Embedded Files
by
Lika Chimchiuri
CyJurII Theorist
on 8 September 8, 2026
PDF AVAILABLE
Abstract
Abstract
The paper examines the effectiveness of the basic principles of international humanitarian law, namely differentiation, proportionality and military necessity, in modern wars and conflicts. Particular attention is paid to new challenges such as hybrid warfare, cyberattacks, the use of drones on the territory of other states and autonomous weapons systems.
The paper also examines the problem of determining responsibility. It is often difficult to determine who is behind a cyberattack or other technological attack. This problem complicates the assignment of responsibility to specific individuals or states and creates the so-called “responsibility gap”.
The paper also focuses on the positive aspects of technology. In particular, it discusses the use of open source intelligence (OSINT), digital forensics and satellite data to prove crimes and violations of international law. In this regard, the practice of the International Criminal Court (ICC) and the Berkeley Protocol, which sets standards for the collection and use of digital evidence, are important.
The final section of the study compares two important examples of transitional justice, for example: the Colombian JEP and the South African Truth and Reconciliation Commission (TRC). The study shows that achieving peace does not only mean the cessation of war or violence. Sustainable peace requires ensuring justice, establishing accountability, protecting the rights of victims and reconciling society.
The paper concludes with recommendations aimed at developing existing rules of international law in line with modern technologies and new forms of warfare.
KEYWORDS: IHL, Accountability, Attribution, AI, Autonomous Weapon Systems, OSINT.
Introduction
Introduction
The development of armed conflicts has also influenced the application of international humanitarian law (jus in bello). In the past, wars were mainly fought along clearly defined front lines. There was a practice of officially declaring war and after the war, states concluded peace treaties. In such conditions, it was easy to determine who was a participant in the war and who was a civilian. It is these traditional approaches that are based on the Geneva Conventions of 1949 and the Additional Protocols of 1977.
Today, the form of wars and conflicts has changed significantly. Drones, lethal autonomous weapon systems (LAWS), cyberattacks and space technologies are used. Private military companies (PMCs) and various non-state groups are also involved in conflicts. This has made it more difficult to determine where war ends and peace begins. It is also difficult to determine who is behind a specific attack or cyberattack. This is called the “attribution problem”. This problem is directly related to the issue of responsibility of both the state and specific individuals.
Against this background, the question of this study is whether the existing mechanisms of international humanitarian law remain sufficiently effective for establishing responsibility in conflicts characterized by technological complexity, anonymity and the increasing autonomy of military systems. The study argues that the principal problem is not the disappearance of existing legal rules, but the growing difficulty of applying them effectively to new factual and technological circumstances. Accordingly, the challenge is to preserve the existing normative framework while adapting attribution, evidentiary and accountability mechanisms to contemporary forms of warfare.
The study uses two main legal methods. The first is the historical-legal method. It discusses how the basic principles of international humanitarian law have developed: differentiation, proportionality and military necessity from traditional wars to modern, including cyber and technological wars. Historical analysis shows that international law has tried to legally regulate the problems caused by new military technologies at different times.
The second is the comparative-legal method. Using it, the Rome Statute of the International Criminal Court is compared with the transitional justice models of various countries. It also compares traditional investigative methods with modern technological tools, such as open source intelligence (OSINT), digital forensics and satellite data. An interesting example in this regard is Bellingcat’s documentation of facts related to various conflicts, including the collection of information about the events in Bucha.
The study also discusses different models of transitional justice. In particular, it compares the Colombian Special Jurisdiction for Peace (JEP), which is more focused on the restoration of the rights of victims and justice, and the South African Truth and Reconciliation Commission (TRC), which attached particular importance to establishing the truth, recognition and, in certain cases, amnesty.
Finally, the study argues that the basic principles of international humanitarian law are still relevant today. However, in the conditions of modern technologies and new forms of warfare, it is necessary to develop existing mechanisms of accountability and justice and adapt them to the new reality.
1. The deficit of responsibility and accountability in the modern law of war
International humanitarian law has historically developed as a normative system whose primary purpose is to reduce human suffering during armed conflict and to place hostilities within a defined framework. Historical and legal analysis shows that classical jus in bello was based on a bipolar, clearly delimited state-centric model, where the subjects of conflict were sovereign states, and hostilities took place on a geographically identifiable battlefield[1].
The foundation of this architecture is formed by four classical principles, codified in the 1949 Geneva Conventions and their 1977 Additional Protocols, namely:
The principle of distinction requires parties to an armed conflict to distinguish at all times between civilians and combatants and between civilian objects and military objectives. This principle constitutes one of the fundamental rules governing the conduct of hostilities and is reflected, inter alia, in Articles 48 and 52 of Additional Protocol I[2].
The principle of proportionality prohibits an attack when the expected civilian casualties or damage clearly outweighs the anticipated direct and concrete military advantage3.
The principle of military necessity permits the use of force only to the extent and nature necessary to subdue the adversary and not contrary to the norms of law.
The precautionary principle obliges military commanders to take all feasible measures to ensure the protection of civilians (Article 57)[3].
