons have been, and continue to be, targeted for particularly heinous human rights violations due to their sexual orientation and/or gender identity. And while international human rights law has, in the last two decades, made significant leaps in prohibiting discrimination on these grounds, international criminal law lags behind. The Rome Statute of the International Criminal Court only criminalizes persecution, an extreme form of discrimination, on grounds of gender and other grounds universally recognized in international law rather than on grounds of sexual orientation or gender identity. In the absence of clear textual criminalization of queer persecution, this article argues international law can be queerly reinterpreted to fit sexual orientation and gender identity into the confines of ‘gender’. However, while acknowledging the normative and expressive gains that could come from using international criminal law to pursue queer persecution, this article also notes the costs, including the flattening of queer discrimination into the narrow rubric of gender and suppressing its more radical principles. Therefore, while concluding international criminal law can be queerly reinterpreted, this article expresses doubts as to whether, in fact, it should.

This article addresses the question of whether the violence between Türkiye and the Kurdistan Worker’s Party (PKK) constitutes an armed conflict within the meaning of international humanitarian law. The article first explains the different non-international armed conflict descriptions provided by (i) the ICTY’s famous Tadić decision, (ii) Additional Protocol II, and (iii) the Rome Statute of the ICC and discusses the different applicability thresholds set by these sources. After noting that the terrorist nature of the acts of violence in a situation will not prevent them from being characterized as an armed conflict and that the application of the international humanitarian law norms would not in fact affect the legal status of the PKK, this article examines whether Türkiye’s struggle against the PKK could be classified as an armed conflict subject to international humanitarian law norms.