This article analyses the outcome of the ‘Copenhagen Process on the Handling of Detainees in International Military Operations’: a five-year multi-stakeholder effort to develop principles and good practices on detention in international military operations. The Process concluded in 2012 when 18 States ‘welcomed’ a set of non-binding ‘Principles and Guidelines.’ The Principles and Guidelines address uncertainties surrounding the legal basis for the detention, treatment, and transfer of detainees during international military operations, drawing on both human rights and international humanitarian law. This article comments on the Principles and Guidelines, shedding some light on the context in which they were developed and adopted.

Deprivation of liberty in non-international armed conflict (NIAC) has suffered no shortage of attention over the last decade with issues surrounding the legal basis and procedural requirements for detention having received the most focused attention. In the course of these debates, international lawyers have looked to rules found in international humanitarian law (IHL) applicable in international armed conflict (IAC) for guidance, and many have argued that as a matter of either law or policy, the procedural aspects of detention in NIAC should be approached in a similar manner. As these discussions have evolved, their focus on grounds and procedure has left another core aspect of IHL relatively unnoticed, along with its potential role in the evolution of NIAC detention law and policy: in addition to providing a procedural framework for detention in armed conflict, IHL also provides material framework for detention that addresses the physical conditions in which detainees are to be held and the way detention and detention facilities are managed. It is often overlooked that in IAC, IHL's accounting for the unique situation of armed conflict does not stop at the right to detain or the grounds and procedures for doing so, but also informs extensive rules on the material aspects of detention. The result is a series of essential and unique protections—often going beyond those found in human rights law—designed to address specific vulnerabilities caused by armed conflict. This article calls attention to this aspect of IHL and asks whether the logic and reasoning that informs the material framework for detention established by the Geneva Conventions should have a role to play in the evolution of law and policy governing the material framework for detention in NIAC.

This chapter begins with the observation that non-international armed conflicts pose serious challenges to the efforts to regulate war in both international law and recent ethical discourse, and argues that neither has responded well to these challenges. Various problems in both are identified. The second part of the chapter examines the historical conception of just war accepted as consensual in the West from the high Middle Ages till early in the modern period, arguing that it provides a helpful frame for thinking ethically about non-international armed conflicts. The third section of the chapter carries this reasoning forward, applying it to non-international armed conflicts generally and to the problem of detention in such conflicts specifically.

This article tackles the tricky legal issues associated with autonomy and automation in attack. Having clarified the meanings of these notions, the implications of the rules of weapons law for such technologies are assessed. More challenging issues seem, however, to be raised by the law of targeting, and in particular by the evaluative assessments that are required of attackers, for example in relation to the precautions in attack prescribed by Additional Protocol I. How these rules can sensibly be applied when machines are undertaking such decision-making is therefore addressed. Human Rights Watch has called for a comprehensive ban on autonomous attack technologies and the appropriateness of such a proposal at the present stage of technological development is therefore assessed. The article then seeks to draw conclusions.

The human suffering caused by the political ideology of apartheid in South Africa during the Apartheid era (1948–1994) prompted worldwide condemnation and a variety of diplomatic and legal responses. Amongst these responses was the attempt to have apartheid recognised both as a crime against humanity in the 1973 Apartheid Convention as well as a war crime in Article 85(4) (c) of Additional Protocol I. This article examin'es the origins, nature and current status of the practices of apartheid as a war crime and its possible application to the Israeli-Palestinian conflict.

The aim of this article is to reflect upon accountability under international law through the framework of a specific example. The Turkel Commission is a public commission of inquiry appointed by the Government of Israel. It issued its second and final report, which addresses Israel's mechanisms for investigating violations of international law according to the laws of war, in February 2013. The Report primarily focuses on International Humanitarian Law (IHL) but also attends to International Human Rights Law (IHRL). The duty to investigate under international law is an evolving process because treaty law lacks detail, particularly regarding the manner of conducting an investigation. Under IHRL that duty has been enriched by the jurisprudence of regional human rights courts and soft law. Under IHL duty (which is even sparser in detail) it has been aided by state practice and the jurisprudence of international tribunals. The Turkel Report is the first major study on the duty to investigate and it informs much of the analysis of this article. The article provides a descriptive review of the Report and a critical discussion of the way this current national development offers a meaningful contribution to the development of the obligation imposed by international law to investigate alleged violations.

2013 was marked with several noteworthy events with particular relevance to international humanitarian law, such as the continuation of the conflict in Syria and the incidents related to the use of chemical weapons in that conflict; several key decisions in international, hybrid and national courts related to the adjudication of war crimes, crimes against humanity and genocide; the passage of an Arms Trade Treaty text; the 150th anniversary of the International Committee of the Red Cross; and the release of the second part of the Turkel Commission Report. This chapter addresses a number of these issues among other events of note.