Historical and legal retrospect confirms that in traditional warfare, violation of these principles resulted in dual responsibility: international legal responsibility of the state (for unlawful acts) and individual criminal responsibility (for war crimes)[4]. However, the technological revolution and the asymmetric nature of conflicts have posed significant challenges to this classical dogma.
The main obstacle to legal responsibility in modern asymmetric conflicts is the identification of the subject of the action. According to Articles 4 and 8 of the International Law Commission (ILC) “Articles on State Responsibility” (ARSIWA), the action of a non-State actor or private entity is attributable to a State only if that entity acts as an official organ of the State, under its “effective control”[5].
Comparative legal analysis shows that it is particularly difficult to determine who is responsible for digital and hybrid conflicts, a problem that is further compounded when proxy groups or anonymous hackers are used for attacks.
A good example of this is the 2017 NotPetya cyberattack, which damaged critical infrastructure in various countries around the world and disrupted the work of many organizations. In cyberattacks, attackers often use other servers, countries, or proxy groups to hide their identity. This makes it difficult to determine which state is behind the attack.
This problem is important for international law, as specific evidence is required to hold a state responsible. International court practice, including Nicaragua v. USA (1986) [6] and Bosnia and Herzegovina v. Serbia and Montenegro (2007) [7], It shows that it is not always easy to attribute an act directly to a State. In Nicaragua v. United States, the “effective control” test was established and further refined in Bosnia and Herzegovina v. Serbia and Montenegro, which makes it particularly difficult to establish State responsibility in cyberspace. In particular, the International Court of Justice relies on Article 8 of the Articles on State Responsibility (ASR), according to which the conduct of a private individual or group is attributable to a State if they act at the direction, direction or control of that State. In Nicaragua v. United States (1986), the Court explained that financial or logistical support alone is not sufficient for attribution; “effective control” must be demonstrated, which implies the detailed management of each specific operation by the State. This approach was further strengthened in Bosnia and Herzegovina v. Serbia and Montenegro (2007), where the Court stressed that a State’s responsibility for an act of genocide would only arise if the perpetrator group acted as a “de facto organ” of the State or in a state of complete dependence. In cyberspace, this standard creates a vacuum. Since States often use so-called “patriotic hackers” or proxy groups to which they give only general strategic direction and not tactical orders, it becomes almost impossible to prove
“effective control”. As a result, even when the geographical source of an attack is technologically determined, it cannot be legally linked to the will of the State, leaving cyber-aggression beyond the reach of justice.
It is important, however, to distinguish between attribution for the purposes of State responsibility and the attribution of criminal conduct to an individual. The law of State responsibility determines when conduct may legally be attributed to a State, whereas international criminal law concerns the individual responsibility of natural persons for international crimes. These two regimes may interact in the same factual situation, but they are governed by different legal standards and serve different purposes. Consequently, the existence of a connection between a cyber group and a State does not, by itself, establish the individual criminal responsibility of a particular commander or official.
Furthermore, the use of drones also creates problems of accountability and transparency. Cases where drone operations are carried out on the territory of another state and their organizers or executors are not fully known are particularly difficult.
For example, if a military or intelligence operation is classified, it may remain unclear to the public and the affected individuals who made the decision to attack and who is responsible for possible civilian casualties. In such cases, both the establishment of the facts and the right of the victims to demand an investigation and legal responsibility become difficult.
Thus, the examples of cyberattacks and drone operations show that the development of technological capabilities in modern wars has made it difficult to establish responsibility. That is why it is necessary to develop legal and evidentiary mechanisms that will make it possible to more effectively identify the real author of the attack and those responsible.
The most severe legal vacuum is created by the use of lethal autonomous weapon systems (LAWS) and military AI. When the decision to identify, select, and destroy a target is made by an algorithm (without human involvement - human-out-of-the-loop), the traditional chain of individual criminal responsibility is broken[8].
In this context, the problem of applying the doctrine of Command Responsibility, codified in Article 28 of the Rome Statute of the International Criminal Court (ICC), arises[9].
Under Article 28 of the Rome Statute, a military commander may be held criminally responsible for crimes committed by forces under his command if he knew or should have known about the crime and failed to take appropriate measures to prevent it. However, this issue becomes more complicated in the case of autonomous artificial intelligence (AI).
First, AI is not a human being and is not a criminally liable entity. It does not have legal personality and cannot be held criminally liable. In this case, AI should be considered as a weapon or technological tool used by a human being to achieve a specific goal.
The second problem is related to the so-called “black box” effect. This means that in some complex AI systems, it is not always clear to a human being how the system arrived at a particular decision. For example, a military AI system may independently select a target and decide to attack without the operator knowing exactly why the system made that decision.
Here the main legal question arises: if the commander did not know in advance and could not reasonably have predicted the AI’s mistake, how fair is it to hold him criminally liable?
This is where the Accountability Gap comes in. If the AI cannot be held accountable and in order to establish the commander’s liability, it is necessary to prove his knowledge, intent or negligence (mens rea), a situation may arise where a serious consequence has occurred, but it is difficult to prove the criminal liability of a specific person. The accountability gap should therefore not be understood as meaning that autonomous weapons necessarily eliminate legal responsibility. Rather, the concern is that increasing autonomy may complicate the identification of the human conduct, knowledge, intent or negligence necessary to establish individual responsibility. The legal challenge is consequently to ensure that responsibility remains traceable through the stages of weapon design, procurement, programming, deployment, authorization and operational supervision.
