Governance in Afghanistan is a complex matter. Afghanistan today is not only the territory of Pashtuns, Tajiks, Northern Alliances, Taliban and Al Qaeda, all of whom are competing for power. Afghanistan is also a social field of other political actors like Germany, the UK, the US, the UN and of the “Six plus Two” group. Is it governance without government?

At a first glance the International Court of Justice (ICJ) has given a clear negative answer to the question submitted to it by the General Assembly. According to the ICJ's advisory opinion from 22 July 2010, Kosovo's declaration of independence did not constitute a violation of international law. Yet, reading the reasons the ICJ offered in support of its holding, one soon discovers that many relevant questions have been left open.

Access to the victims of armed conflicts for humanitarian relief operations is vital for the survival of those victims, especially for the most vulnerable ones. What can international law do to facilitate and secure such access? These remarks shall pinpoint some basic principles and problems.

The ‘debate’ section of the Review aims at contributing to the reflection on current ethical, legal, or practical controversies around humanitarian issues.

The definition of occupation under international humanitarian law (IHL) is rather vague, and IHL instruments provide no clear standard for determining the beginning of occupation. Derived from the wording of Article 42 of the 1907 Hague Regulations, occupation may be defined as the effective control of a foreign territory by hostile armed forces. It is not always easy to determine when an invasion has become an occupation. This raises the question whether or not the law of occupation could already be applied during the invasion phase. In this regard, two main positions are usually put forward in legal literature. Generally it is held that the provisions of occupation law only apply once the elements underpinning the definition set out in Article 42 of the 1907 Hague Regulations are met. However, the so-called ‘Pictet theory’, as formulated by Jean S. Pictet in the ICRC's Commentary on the Geneva Conventions, proposes that no intermediate phase between invasion and occupation exists and that certain provisions of occupation law already apply during an invasion.

The collapse of essential public facilities such as hospitals and water-supply installations, partly due to the large-scale looting and violence that came along with the progress of the coalition forces, in Iraq in 2003 demonstrates that this discussion is not simply a theoretical one. Invading armed forces need clarity as to what rules they need to apply.

Three experts in the field of occupation law – Marten Zwanenburg, Michael Bothe, and Marco Sassòli – have agreed to participate in this debate and to defend three approaches. Marten Zwanenburg maintains that for determining when an invasion turns into an occupation the only test is the one set out in Article 42 of the 1907 Hague Regulations, and therefore rejects the ‘Pictet theory’. Michael Bothe, while also rejecting the ‘Pictet theory’, argues that a possible intermediate situation between invasion and occupation, if there is any at all, would be very short and that, once an invader has gained control over a part of an invaded territory, the law of occupation applies. Finally, Marco Sassòli defends the ‘Pictet theory’ and argues that, in order to avoid legal vacuums, there is no distinction between an invasion phase and an occupation phase for applying the rules of the Fourth Geneva Convention.

The debaters have simplified their complex legal reasoning for the sake of clarity and brevity. Readers of the Review should bear in mind that the debaters’ actual legal positions may be more nuanced than they may appear in this debate.

There are three key deficiencies in the existing body of international humanitarian law (IHL) relating to protection of the environment during armed conflict. First, the definition of impermissible environmental damage is both too restrictive and unclear; second, there are legal uncertainties regarding the protection of elements of the environment as civilian objects; and third, the application of the principle of proportionality where harm to the environment constitutes ‘collateral damage’ is also problematic. These gaps present specific opportunities for clarifying and developing the existing framework. One approach to addressing some of the inadequacies of IHL could be application of international environmental law during armed conflict. The detailed norms, standards, approaches, and mechanisms found in international environmental law might also help to clarify and extend basic principles of IHL to prevent, address, or assess liability for environmental damage incurred during armed conflict.

In the Spring of 2005 the ICRC presented the result of a collective endeavour lasting a number of years. The purpose of its study of Customary International Humanitarian Law (hereinafter, the Study) was to ascertain and state which rules of international humanitarian law (hereinafter, IHL) are part of customary international law. The study is, of course, based on the assumption that in the field of IHL customary law indeed matters. If it did not, the voluminous study would constitute a futile work. But this unattractive perspective does not deter the question: does IHL matter in the field? If so, how and why? And, in addition: what does the Study show as to how customary law is made?

The Study might be meaningful well beyond the scope of IHL. It may convey some lessons on the role and development of customary law in current international relations.

The Protocols additional to the Geneva Conventions, adopted in 1977, broaden the protection afforded by international law to wounded, sick and shipwrecked members of armed forces and to medical personnel, medical units and military medical transports in certain circumstances. Their main purpose, however, is to extend to civilians, civilian medical personnel etc. the protection which hitherto was enjoyed only by military personnel. Thanks to the Additional Protocols, military personnel and civilians today enjoy equal protection.

Los Protocolos adicionales a los Convenios de Ginebra, aprobados en 1977, ampliaron la protectión jurídica internacional otorgada, en determinadas circunstancias, a los heridos, a los enfermos y a los náufragos de las fuerzas armadas y al personal, las unidades y los medios de transporte sanitarios militares; no obstante, su objetivo esencial es extender a los civiles, al personal sanitario civil, etc., la protectión de que sólo se beneficiaban anteriormente el personal o las unidades y los medios de transporte sanitarios militares. En virtud de los Protocolos adicionales, hay actualmente una completa igualdad, por lo que atañe a esa protectión, entre militaresy civiles.