On 10 and 11 January 2013, the T.M.C. Asser Institute and the International Centre for Counter-Terrorism—The Hague (ICCT), in cooperation with the International Humanitarian and Criminal Law Platform, the Konrad Adenauer Stiftung, the Municipality of The Hague and the Netherlands Ministry of Foreign Affairs organised a two-day symposium entitled The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism. During the symposium, twenty-seven top panellists and moderators from academia, civil society, governments, the military and multilateral organisations discussed the contours of various approaches states take against non-state actors with the goal of countering terrorism. Specifically, the symposium addressed issues related to uses of force and how these may affect and define the geographic and temporal scope and limitations of the laws of armed conflict in relation to counter-terrorism. Besides this main theme, which operates within the armed conflict paradigm, the symposium also discussed and assessed the law-enforcement paradigm. Specifically, this paper elaborates on a number of key questions raised during the conference; these relate to the temporal and geographical limitations of armed conflict, the interplay between international humanitarian law and international human rights law, as well as the use of drones, the law enforcement approach to counter-terrorism and the possible need for a new framework for countering terrorism.

This essay provides a commentary on the ongoing discussion of the relationship between the two legal regimes and attendant paradigms of hostilities and law enforcement in armed conflict. The discussion has, to an extent, taken the form of a disconnect between the IHL and IHRL communities. In order to get past this, a plea is made here to apply basic well established tools of legal methodology, to apply both regimes within their respective scope of application and to utilise common sense in determining which regime is the most relevant to a particular situation. This is in the interest of legal coherence and maintaining respect for the law, as well as in the interest of the persons the law is meant to protect.

The article by EU Counter-Terrorism Coordinator Gilles de Kerchove and his adviser Christiane Höhn provides an inside view into the EU's practices and views related to counter-terrorism and international law. It explains the EU's criminal justice approach to the fight against terrorism and provides arguments for the effectiveness of this response in practice. The authors set out the tools for regional law enforcement and judicial cooperation the EU has adopted since 9/11, based on the principle of mutual recognition, as well as EU-US cooperation in this area. It also looks at the role of the military in the fight against terrorism. In a second part, the article deals with questions related to the international legal framework for the fight against terrorism, such as the existence of not of an armed conflict in the legal sense against Al Qaeda. It also explains relevant initiatives in the EU-US context, including the EU-US legal advisers' dialogue, the EU framework to support the closure of Guantánamo and the EU input to the implementing provisions of the National Defense Authorization Act.

An examination of the growing literature on the topic of the geography of armed conflict suggests that the differences of opinion, between and among academics, policymakers and military lawyers, for example, are nearly intractable. Statements about the propriety of a certain target under the law of armed conflict are often met by pronouncements regarding the role of jus ad bellum in cabining the use of force in the territory of another state or the restrictive parameters of the international human rights/law enforcement regime for addressing individuals who pose a threat or danger to others. Indeed, one might easily conclude that the participants in these debates are simply operating in entirely separate analytical paradigms, leading to interesting and challenging intellectual discussions but not to productive conversations that advance the analysis and move beyond the debate to effective potential resolution of a complicated and multi-layered issue. However, unlike pornography or terrorism, where notwithstanding a myriad of different definitions, “you know it when you see it”, little agreement exists even on whether there is a specific, definable geography of armed conflict at all. To help move beyond this impasse, this article explores the presumptions underlying the ongoing debates regarding the geography of armed conflict, in an effort to untangle the debates and provide new opportunities and venues for discussion—and thus to help advance the development of the law of armed conflict and other relevant bodies of law. These presumptions appear in particular in four dichotomies that inherently help drive the debates but are brushed aside or not taken into consideration: law versus policy; authority versus obligation; territory versus threat; and submission of the collective enemy versus elimination of an individual threat. For each or any of these dichotomies, the lens through which one views the contrasting positions will then have a significant—if not determinative—effect on considerations and conclusions regarding questions of geography and the battlefield. As a result, recognizing these dichotomies and understanding how they impact the current discourse is critical to any effective conversation, whether in the academic or policy arenas.

Al-Qaeda's dispersal and the rise of regional terrorist groups such as Al-Shabaab in Somalia have raised the stakes for defining an “organized armed group” (OAG). If an entity fails the OAG test, a state may use only traditional law enforcement methods in responding to the entity's violence. Both case law and social science literature support a broadly pragmatic reading of the OAG definition. While the International Criminal Tribunal for the former Yugoslavia (ICTY) has cited factors such as existence of a headquarters and imposition of discipline, ICTY decisions have found organization when evidence was at best equivocal. Moreover, terrorist organizations reveal surprisingly robust indicia of organization. Illustrating this organizational turn, a transnational network like Al-Qaeda operates in a synergistic fashion with regional groups. Moreover, recent news reports have suggested that current Al-Qaeda leader Dr. Ayman al-Zawahiri has attempted to assert operational control over the specific targeting decisions of Al-Qaeda affiliates, although that effort has not been uniformly successful. Furthermore, while Al-Qaeda does not micromanage most individual operations, it exercises strategic influence, e.g., through a focus on targeting Western interests. When such strategic influence can be shown, the definition of OAG is sufficiently flexible to permit targeting across borders. In addition, the doctrine of co-belligerency, borrowed from neutrality law, provides a basis for targeting that is not confined by state boundaries. Even when these indicia are absent, individuals within non-Al-Qaeda groups may be targetable if they engage in coordinated activity with Al-Qaeda.