Dr Michael John-Hopkins

This article examines the role that international criminal justice plays, firstly in creating history, and secondly in protecting history. With regards to the former function, history, in terms of historical truths and narratives are frequent casualties of war and so the first major thread of this discussion outlines the historiography of international criminal law through the prism of the illustrative case of Al Mahdi before the International Criminal Court. In other words this paper aims to set out an overview of the methods, processes and policies by which international criminal justice develops historico-legal narratives that attempt to get at the truth and protect the past from false or distorted narratives. With regards to the latter function, history, in terms of cultural heritage may often be destroyed in order to destroy the identity and even the existence of a people. Accordingly, the second major thread of this discussion is that when it comes to memorialising the significance of cultural property and the impact of its destruction for the benefit of our collective memory as a basis for punishing criminal acts of destroying cultural property, deterring future criminal acts, and providing victims with reparations, Al Mahdi represents a careful balance between legal pragmatism and legal principle, and furthermore that international criminal justice is an important stakeholder in the reparations and restorations process. 

This article outlines in general terms how the environment of 21st century transnational organised crime, terrorism and unconventional conflict is being shaped by information-related capabilities (IRCs) that foster global networked connectivity and asymmetric responses to conventional military supremacy. This article explores how the conceptual apparatus regarding the distinction between wartime and peacetime, as well as war zones and peace zones, which has been developed within the framework of international criminal law and humanitarian law, can contribute to military-strategic operational and capability concepts.  Integration of these conceptual frameworks within strategic analysis can serve to promote the effective use of force within a full spectrum operational environment in which information, surveillance, target acquisition and reconnaissance thresholds are being raised and where deeper understandings of the social dynamic that sustains ongoing fighting within a global information environment become increasingly feasible. In this context, this article suggests that law enforcement frameworks and approaches have a high threshold of applicability if the strategic failures associated with conventional military operations are to be avoided.

Direct participation in hostilities and membership in an organized armed group are contested and controversial concepts. Recent developments in military and legal doctrine suggest that a more practicable account may supplement the valuable work of the ICRC in its Interpretive Guidance on Direct Participation in Hostilities in order to guide target analysis in the unconventional and civilianized operational environment of contemporary non-international conflicts. The purpose of this article is to extrapolate criminal law models of accessorial liability and co-perpetration in order to elucidate the concepts of direct participation in hostilities and membership in an organized armed group. What is proposed is an intelligence-led framework for target analysis that is grounded in military doctrine and based on a mixture of objective and subjective criteria derived from criminal law. This can foster a better understanding of the social dynamic that sustains on-going fighting which limits the scope for arbitrary and erroneous targeting decisions in doubtful situations.

A survey of contemporary armed conflicts indicates that major military powers are increasingly facing militarily weaker adversaries and being drawn into unconventional engagements in cities, towns, and villages. Given the asymmetry of military capabilities in such conflicts, it is submitted that higher standards of reasonableness be imposed upon military commanders of major military powers to ensure constant care for civilian populations, and furthermore that civilian populations be spared more effectively from the effects of urban warfare by applying customary law ab initio, in order to avoid gaps in protection that may arise from the premature classification of armed conflicts.

The adoption and implementation of Council Directive 2005/85/EC1 (the ‘Procedures Directive'), marks the end of the legislative stage of a nascent Common European Asylum System (CEAS) by establishing minimum standards on ‘fair and efficient asylum procedures in the Member States'. These minimum standards broadly relate to matters such as access to procedures, the right to remain pending decisions, examination requirements, the right to legal assistance, the right to an effective remedy and the application of the ‘safe country' concepts. The Procedures Directive sets out harmonized criteria for the application of the safe third country and the safe country of origin concepts. Nevertheless, various provisions of UK law and the Procedures Directive itself indicate gaps in harmonization. This state of affairs creates the potential for diverse safe country designations, undermines the rights due to refugees in similar circumstances and could, therefore, result in the failure to uphold properly the principle of non-refoulement. In particular, by rendering a range of minimum standards ‘subject to certain exceptions',2 the application of the safe country concepts within the Procedures Directive can be seen as an integral part of the drive towards more efficient asylum procedures within EU Member States. For example, the administrative regime created by the UK's ‘New Asylum Model' (NAM) allows procedural safeguards to be lowered at the front end of the process before a substantive examination of safe country applications has taken place; applicants from countries the UK considers to be safe third countries or safe countries of origin are allocated to ‘fast track' procedures reducing the amount of time available to prepare and present a case; in some cases, applications can be declared inadmissible without any substantive examination. This article focuses on the harmonized criteria relating to these two concepts and their inclusion within the UK asylum system, before exploring whether, and if so, to what extent, the application of such criteria reduces the level of procedural and concomitant substantive protection available to asylum seekers.