Therefore, when using autonomous weapons systems, it is necessary to determine in advance who is responsible for the consequences of the decisions made by the AI, and by what standard should human control and supervision be assessed[10].
As we have already mentioned, all this can create a so-called “accountability gap”. This means a situation where a serious consequence has occurred, but it is difficult to name a specific responsible person or state.
AI cannot be held responsible because it does not have legal personality. It may also be difficult to prove the responsibility of a commander if it cannot be proven that he knew or should have known about a possible error by the AI. The issue of the responsibility of a software developer is also difficult, because military actions do not fully fit into the rules of liability for ordinary civilian products.
In this case, there is a danger that in the event of a crime or serious violation of the law, the person responsible will not be identified. This reduces the preventive and deterrent function of international humanitarian law.
To solve this problem, it is important to establish the connection between the state and various groups. One important example of this is the International Criminal Tribunal for the former Yugoslavia (ICTY) case Prosecutor v. Duško Tadić (1999).
In the Tadić case, the Appeals Chamber used the so-called “Overall Control” approach. Simply put, it is not always necessary to prove that a state specifically ordered a particular attack. It may be important to show that the state financed, supplied, provided technical assistance to, or coordinated the group’s activities in an overall strategic manner[11].
This approach differs from the “effective control” standard used by the International Court of Justice (ICJ). The difference between these approaches should not be understood simply as a choice between two competing attribution tests applicable in every context. The ICJ applied the effective control standard in determining whether the conduct of a non-State group could be attributed to a State for the purposes of State responsibility, while the ICTY's overall control approach arose in the context of determining the international character of an armed conflict and questions of individual criminal responsibility. The different factual and legal contexts therefore need to be taken into account when considering their relevance to cyber operations. In Nicaragua v. United States (1986), attribution of a specific act to a State required a more stringent proof,
i.e., the State’s specific and direct control over a specific operation had to be proven[12].
In cyberspace, such direct control is particularly difficult to prove. For example, a hacking group may use servers in other countries, encrypted communications, or anonymous accounts. It is therefore often difficult to determine who gave a specific order.
This is where a “general control” approach may be more practical. The investigation may also look at other types of evidence, such as who financed the group, who provided its technical infrastructure, who provided resources, and whether there was a strategic cooperation between the state and the hacking group.
The foregoing analysis suggests that the attribution problem in cyberspace cannot be resolved merely by transferring existing standards mechanically from traditional armed conflicts to digital operations. A more technologically sensitive approach should be considered, particularly where a State exercises sustained financial, technical, infrastructural or strategic support over a cyber group. Such circumstances should not automatically establish attribution, but they may constitute a cumulative evidentiary basis for determining whether a sufficiently close relationship exists between the State and the operation. The proposed approach should therefore supplement, rather than simply replace, existing rules of attribution, while preserving the requirement of reliable evidence and avoiding automatic attribution based solely on geographical or infrastructural proximity.
For example, if the investigation establishes that a group of so-called “patriotic hackers” received financial support, used technical infrastructure provided by the state, and acted in accordance with the state’s strategic interests, this could be important evidence in establishing its connection to the state[13].
Thus, in modern cyber conflicts, it is not always sufficient or possible to identify a specific command alone to establish responsibility. It is also necessary to assess the financial, technical, logistical and strategic links between the state and a specific group.
This approach is of particular importance in cyber operations, as it allows for the establishment of responsibility to take into account not only the direct command, but also the overall support and control exercised by the state.
Technology as a Tool for Justice: Digital Evidence and International Litigation
Technology as a Tool for Justice: Digital Evidence and International Litigation
With the development of international criminal justice, the types of evidence used by international courts have changed significantly. Historical and legal analysis shows that the main part of the evidence in the Nuremberg and Tokyo international military tribunals held after World War II was official state documents and witness testimonies[14].
This was natural, since at that time modern technologies for obtaining and storing information did not yet exist. Accordingly, the courts relied mainly on documents that were kept in state institutions, such as military orders, official letters, reports and other state documents. Also important were the testimonies of people who were present at the events themselves or had information about the crimes committed.
Later, during the activities of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), the types of evidence became more diverse[15].
In these courts, witness testimony was still important, but physical and scientific evidence was also given greater importance. For example, in the investigation of mass murders, the discovery of mass graves and the results of their exhumation became important evidence. Specialists examined the remains, determined the causes of death, the nature of the injuries and other important facts. With the help of this data, it was possible to determine what happened, how many people died and whether the death was violent.
Thus, with the development of international criminal law, the approach to the use of evidence also changed: if the Nuremberg and Tokyo trials relied mainly on documents and witness testimonies, the practice of the ICTY and ICTR also increased the importance of physical and scientific evidence[16].
This development laid the foundation for the modern stage, when it is already possible to use digital evidence, satellite photos, video recordings, social media material, OSINT and digital forensics in the investigation of international crimes.
