This book scrutinizes the relationship between the concept of international legal personality as a theoretical construct and the position of the individual as a matter of positive international law. By testing four main theoretical conceptions of international legal personality against historical and existing international legal norms that govern individuals, the book argues that the common narrative about the development of the role of the individual in international law is flawed. Contrary to conventional wisdom, international law did not apply to States alone until the Second World War, only to transform during the second half of the twentieth century to include individuals as its subjects. Rather, the answer to the question of individual rights and obligations under international law is—and always was—solely contingent upon the interpretation of international legal norms. It follows, of course, that the entities governed by a particular norm tell us nothing about the legal system to which that norm belongs. Instead, the distinction between international and national legal norms turns exclusively on the nature of their respective sources. Against the background of these insights, the book shows how present-day international lawyers continue to allow an idea, which was never more than a scholarly invention of the nineteenth century, to influence the interpretation and application of contemporary international law. This state of affairs has significant real-world ramifications as international legal rights and obligations of individuals (and other non-State entities) are frequently applied more restrictively than interpretation without presumptions regarding ‘personality’ would merit.

Since the post-Second World War tribunals, only a few scholars have attempted to draw a definitional distinction between international and national criminal courts. Remarkable exceptions include Robert Woetzel, who in 1962 categorized criminal courts according to ‘the involvement of the international community’, and Sarah Williams, who 50 years later relied on the same factor in her definitions of ‘hybrid’ and ‘internationalized’ criminal tribunals.Through examples of rulings by the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, this article will demonstrate that ‘the involvement of the international community’ is at best an unhelpful criterion when it comes to resolving questions, e.g. regarding the immunity of state officials and the relevance of domestic law, that require a determination of the legal system in which the court operates.Instead, it is argued that only criminal tribunals deriving their authority from international law should be labelled ‘international’, while the term ‘national criminal court’ should apply to tribunals set up under national law. This terminology would underline that issues concerning jurisdiction and applicable law must be settled according to each court's constituent document and other relevant sources of law, depending on the legal system to which this document belongs.

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According to the International Committee of the Red Cross (ICRC), the duty to ‘ensure respect’ in Common Article 1 of the Geneva Conventions includes an external dimension: States have to ensure that other states respect their obligations under the Conventions, and arguably under international humanitarian law as a whole. This potentially has far-reaching consequences for states engaging in military operations together with partners, and the ICRC interpretation has been met with explicit pushback from a number of states as well as scholars. The present article seeks to revisit the debate on the extent of the obligation following from Common Article 1 in the context of partnered operations. We begin by providing a detailed outline of the ICRC view on the duty to ‘ensure respect by others’, as well as the reactions from states and scholarly contributions. Against this background, we examine—by carefully applying the customary rules on treaty interpretation enshrined in the Vienna Convention of the Law of Treaties—whether the duty to ensure respect has an external dimension judged by the ordinary meaning and intentions of the drafters, subsequent practice (both in relation to the ICRC and in other contexts) and judicial pronouncements. Having concluded that doctrinal legal analysis does indeed support an external dimension of Common Article 1, we then explore whether this duty to ensure respect by others applies to states regardless of the nature of the armed conflict and their own involvement in it. Finally, we analyse the exact content of the obligations arising from the duty to ensure respect by others under Common Article 1.