Geneva Academy of International Humanitarian Law and Human rights

This article discusses whether the International Criminal Court (ICC) has lawfully issued and circulated an arrest warrant against the incumbent head of state of Sudan, Omar al Bashir, and whether its request to the states parties to the Rome Statute to arrest and surrender him is in conformity with the provisions of the Statute. In this article, the argument is made that the rules of customary international law on personal immunities of incumbent heads of state do not apply in the case of the exercise of criminal jurisdiction by an international criminal court; therefore they do not bar the exercise of the jurisdiction of the ICC with respect to an incumbent head of state, even if this individual comes from a state not party to the Rome Statute, like Sudan. However, it is one thing to assert that an international criminal court can ‘lawfully’ issue and circulate an arrest warrant against individuals entitled to personal immunity before national courts, and quite another to say that states can ‘lawfully’ disregard the personal immunity of these same individuals, and surrender them to the requesting international court. This article endeavours to demonstrate that while the ICC arrest warrant is a lawful coercive act against an incumbent head of state, the ICC request to states parties to surrender President Al Bashir is contrary to Article 98(1) of the Rome Statute and it is an act ultra vires. States parties are therefore not bound to comply with this request.

An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.

Abstract Data-driven artificial intelligence (AI) technologies are progressively transforming the humanitarian field, but these technologies bring about significant risks for the protection of vulnerable individuals and populations in situations of conflict and crisis. This article investigates the opportunities and risks of using AI in humanitarian action. It examines whether and under what circumstances AI can be safely deployed to support the work of humanitarian actors in the field. The article argues that AI has the potential to support humanitarian actors as they implement a paradigm shift from reactive to anticipatory approaches to humanitarian action. However, it recommends that the existing risks, including those relating to algorithmic bias and data privacy concerns, must be addressed as a priority if AI is to be put at the service of humanitarian action and not to be deployed at the expense of humanitarianism. In doing so, the article contributes to the current debates on whether it is possible to harness the potential of AI for responsible use in humanitarian action.

This contribution reminds us that as individuals we play a role in the formation and understanding of international law. After recalling the key steps in the acknowledgement of international rights and obligations for individuals the article goes on to ask if the time has come to acknowledge that individuals can have obligations under international law that go beyond international crimes. In other words might there be international civil law obligations for the individual?

Food systems must become more sustainable and equitable, a transformation which requires the transdisciplinary co-production of knowledge. We present a framework of food sustainability that was co-created by academic and non-academic actors and comprises five dimensions: food security, right to food, environmental performance, poverty and inequality, and social-ecological resilience. For each dimension, an interdisciplinary research team-together with actors from different food systems-defined key indicators and empirically applied them to six case studies in Kenya and Bolivia. Food sustainability scores were analysed for the food systems as a whole, for the five dimensions, and for food system activities. We then identified the indicators with the greatest influence on sustainability scores. While all food systems displayed strengths and weaknesses, local and agroecological food systems scored comparatively highly across all dimensions. Agro-industrial food systems scored lowest in environmental performance and food security, while their resilience scores were medium to high. The lowest-scoring dimensions were right to food, poverty and inequality, with particularly low scores obtained for the indicators women's access to land and credit, agrobiodiversity, local food traditions, social protection, and remedies for violations of the right to food. This qualifies them as key levers for policy interventions towards food sustainability.

Abstract An effective legal regime governing the actions of armed non-state actors in Afghanistan should encompass not only international humanitarian law but also international human rights law. While the applicability of Common Article 3 of the 1949 Geneva Conventions to the conflict is not controversial, how and to what extent Additional Protocol II applies is more difficult to assess, in particular in relation to the various armed actors operating in the country. The applicability of international human rights law to armed non-state actors – considered by the authors as important, particularly in Afghanistan – remains highly controversial. Nevertheless, its applicability to such actors exercising control over a population is slowly becoming more accepted. In addition, violations of peremptory norms of international law can also directly engage the legal responsibility of such groups.