Despite their importance, traditional evidence was associated with serious procedural challenges, namely:
Witness testimonies are subject to memory fragmentation over time, subjective interpretation and risks of intimidation/intimidation.
Physical evidence in an armed conflict zone is often subject to destruction or manipulation by the opposing party.
In response to these historical and legal challenges, the phenomenon of Open-Source Intelligence (OSINT) and digital forensics emerged in 21st century international justice, which changed the paradigm of evidence collection[17].
In modern armed conflicts, including the documentation of alleged crimes committed in Ukraine, such as the events in Bucha and Mariupol, OSINT tools such as high-resolution satellite imagery, smartphone video, geolocation data, and digital maps have played a significant role. By comparing these data, it has become possible to independently verify specific events and to refute official statements that deny responsibility or cast doubt on the facts (plausible
deniability).19.
From a comparative legal perspective, the admissibility of digital evidence in international courts is regulated by the legal framework of the Rome Statute and Rules of Procedure of the International Criminal Court (ICC).
Article 69(4) of the Rome Statute[18] allows the Court to assess the relevance and reliability of the evidence presented. The Court considers whether the evidence is relevant to the specific case, whether it is capable of establishing a fact, and whether its admission would adversely
affect the right to a fair trial[19].
This is particularly important in the case of digital evidence. For example, a photo or video shared on the Internet may be very important, but its mere presence does not automatically mean that it is reliable evidence. The court must assess who took the material, when and where it was taken, whether it has been altered and whether its authenticity can be independently verified.
Accordingly, the existence of digital material and its evidentiary value are two distinct questions.
A photograph, video, satellite image or social media post may provide an important investigative lead without necessarily being sufficient, on its own, to establish a disputed fact beyond reasonable doubt. Its evidentiary value depends on authentication, contextualization, corroboration and the circumstances in which it was obtained and preserved. This distinction is particularly important in international criminal proceedings, where the probative value of evidence must be assessed in light of the rights of the accused and the applicable procedural guarantees.
The use of digital evidence has gradually become more important in the practice of the International Criminal Court (ICC). For example, in The Prosecutor v. Jean-Pierre Bemba
Gombo (2016) and The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli (2017), the Pre-Trial Chamber of the Court drew attention to video footage and digital photographs shared on social media, including Facebook. Such material was used to substantiate various facts and to consider arrest warrants[20].
This shows that in modern international justice, material obtained from social networks can also become important evidence, although its use is associated with verification of authenticity and reliability.
One of the most important issues when using digital evidence is the “Chain of Custody”. Simply put, this means that the investigation must be able to show how the evidence reached the prosecutor and then the court.
For example, if there is a video taken during a war, it is important to establish:
▪ Who filmed the video;
▪ When and where was it filmed;
▪ How was it obtained;
▪ Who first saved it;
▪ Whether the video has been altered;
▪ Who had access to it;
▪ How was it transmitted to investigators;
▪ Whether its original form was preserved.
If a significant part of this process is unclear, the defense may doubt the authenticity of the evidence.
The Berkeley Protocol on Digital Open Source Investigations was created to address this problem. It was developed in collaboration with the Office of the United Nations High Commissioner for Human Rights (OHCHR) and the UC Berkeley Center for Human Rights. The protocol helps researchers and investigators properly collect, verify, preserve, and document information obtained from open sources[21].
For example, if a researcher finds a video on social media that may depict a war crime, it is not enough to simply download the video. It is necessary to record its source, save the time of publication, record relevant technical data and, if possible, compare it with other independent sources. This increases the likelihood that a court will consider such material as reliable evidence in the future.
However, with the development of technology, new problems also arise. Today, it is possible to create photos and videos using artificial intelligence that look very similar to real material.
Such material is called Deepfake.
Therefore, in the future, the court may be faced with not only the question - “What happened?”, But the more important question - “Did this really happen and is the presented photo or video material real?”[22]
For example, it is possible to create a fake video in which a specific military person is supposedly giving an order. If such a video is presented in court, it will be necessary to examine it technically and legally.
This is where the problem of the so-called “Liar’s Dividend” arises. This means that when the public knows that AI can create very realistic fake material, it becomes easier to reject a real video or photo. The accused can say: “This evidence could be Deepfake”, even when the
material is real[23].
Therefore, artificial intelligence creates a paradoxical situation - on the one hand, technology helps us document crimes, and on the other hand, the same technology allows us to question the reliability of even real evidence.
This development also demonstrates that technological progress creates an evidentiary paradox: the same tools that increase the capacity to document violations may simultaneously reduce confidence in the authenticity of digital material. Consequently, the future of digital evidence should not depend exclusively on the ability to detect manipulated content, but also on the development of reliable methods for documenting provenance, preserving original files, verifying metadata and corroborating digital material with independent sources.
Digital forensics is becoming increasingly important to solve this problem. Its goal is to technically examine digital material and determine whether it is authentic and has not been altered.
One of the methods is hashing. Simply put, a hash is a digital “fingerprint” that corresponds to a specific file. If even a small change has been made to the file, its hash can change. Therefore, it is possible to check whether the file has remained in its original form.
