This article examines the legal problems associated with human shields. The author begins by discussing the absolute nature of the prohibition on their use and goes on to consider the precautions to be observed by the party being attacked. A violation of the ban on use of human shields by the attacked party is not an act of perfidy and does not release the attacker from his obligations. Because human shields are civilians, they are not legitimate objects of attack, even where they are acting in a voluntary capacity, as they are not taking direct part in hostilities. Among the attacker's obligations to take precautions, the proportionality principle applies in the classic way, even in the case of voluntary human shields.

This article explores the relationship between international humanitarian and human rights law during non-international armed conflict. It seeks to answer two questions which are crucial in practice, but where the relationship between the two branches and the answers of humanitarian law alone are unclear. First, according to which branch of law may a member of an armed group be attacked and killed? Second, may a captured member of an armed force or group be detained similarly to a prisoner of war in international armed conflicts or as prescribed by human rights? Through application of the lex specialis principle, this article discusses possible answers to these questions.

This article discusses sanctions for and the prevention of mass violence. But rather than take a classic approach centred on statutory players such as soldiers, officers or political leaders, all of them acting within a legal chain of command, I focus on non-state perpetrators. My reflections are based on case studies of four former Serbian militiamen who took part in mass violence in the former Yugoslavia. I argue that it is of the utmost importance to consider the typical grass-roots relationship between these local players and their own community, so as to maximize the effect of sanctions and perhaps prevent further offences by potential future perpetrators.

This article summarizes a country study on Iraq conducted by the Humanitarian Agenda: 2015 project of the Feinstein International Center, Tufts University, between October 2006 and May 2007.* Based on a sample survey of perceptions of humanitarian action among Iraqis at the community level and among humanitarian agencies in the region, the study focuses on what Iraqis and aid workers believe to be true about the way in which the humanitarian apparatus has functioned or malfunctioned in Iraq, and why. Its findings confirm both the strength of the humanitarian ethos in Iraq and the operational value of principled humanitarianism, but call attention to significant gaps at ground level between ethos and practice.

Three main arguments may explain why few cases in international (and national) criminal law include charges for attacks against civilians or civilian objects. The law may be not sufficiently clear, there may be a lack of evidence or the selection of military targets may be based on mainly subjective considerations, which make it very hard to establish individual culpability. This article examines some legal and practical reasons for the difficulties the prosecutor faces when trying to charge individuals with such crimes. Although there are few examples, the ICTY has shown that it is generally possible to hold individuals responsible for such crimes.

For almost 60 years, the International Committee of the Red Cross (ICRC) has been doing its best to provide humanitarian assistance to those groups in Iraq that need it most. This article describes the humanitarian operations of the ICRC in Iraq from 1950 to the present day, in particular the support it has given to different minorities in the country and its humanitarian responses to the various armed conflicts. It shows that the legal framework that provides the basis for the ICRC's humanitarian activities also limits its ability to take action in situations beyond the scope of its mandate. In armed conflicts the ICRC faces the risk of being used by governments for their own ends. The challenge for the ICRC is to strike a balance between meeting its treaty-based obligations and exercising its right of humanitarian initiative, and to avoid selecting the recipients of its aid on the sole basis of opportunities made available by governments.

The current legal regime relative to occupation is no longer based solely on the contributions made by customary law and treaty-based law as set forth in the law of The Hague and the law of Geneva. It has undergone a thorough change with the progressive recognition of the applicability of human rights law to the situations which it governs, and their complementarity has been highlighted on several occasions. The question of the interrelation of international humanitarian law and human rights is not resolved merely by analysing their respective areas of application. The author examines the issue at the level of their individual rules. He considers whether the rules of international humanitarian law are confirmed, complemented, relativized or even contradicted by those deriving from human rights. The analysis focuses more particularly on the interrelation of the law of occupation and economic, social and cultural rights by concentrating on the promotion of adequate standards of living (right to food, right to health) and respect for property.

This paper raises two main questions. The first concerns the current idea that punishment – conceived as the loss of liberty – has an effect in preventing unlawful behaviour. It can in fact be shown that, in general, sanctions have a poor individual preventive effect. As to general prevention, punishment may be expected to have a deterrent effect when the unlawful behaviour is the result of a rational decision, that is, a decision based on a cost–benefit analysis. However, a wide variety of factors, from group support to situational and systemic factors, may very well counteract the threatening effect of the sanction. The second question concerns the feasibility of non-stigmatizing ways to cope with crime. The few examples borrowed from legal anthropology seem to indicate that viable alternatives exist. But the transfer of a non-Western, indigenous problem-solving process to culturally different contexts is problematic and should be carried out with extreme caution.