The restriction of personal liberty is a critical feature in all conflicts, whether they are of an international character or not. With the increased prevalence of non-international armed conflict and the drastic proliferation of non-state armed groups, it is critical to explore whether such groups can legally detain or intern persons during conflict. This article proposes that there exists a power and a legal basis for armed groups to intern persons for imperative security reasons while engaged in armed conflict. It is suggested that this authorisation exists in the frameworks of both international humanitarian law and international human rights law, as it does for states engaged in such conflicts. It is proposed that such power and legal basis are particularly strong for armed groups in control of territory, and can be gleaned from certain customary law claims, treaty law, as well as some case law on international humanitarian law and human rights. Certain case law of the European Court of Human Rights on detention by de facto non-state entities conceivably reflects a change in traditional thinking on ‘legal’ detention by armed groups.

This article analyses the impact that some of the United Nations special procedures, namely those focusing on economic social and cultural rights (ESC rights), have upon the development of international human rights law, in particular through clarifying the normative content of the rights and the development of soft-law instruments. It also examines the impact of the ESC rights mandate-holders in implementing ESC rights through promotion activities, protection work and country missions and explores modalities for improvement.

The worst food crisis since 1974 broke out in 2007-08. Higher world market prices of food commodities (especially wheat, rice, soya and maize) sparked an unprecedented increase in the number of hungry people. Despite moderately lower prices since the summer of 2008, the number of the hungry continued to rise in 2009. This food crisis has placed the fight against hunger on the international agenda. Since March 2008 governments UN agencies and many social movements have adopted positions on the causes of the crisis and the means to address it. Unfortunately, while these parties are trying to coordinate their activities and suggest new approaches, the old recipes for producing more food are often brought up. Contradictory proposals are made and the thought given to the causes underlying hunger and the food crisis (social, economic and political discrimination and exclusion) has gone largely unheeded. The first Millennium Development Goal, which calls for cutting the percentage of hungry people by half by 2015, is clearly out of reach. But the food crisis might lead to a new world food order based on the three pillars of food assistance, food security and the right to food.

This article looks at the practice of international organisations as well as NGOs addressing the responsibility of armed non-state actors for the violation of international humanitarian and human rights law. It focuses on how the link between the acts and the group concerned has been established and provides some lessons learned.

In the last few decades, the role and status of armed non-state actors (ANSA) have become essential topics of analysis and discussion in order to better understand current international humanitarian law (IHL) and international human rights law (IHRL) dynamics. Although contemporary public international law still seems to be predominantly State-oriented, it is undeniable that a variety of these non-state entities have played quite important roles, giving rise to many discussions and complex debates. One relevant issue is related to the reasons why they are bound by international law. A classical approach to the traditional theory of sources of international law relies on the consent given by States to be bound by an international rule. When dealing with ANSAs, however, the reasons why they are obligated by both IHL and IHRL lie beyond merely accepting the existence of their obligations. While some views take into account their consent, others are based on their relationship with territorial States and the rules previously accepted by States’ authorities. Implementing one or the other is not merely an intellectual exercise, and which alternative is taken will certainly have a direct impact on the effectiveness of international law as perceived by ANSAs.

Presently, many of the greatest debates and controversies in international criminal law concern modes of liability for international crimes. The state of the law is unclear, to the detriment of accountability for major crimes and of the uniformity of international criminal law. The present book aims at clarifying the state of the law and provides a thorough analysis of the jurisprudence of international courts and tribunals, as well as of the debates and the questions these debates have left open. Renowned international criminal law scholars analyze, in discrete chapters, the modes of liability one by one; for each mode they identify the main trends in the jurisprudence and the main points of controversy. An introduction addresses the cross-cutting issues, and a conclusion anticipates possible evolutions that we may see in the future. The research on which this book is based was undertaken with the Geneva Academy.

Enhancing compliance with international norms by armed non-state actors is central to efforts to improve the protection of civilians in armed conflict. Limited engagement with such actors, as well as lack of clarity as to the precise nature and extent of the international legal regimes that are applicable to them, constitute significant barriers to achieving better compliance. In this article the authors argue for international human rights law to be more widely seen as imposing direct obligations upon armed non-state actors and for counter-terrorism legislation not to be interpreted so as to preclude engagement on positive respect for humanitarian norms. What is needed is greater engagement with armed non-State actors, not less.