Metadata is also important, including EXIF data in the case of photos and videos. Such data sometimes contains information about when and on what device the file was created, as well as other technical details. However, metadata can also be changed or deleted, so its presence alone is not sufficient and must be evaluated in conjunction with other evidence.
Thus, to determine the reliability of digital evidence, a joint assessment of several factors is required - its source, storage history, technical data, hash, metadata, and consistency with other independent evidence.
Also important in this regard is the “Fruit of the Poisonous Tree Doctrine”. This principle simply means that if evidence was obtained illegally, in some legal systems not only the evidence itself may become problematic, but also other evidence obtained on the basis of it.
For example, imagine that an investigator illegally obtained information from a person’s phone. Based on this information, he discovered another video, document or witness. In such a case, the question arises: can this new evidence already be used in court if its discovery is related to information that was initially obtained illegally?
The idea of this doctrine is precisely that the initial evidence obtained illegally should not pave the way for the illegal acquisition of other evidence.
However, it is important to note that the “fruit of the poisonous tree” doctrine is not applied uniformly and automatically in all international courts. Its application depends on the specific court, the circumstances of the case and the relevant procedural rules. Therefore, in the case of digital evidence, it is necessary to assess not only its authenticity, but also the legality of its acquisition.
Thus, modern technologies have significantly expanded the possibilities of obtaining evidence in international justice. Today, it is possible to use information that was almost impossible to obtain in the past: satellite photos, social media material, videos shot on mobile phones, geolocation data and other digital information.
However, technology alone cannot guarantee the reliability of evidence. It is necessary to verify its authenticity, establish its source, protect the chain of custody, use digital forensics, and assess the legality of its acquisition26.
3. The dichotomy of peace and justice, transitional justice as a guarantor of sustainable peace
In the field of international law and conflict resolution, an important question is what constitutes true peace. Is it enough to end a war, or is it also necessary to resolve the problems that caused the conflict?
Two important concepts are used to explain this issue: “Negative Peace” and “Positive Peace.”
“Negative Peace” simply means the absence of violence and war. That is, the parties are no longer fighting, the weapons have been stopped, and a ceasefire or peace agreement has been signed. However, this does not mean that the causes of the conflict or the problems of society have been resolved.
26 United Nations Office of the High Commissioner for Human Rights & Human Rights Center at UC Berkeley School of Law. (2022). Berkeley Protocol on Digital Open Source Investigations: A practical
guide on the effective use of digital open source information in investigating violations of international criminal, human rights and humanitarian law. United Nations.
Chesney, R., & Citron, D. (2019). Deepfakes and the new disinformation threat: The looming crisis for national security, foreign policy, and democracy. Foreign Affairs, 98(1), 147–155.
For example, if a war between two parties has ended and they have signed a ceasefire agreement, but it has not been determined who committed serious crimes, the victims have not been compensated, and there is still a sense of injustice in society, such a situation can be called negative peace. The violence has stopped, but justice and reconciliation have not yet been achieved.
Historically, especially since the establishment of the Westphalian international system, the main goal of international relations has often been to end war and restore stability among states. Accordingly, much attention has been paid to the conclusion of peace agreements and the cessation of hostilities.
This process has sometimes involved amnesty, which meant the release of certain individuals from responsibility for their past actions. The goal of such an approach has often been to quickly end the war and achieve a political settlement[24].
However, such peace is not always sustainable. If serious crimes go unpunished and victims are denied access to justice, the causes of conflict may persist. This is where the second concept comes in: “Positive Peace.” Positive peace means not only the cessation of war and violence, but also the creation of conditions that promote a just, secure, and stable society[25]. This may include:
▪ Investigating serious crimes and punishing those responsible;
▪ Restoring the rights of victims;
▪ Providing compensation and other forms of reparation;
▪ Establishing the truth about what happened during the conflict;
▪ Reforming state institutions;
▪ Strengthening the protection of human rights;
▪ Reconciling different groups in society;
▪ Addressing the social and political problems that contributed to the conflict.
In other words, the distinction can be simply formulated as follows:
For example, if only a ceasefire agreement is signed after a conflict, this may be a negative peace. But if this is followed by an investigation of crimes, reparations for victims, the establishment of the truth, institutional reforms, and a process of reconciliation in society, these are steps towards positive peace.
Closely related to the concept of positive peace is the issue of amnesty. Amnesty means that a state may exempt certain individuals from criminal liability or punishment.
Historically, amnesty has sometimes been used as a means of reaching a political agreement and ending a conflict. However, there are important limitations in modern international law.
In the case of particularly serious international crimes, such as war crimes, crimes against humanity, and genocide, the use of a general amnesty poses serious legal problems.
An important example of this is the decision of the Inter-American Court of Human Rights in the case of Barrios Altos v. Peru (2001)[26]. The Court found that broad amnesty laws that impede the investigation of serious human rights violations and the punishment of those responsible are incompatible with international human rights obligations[27].
The main reason for this is simple: if the state refuses to investigate and hold accountable all serious crimes, victims may not have any chance of receiving justice at all.
