Chris Jenks

Debate: The role of international criminal justice in fostering compliance with international humanitarian law

Much has been written about the “deterrent” role of international courts and tribunals in preventing potential atrocities. Since the establishment of the ad hoc tribunals and the International Criminal Court, the international community has sought to anchor the legitimacy of international justice in the “fight against impunity”. Yet recent studies have suggested that an overly broad characterization of international courts and tribunals as “actors of deterrence” might misplace expectations and fail to adequately capture how deterrence works – namely, at different stages, within a net of institutions, and affecting different actors at different times.1 The Review invited two practitioners to share their perspectives on the concrete effects of international criminal justice on fostering compliance with international humanitarian law. Chris Jenks questions the “general deterrence” role of international criminal justice, contending that the influence of complicated and often prolonged judicial proceedings on the ultimate behaviour of military commanders and soldiers is limited. Guido Acquaviva agrees that “general deterrence”, if interpreted narrowly, is the wrong lens through which to be looking at international criminal justice. However, he disagrees that judicial decisions are not considered by military commanders, and argues that it is not the individual role of each court or tribunal that matters; rather, it is their overall contribution to an ever more comprehensive system of accountability that can ultimately foster better compliance with international humanitarian law. DEBATE International Review of the Red Cross (2014), 96 (895/896), 775–794. Generating respect for the law doi:10.1017/S1816383115000363

Reimagining the Wheel: Detention and Release of Non-State Actors under the Geneva Conventions

After more than a decade of sustained armed conflict, the international community continues to struggle with the issues posed by non-State actors participating in hostilities. Issues range from the micro, of if and when individuals may be targeted and detained, to the macro if not meta level of which legal regime to apply. This chapter considers detention from a pragmatic approach and proposes that the 1949 Geneva Conventions and Additional Protocols I and II, outmoded and seemingly inapplicable though they are in some respects, offer the most thorough, humane, realistic and readily available option for determining how to treat and when to release non-State actors detained during armed conflict.