Foreign fighters are not a new phenomenon: the Spanish civil war, the conflict in Afghanistan against the Soviet invasion, the Bosnian conflict in the 1990s, and the armed conflicts in Chechnya and Dagestan all attracted significant numbers of so-called foreign fighters. However, the term and phenomenon of ‘foreign fighter’ gained particular prominence in the aftermath of the 9-11 attacks against the United States of America (USA) on account of the presence of 'foreign fighters' among the ranks of the Taliban and al-Qaeda in Afghanistan. Against this background, 'foreign fighter' became associated and was often treated synonymously with member of international terrorist networks, namely al-Qaeda. As such, 'foreign fighters' are perceived as a major terrorist threat upon return to their countries of origin, i.e. their state of nationality or habitual residence. The fear is that returning 'foreign fighters', who have been trained and experienced in handling weapons and explosives, may plan and carry out terrorist acts or set up new terrorist cells, recruit new members, and provide new funds. Against this background, the unprecedented influx of 'foreign fighters' to the Islamic State (IS) in Syria and Iraq repeatedly made headlines as one of the biggest terrorist threats to Western states since 9-11. On 15 August 2014, the United Nations (UN) Security Council adopted Resolution 2170 to specifically address the phenomenon of ‘foreign terrorist fighters’. The Geneva Academy Briefing on 'foreign fighters' does not provide a general assessment of the policies and measures adopted to deal with the phenomenon of 'foreign fighters', such as counter-radicalisation initiatives or operational measures to improve border security. Instead, looking at the various international legal questions raised by the phenomenon of 'foreign fighters' and the measures taken to combat this phenomenon, the Geneva Academy Briefing proposes to look at the phenomenon of 'foreign fighters' from the perspective of international law, including their status under international humanitarian law, the counter-terrorism regime applicable to 'foreign fighters', and selected human rights issues, such as deprivation of citizenship or limitations to movement. A recurring theme is the conflation between international humanitarian law and the counter-terrorism regime. While the Briefing uses the term foreign fighter, it also illustrates that the term itself is problematic: ‘Foreign fighters’ is used to describe individuals who leave their country of origin or habitual residency to join an armed insurgency abroad. Although the term ‘fighter’ conveys the idea that these are individuals who join armed groups and actively participate in fighting, the current usage of the term covers various forms of assistance to, support for or association with armed or terrorist groups. Moreover, ‘foreign fighters’ are ‘foreign’ because they do not habitually live in their destination state, i.e. the conflict state; they travel from abroad to associate with an armed group. Yet, using the term ‘foreign fighters’ as part of counter-terrorism discourse asserts their foreignness not only in relation to their destination state, but also their state of origin or habitual residence. Such ‘othering’, i.e. the process whereby we assert that some people do not belong, is translated into legal measures, namely the revocation of citizenship.

The terms ‘armed non-state actors’ (ANSAs), ‘organized armed groups’, ‘insurgents’ or ‘terrorist groups’ are not defined in international treaties or international customary law. However, there are legal and political consequences attached to these terms. As an effort to better understand the concept of an ANSA itself and its regulation under international law, this chapter proposes to further reflect on what are ANSAs, by proposing a critical analysis of each of its constitutive terms: ‘armed’ v. ‘non-armed’, ‘state’ v. ‘non-state’, and ‘actors’ v. ‘individual’. We will see that a multiplicity of meanings and legal consequences can be drawn from each of these apparently straightforward words, which perhaps shows that the concept of an ANSA is not as well understood under international law as one would hope.

On 28 February 2013, the ICTY Appeals Chamber acquitted Momčilo Perišić, former Chief of Staff of the Yugoslav Army. He had been convicted at trial for having aided and abetted — through the provision of weapons and personnel — the crimes committed by the Army of the Republika Srpska in Sarajevo and Srebrenica. The Appeals Chamber found that, when the accused is remote from the crime, the prosecution must show that he/she specifically directed his/her assistance towards the perpetration of specific crimes and not only generally towards the realization of activities which could be either lawful or unlawful. On 23 January 2014, a different bench of the ICTY Appeals Chamber, in Šainović et al., rejected this theory and affirmed that specific direction is not an element of aiding and abetting in customary international law. This article explores the origins of ‘specific direction’ and concludes that although it comes up in some ICTY judgments, it has never been applied in the sense propounded by the Perišić appeal judgment. Given that the issue remains a source of debate in the jurisprudence, the authors consider the merits of both positions and question whether the temporal or geographical location of the alleged aider and abettor should change the legal elements of the mode of liability. They examine the implications of requiring that the provision of assistance must be directed towards unequivocally unlawful activities and conclude that requiring specific direction blurs the lines between aiding and abetting — an accessorial mode of liability — and forms of principal perpetration.