Therefore, the modern approach tries to balance the two goals of achieving peace and ensuring justice. It is not enough to simply end a war if serious crimes are completely forgotten as a result.
Finally, the distinction between “Negative Peace” and “Positive Peace” shows that peace should not be understood simply as the absence of war. Sustainable peace also requires addressing the causes and consequences that gave rise to the conflict.
The distinction between negative and positive peace is particularly relevant to transitional justice because the cessation of hostilities does not necessarily eliminate the structural, institutional and social conditions that contributed to violence. A ceasefire may therefore represent an essential first step toward peace while remaining insufficient for the consolidation of a legitimate and sustainable post-conflict order. Transitional justice seeks to address this gap by connecting accountability, truth, reparations, institutional reform and reconciliation.
This is why modern international law increasingly attaches importance to transitional justice, establishing the truth, restoring the rights of victims, reparations, institutional reforms and reconciliation of society. Such an approach contributes not only to ending war, but also to creating a peace that can prevent new violence in the future31.
Historical experience has shown that peace achieved by ignoring justice is short-lived, as the syndrome of impunity contributes to the recurrence of conflict.
Transitional justice includes a complex of judicial and non-judicial mechanisms, including: criminal prosecution, truth commissions, reparations programs, and institutional lustration32.
The comparative-legal research method allows us to compare two fundamental models of transitional justice: the South African confession-amnesty model and the Colombian restorative/hybrid model.
1. South Africa's Truth and Reconciliation Commission (TRC):
Inter-American Court of Human Rights. (2001). Case of Barrios Altos v. Peru. Judgment of March 14, 2001 (Ser. C, No. 75). https://www.legal-tools.org/doc/h7g6toro/
32 United Nations Security Council. (2004). The rule of law and transitional justice in conflict and post-conflict societies: Report of the Secretary-General (S/2004/616). https://digitallibrary.un.org/record/527647?ln=en&v=pdf
The TRC, established in 1995, was based on the principle of “amnesty for truth.” Accused persons were granted individual amnesty if they fully and publicly confessed to politically motivated crimes committed during the apartheid regime[28]. While this model ensured a peaceful political transition, it was criticized for restricting victims' access to criminal justice.
2. Special Jurisdiction for Peace of Colombia (Jurisdicción Especial para la Paz - JEP):
The 2016 agreement between the Colombian government and FARC rebels established the JEP, which is based on a holistic and restorative approach[29]. The JEP legal mechanism provides for differentiated punishments:
Persons who fully admit their guilt, cooperate with the investigation and participate in community rehabilitation work receive an alternative (non-custodial) punishment (restriction of freedom in special zones).
Persons who deny the charge, although their guilt is proven, are subject to ordinary criminal liability (up to 20 years of imprisonment)[30].
The JEP model has shown that it is possible to combine the standards of the Rome Statute (the need for punishment for serious crimes) with a political settlement of the conflict. At the same time, the JEP should not be understood as a model of impunity or as a simple alternative to criminal justice. Its legitimacy depends on the existence of meaningful accountability, participation of victims, truth-seeking and sanctions that remain legally and institutionally connected to the seriousness of the conduct. The Colombian experience therefore illustrates not the replacement of punishment by reconciliation, but the possibility of designing differentiated forms of accountability within a broader transitional justice framework.
The principle of complementarity of the International Criminal Court (ICC), as defined in Article 17 of the Rome Statute, plays an important role in the relationship between peace and
justice[31].
The principle of complementarity simply means that crimes must first be investigated and prosecuted by the state itself. The ICC is not a substitute for national courts and does not automatically hear all cases. The international court intervenes in a case when the state concerned is unwilling or unable to administer real and effective justice[32].
For example, if serious international crimes are committed in a state, but the national authorities do not investigate these crimes at all, deliberately delay the process or try to protect those responsible, there may be grounds for considering the case at the ICC level. The same can happen even when the state is actually unable to conduct an effective investigation or trial.
The main idea of this principle is that determining responsibility is primarily the duty of the national system, and the ICC is an additional, international mechanism.
This gives rise to the idea of the so-called “positive complementarity”. Its essence is that the goal of international justice should not be only for the ICC to consider cases itself. It is more important that the international system supports states to strengthen their own judicial and investigative systems and create mechanisms that can administer justice after war and mass violence.
In this regard, the state can use transitional justice mechanisms. This can include prosecuting perpetrators, restoring the rights of victims, establishing the truth, providing reparations, and reconciling society.
For example, a ceasefire after a war does not mean that the conflict has been finally resolved. If crimes have not been investigated, victims have not received compensation, and a sense of injustice remains in society, the risk of new conflict or violence in the future may still exist.
Therefore, peace and justice are not independent processes. In order to maintain peace, people need to see that serious crimes have not gone unpunished and the rights of victims are recognized and protected.
This is precisely what is meant by the idea that “lasting peace is impossible without justice.” The mere cessation of war may mean a temporary end to violence, but this does not yet mean real reconciliation of society and the consolidation of peace.
At the same time, punishment alone is not enough. If justice is focused only on punishing the perpetrators and does not take into account the needs of victims, establishing truth and reconciling society, its results may be limited. Therefore, it is important that justice simultaneously serves to establish responsibility, restore the rights of victims and reconcile
society[33].