The article describes the context of the ICRC's operations in Iraq, where the Iran–Iraq War in the 1980s, the Gulf War in 1990–1 and the effects of sanctions preceded the 2003 conflict and the spread of sectarian violence. The many serious attacks, including the bombing of the ICRC delegation in Baghdad in 2003 and continuing threats to the ICRC delegates, led to a low-visibility presence and required a new modus operandi in which a real presence on the ground was backed up by remote-control mechanisms for assistance activities in the most insecure areas. Projects to cover essential needs by ensuring water supplies and sewage disposal and supporting health facilities exemplify this new ICRC operational framework. Whereas remote control and support operations enabled programmes of increasing scope and size to be implemented, they could not replace a direct physical presence on the ground, and acceptance-building had to be reinforced through networking and communicational aspects. The authors argue, however, that there is still room for independent, neutral and impartial humanitarian action in Iraq – despite inherent security risks.

This article outlines the debate on the general relationship between the law of armed conflicts and human rights and examines particularly the applicability of human rights during military occupation. Complementarity and compatibility should be evaluated case by case, on the basis of the rules making up each of these regimes and any exceptions that these rules contain. The different interests and values at stake – the interests of the occupying forces and those of the civilian population, the protection of human rights and the derogations necessary to maintain order – reveal many grey areas that still exist in the interaction between human rights law and the law of military occupation.

The ‘equal application’ principle is that in international armed conflicts, the laws of war apply equally to all who are entitled to participate directly in hostilities, irrespective of the justice of their causes. The principle, which depends on maintaining separation between jus ad bellum and jus in bello, faces serious challenges in contemporary armed conflicts and discourses. Some variations of the principle may be inevitable. However, it has a firm basis in treaties and in historical experience. It is the strongest practical basis that exists, or is likely to exist, for maintaining certain elements of moderation in war. The rival proposition – that the rights and obligations of combatants under the laws of war should apply in a fundamentally unequal manner, depending on which side is deemed to be the more justified – is unsound in conception, impossible to implement effectively and dangerous in its effects.

Under international humanitarian law commanders have been entrusted with the task of ensuring respect for that body of law by their subordinates. This responsibility includes not only the training in IHL of those under their command, but also the taking of necessary measures to prevent or punish subordinates committing violations of IHL. Failure by a commander to do so will give rise to criminal liability, often termed superior responsibility. The following article reviews some of the issues arising from the application and development of this form of responsibility, from both a practical and a legal perspective.

The impact of disciplinary military sanctions on respect for international humanitarian law depends on the extent to which the principles governing that law have been integrated into the disciplinary rules of the armed forces and the range of responsibility of the commanding officer giving an order which breaches international humanitarian law or which does not ensure respect for it. Whereas the armed forces rely on a strong principle of obedience, respect for international humanitarian law depends essentially on the superior officer whose responsibility is subject to sanctions imposed by international criminal judges within a judicial system which aims to make sanctions an effective means of ensuring respect for international humanitarian law.

The article provides a brief overview of the scale and characteristics of Iraq's refugee population as well as their protection and assistance needs in asylum countries. It also reviews their relative impact on neighbouring states and the sustainability of recent returns.

The theoretical separation of jus ad bellum and jus in bello provides important protection during armed conflict. It guarantees that jus in bello will apply regardless of the cause of a conflict. However, this distinction has been challenged by the view that in some cases a situation of self-defence may be so extreme, and the threat to the survival of the state so great, that violations of jus in bello may be warranted. The situation is compounded by the confusion of the principles of necessity and proportionality under jus ad bellum and jus in bello in both academic writing and the jurisprudence of international courts. The dangers of blurring the distinction will be elucidated by examining how jus ad bellum considerations have affected the application of jus in bello in armed conflicts between states and non-state actors.

The article outlines the legal framework that governs transfers of individuals, and in particular the international law principle of non-refoulement and other obstacles to transfers. The author addresses some of the new legal and practical challenges arising in detention and transfers in the context of multinational operations abroad and analyses the contemporary practice of transfer agreements.

While it is widely accepted that punishing the perpetrators of violations of international humanitarian law is an important instrument in improving compliance with the law, little research has been done into the obligations on armed groups to impose sanctions and their possibilities for doing so. This article discusses characteristics of armed groups that influence their willingness and ability to comply with international humanitarian law and to punish those of their members who commit violations. It takes a holistic approach to these sanctions, and analyses the different methods of punishing members of armed groups, including disciplinary sanctions, penal sanctions imposed by the state and penal sanctions imposed by the group itself.

The present document resulted from an expert process initiated and conducted by the ICRC from 2003 to 2008. Dr. Nils Melzer, Legal Adviser at the ICRC, who has been responsible for the expert process since 2004, is the author of the Interpretive Guidance and most background documents and expert meeting reports produced during the process. The ICRC would like to express its gratitude to the experts, all of whom participated in the process in their personal capacity.

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.

: : : : : : :