Communal lands and natural resources in rural Cambodia have transformed over the past 30 years as the country attempts to transition from conflict to liberal democracy and integrates into global agricultural value chains. We find that gender relations are changing as a result of land privatization and the ensuing social and ecological crises of production and reproduction. The forest has become a space for the articulation of new masculinities modulated through class and racialised power, while women are increasingly relegated to the private space of the home and village, negotiating expectations that they perform care, farming and food provisioning work while juggling household debt. We ground our argument in a large sample of qualitative interviews conducted between 2016 and 2020 in the upland provinces of Kampong Thom, Kratie and Ratanakiri that provide narrative accounts of the transformation of common forest and grazing lands, logging livelihoods and food provisioning practices. Using a feminist political ecology perspective, we highlight the contradictory processes of enclosure of the commons, which operate simultaneously as sites of violence, resistance, adaptation and continuity.

At the time of its adoption on 10 December 1948, the Universal Declaration of Human Rights resounded as a promise for a better future only a few years after humankind had been subjected to the atrocities of the Nazis and the destruction and upheaval of two world wars. The Universal Declaration of Human Rights is not only the first comprehensive international instrument devoted to human rights and fundamental freedoms, it signals more fundamentally the beginning of a new era for public international law. This era has witnessed a gradual move away from a purely state-centred paradigm to an individually oriented dynamic. Over the last 60 years, the Universal Declaration of Human Rights has become the standard of reference for fundamental rights and many if not all of its provisions are nowadays part of customary international law. However, the very...

There is an increasing number of natural and human-made disasters. There has also been increasing attention given to international disaster response laws. In a recently published study, the International Federation of Red Cross and Red Crescent Societies stated that in mixed situations of disaster and conflict, international humanitarian law will prevail with international disaster response law instruments varying in their applicability. This paper examines whether in fact international humanitarian law is sufficient to deal with mixed situations, in particular, with relief efforts. The author concludes that international humanitarian law is useful as a basis, but other areas of law are essential in filling the gaps, particularly international disaster response laws. As such, the author believes emerging international disaster response law instruments should be encouraged to have a broad scope whereby these instruments include mixed situations too.

En 2007 et 2008 a éclaté la plus importante crise alimentaire depuis 1974. La hausse du prix des denrées alimentaires sur le marché international, en particulier du blé, du riz, du soja et du maïs, a entraîné une augmentation sans précédent du nombre de personnes sous-alimentées. Malgré une diminution relative du prix des denrées alimentaires depuis l’été 2008, le nombre de personnes sous-alimentées a continué à augmenter en 2009. Cette crise alimentaire a remis la lutte contre la faim au cœur des préoccupations internationales. Depuis le mois de mars 2008, les Etats, les agences des Nations unies et une grande partie des mouvements sociaux ont pris position sur les causes de la crise et les moyens d’y remédier. Malheureusement, alors que ces acteurs tentent de coordonner leurs activités et de proposer des solutions nouvelles, ce sont souvent des recettes anciennes, visant à augmenter la production alimentaire, qui sont mises en avant. Les propositions faites sont souvent contradictoires et les réflexions sur les causes profondes de la faim et de la crise alimentaire – les exclusions sociales, économiques et politiques et les discriminations – ne semblent pas avoir été entendues. Le premier Objectif du Millénaire pour le développement, qui vise à réduire de moitié la proportion des personnes souffrant de sous-alimentation et vivant dans l’extrême pauvreté d’ici 2015, est devenu clairement inatteignable. Mais la crise alimentaire pourrait être à l’origine de la création d’un nouvel ordre alimentaire mondial, basé sur les trois piliers que sont l’aide alimentaire, la sécurité alimentaire et le droit à l’alimentation.