This approach can be called positive complementarity: international justice should not replace national justice, but should help the state to investigate and fairly try serious international crimes itself.
Thus, the approach of modern international law is based on two interrelated ideas: first, responsibility should be established primarily at the national level; second, international mechanisms should ensure that states actually and effectively fulfill this obligation.
Ultimately, sustainable peace requires not only the end of war, but also the establishment of legal responsibility, the establishment of truth, the restoration of the rights of victims, reparations and the reconciliation of society. It is precisely the combination of these processes that creates the basis for a peace that implies not only the absence of violence, but also a just and stable
society[34].
Taken together, the three dimensions examined in this study reveal a common challenge for contemporary international law: the need to maintain accountability when the traditional relationship between conduct, evidence and responsibility becomes increasingly complex. Technological developments complicate attribution and individual responsibility, but they also provide new methods of documenting violations. At the same time, the effectiveness of accountability cannot be assessed solely by the number of prosecutions. Justice must also contribute to the restoration of victims' rights, the establishment of truth and the creation of conditions for sustainable peace. The central challenge is therefore to construct an accountability framework capable of responding simultaneously to technological transformation, evidentiary uncertainty and the demands of transitional justice.
Conclusion
Conclusion
This study demonstrates that the technological and tactical transformation of armed conflicts has placed significant pressure on existing mechanisms for applying and enforcing international humanitarian law. Hybrid warfare, cyber operations, extraterritorial drone operations and increasingly autonomous weapon systems complicate the identification of responsible actors and the establishment of the factual and mental elements required for accountability. The resulting challenge is therefore not necessarily a complete legal vacuum, but an accountability gap arising from the difficulty of applying existing legal standards to increasingly complex technological environments.
Hybrid warfare, cyberattacks, extraterritorial drone operations and autonomous weapons systems (LAWS) are undermining the Attribution Rules on State Responsibility (ARSIWA) developed by the International Law Commission and the doctrine of “Command Responsibility” enshrined in Article 28 of the Rome Statute of the International Criminal Court. The resulting “Accountability Gap” directly undermines the deterrent effectiveness of international law.
Technology is presented not only as a threat, but also as an instrument of justice. Open
Source Intelligence (OSINT) and digital forensics, in line with the Berkeley Protocol standards and the case law of the International Criminal Court, have played a pivotal role in documenting and obtaining irrefutable evidence of war crimes.
A comparison of Colombia’s Special Jurisdiction for Peace (JEP) and South Africa’s Truth and Reconciliation Commission (TRC) has confirmed that “Negative Peace” is short-lived. Sustainable peace requires a holistic approach to transitional justice, where prosecution, truth-telling, and reparations for victims complement each other.
In order to maintain the normative force of international humanitarian law and increase the effectiveness of accountability mechanisms, it is advisable to implement the following reforms, namely:
I. A new binding protocol should be developed within the framework of the UN Convention on Certain Conventional Weapons (CCW), prohibiting fully autonomous lethal weapons, where humans are completely excluded from the decision-making process (human-out-of-the-loop).
It is necessary to establish a binding principle of “Meaningful Human Control”. Responsibility for the final decision to destroy a target should always lie with a human (commander), so as not to eliminate the subject of culpability (mens rea) provided for in Article 28 of the Rome Statute.
Such a prohibition would be justified not only by concerns regarding the reliability of autonomous targeting systems, but also by the difficulty of ensuring meaningful compliance with the principles of distinction, proportionality and precaution when human decision-making is removed from the critical stage of target engagement. A binding instrument should therefore establish minimum requirements concerning human supervision, predictability, reliability, testing, operational limits and post-deployment accountability.
II. The international legal framework should further examine whether existing attribution standards are sufficiently responsive to cyber operations characterized by anonymity, proxy actors and complex technological infrastructure. Rather than automatically lowering the existing threshold of attribution, international practice should develop clearer evidentiary criteria for assessing cumulative indicators of State involvement, including financial support, technical assistance, operational coordination, infrastructure provision and sustained strategic direction. Such indicators should be evaluated collectively and in accordance with the applicable legal standard, while preserving the requirement of reliable and sufficient evidence.
III. The minimum standards of the “Berkeley Protocol” developed by the UN and the Berkeley Center should be formally integrated into the “Rules of Procedure and Evidence” of the International Criminal Court.
Such integration should not transform the Berkeley Protocol into an automatic admissibility rule. Rather, its methodological standards could provide guidance for assessing the reliability, provenance, preservation and verification of open-source material while leaving the ultimate assessment of admissibility and probative value to the Court under its applicable procedural framework.
In the era of generative AI and Deepfakes, the admissibility of digital evidence requires mandatory verification of cryptographic hashing and the chain of custody of metadata (EXIF data). This eliminates speculation on the basis of media manipulation by the accused (“Liar’s Dividend”) and ensures a fair trial guaranteed by Article 69(4) of the Rome Statute.
IV. In building peace in post-conflict regions, the international community should prioritize restorative/restorative models similar to the Colombian Special Jurisdiction for Peace (JEP).
Broad amnesty laws that prevent the investigation and prosecution of serious human rights violations are subject to significant limitations under international human rights law. In Barrios Altos v. Peru, the Inter-American Court of Human Rights held that provisions granting broad amnesty for serious human rights violations were incompatible with the State's obligations under the American Convention. The case therefore demonstrates the tension between amnesty as a political instrument for facilitating transition and the obligation to investigate and provide effective remedies for serious violations. while punitive justice alone often prevents the cessation of hostilities. Within the framework of the positive complementarity of the Rome Statute, the establishment of alternative punishments (in exchange for full truth-telling and reparations) provides the optimal balance between criminal responsibility and political stabilization.
International humanitarian law is not a static dogma; it is a dynamic system whose fundamental purpose the protection of human dignity during armed conflict must remain unchanged. The challenge for contemporary international law is therefore not to abandon its existing principles, but to ensure that they remain effective in technologically transformed conflicts. Adapting legal, evidentiary and accountability mechanisms to new forms of warfare is essential to ensuring that technological progress does not become a source of legal impunity, but instead strengthens the capacity of international law to protect human dignity, establish responsibility and contribute to sustainable peace.
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[2] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 U.N.T.S. 3, https://ihl-databases.icrc.org/en/ihl-treaties/api-1977 3 Ibid.
[3] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 U.N.T.S. 3, https://ihl-databases.icrc.org/en/ihl-treaties/api-1977
[4] Henckaerts, J.-M., & Doswald-Beck, L. (Eds.). (2005). Customary international humanitarian law: Volume 1, Rules. International Committee of the Red Cross & Cambridge University Press. https://shop.icrc.org/customary-international-humanitarian-law-volume-1-rules.html?___store=e n
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Part Two.
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[6] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14. https://www.icj-cij.org/case/70
[7] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43.
https://www.icj-cij.org/case/91/judgments
[8] Schmitt, M. N. (Ed.). (2017). Tallinn Manual 2.0 on the international law applicable to cyber operations. Cambridge University Press.
[9] International Criminal Court. (2021). Rome Statute of the International Criminal Court. https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf
[10] Schmitt, M. N. (Ed.). (2017). Tallinn Manual 2.0 on the international law applicable to cyber operations. Cambridge University Press.
[11] International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Duško Tadić, Appeals Chamber, IT-94-1-A, Judgment, 15 July 1999. https://www.icty.org/case/tadic
[12] International Court of Justice (ICJ), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14.
https://www.icj-cij.org/case/70
[13] International Criminal Court. (2021). Rome Statute of the International Criminal Court. https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf
[14] Taylor, T. (1992). The Anatomy of the Nuremberg Trials: A Personal Memoir. Alfred A. Knopf. https://archive.org/details/anatomyofnuremb00tayl
[15] May, R., & Wierda, M. (2002). International Criminal Evidence. Transnational Publishers.
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[19] International Criminal Court. (2021). Rome Statute of the International Criminal Court. https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf
[20] International Criminal Court. (2016). Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III's "Decision on the admission into evidence of materials contained in prosecution's filing 1021", https://www.icc-cpi.int/court-record/icc-01/05-01/08-3343
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[22] Chesney, R., & Citron, D. (2019). Deepfakes and the new disinformation threat: The looming crisis for national security, foreign policy, and democracy. Foreign Affairs, 98(1), 147–155.
[23] Chesney, R., & Citron, D. (2019). Deepfakes and the new disinformation threat: The looming crisis for national security, foreign policy, and democracy. Foreign Affairs, 98(1), 147–155.
[24] Galtung, J. (1969). Violence, peace, and peace research. Journal of Peace Research, 6(3), 167–191.
[25] Teitel, R. G. (2000). Transitional justice. Oxford University Press.
[26] International Criminal Court. (2021). Rome Statute of the International Criminal Court. https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf
[27] Inter-American Court of Human Rights. (2001). Case of Barrios Altos v. Peru. Judgment of March 14, 2001 (Ser. C, No. 75). https://www.legal-tools.org/doc/h7g6toro/ 31 Teitel, R. G. (2000). Transitional justice. Oxford University Press.
[28] Tutu, D. (1999). No future without forgiveness. Doubleday.
[29] Jurisdicción Especial para la Paz. (2017). Ley 1957 de 2019, Estatutaria de la Administración de Justicia en la Jurisdicción Especial para la Paz. Congreso de la República de Colombia. https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=94590
[30] Jurisdicción Especial para la Paz. (2017). Ley 1957 de 2019, Estatutaria de la Administración de Justicia en la Jurisdicción Especial para la Paz. Congreso de la República de Colombia. https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=94590
[31] International Criminal Court. (2021). Rome Statute of the International Criminal Court. https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf
[32] International Criminal Court. (2021). Rome Statute of the International Criminal Court. https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf
[33] Bassiouni, M. C. (2002). Searching for peace and achieving justice: The need for accountability.
Law and Contemporary Problems, 59(4), 9–28.
[34] Bassiouni, M. C. (2002). Searching for peace and achieving justice: The need for accountability.
Law and Contemporary Problems, 59(4), 9–28.
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