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The cornerstone of international refugee law is the principle of non-refoulement , which protects refugees, asylum seekers, and other persons with protection needs from being returned against their will to a place where they risk facing persecution or other fundamental rights violations. A person who is protected against refoulement may, however, return voluntarily. Determining when such returns are truly voluntary is an issue increasingly at the heart of discussions about the lawfulness of returns, including recently in the Lake Chad Basin, East Africa, the Middle East, Southeast Asia, Europe, and Australia. Today, there does not appear to be a generally agreed legal standard to determine when a return is truly voluntary. Likewise, international law does not define a clear line at which State action to 'incentivize' or 'induce' returns amounts to refoulement or an unlawful expulsion. However, recent publications by international law expert bodies and ensuing debate among States have provided some indications as to where international law stands on the issue and the direction in which it might develop. Thus, this article first examines the interplay between voluntary returns and the principle of non-refoulement. Secondly, it analyses recent positions taken by the International Law Commission and the United Nations Committee against Torture concerning legal limits on the measures that States may take to incentivize or induce returns. Thirdly, the article considers certain measures taken by States to incentivize or induce the 'voluntary' return of a person and indicates when such measures may amount to acts of coercion or force in violation of international law. [ABSTRACT FROM AUTHOR]

Answering the question of whether international law prohibits sexual violence by armed groups against child soldiers in their own ranks should be straightforward: it is prohibited. However, as seen in recent cases before the International Criminal Court (ICC), this is not necessarily the case. The present article critically discusses two approaches suggested in ICC jurisprudence, namely prosecuting sexual violence against children as constitutive of the war crime of 'using [children] to participate actively in hostilities' (Article 8(2)(e)(vii) of the ICC Statute), or directly as the war crime of 'committing rape [or] sexual slavery' (Article 8(2)(e)(vi) of the ICC Statute). First, it is shown that prosecuting sexual violence under the crime of using children to participate actively in hostilities is unconvincing. Abusing children for sexual purposes does not fall under the scope of active participation in hostilities. If it did, this could have the unintended consequence of depriving children of their civilian status and protection under other provisions of the ICC Statute and international humanitarian law (IHL). Second, it is argued that in the Ntaganda case the Pre-Trial Chamber (PTC) circumvented the question of whether and to what extent children may generally lose their civilian status and protection under IHL if they become member of a party's armed forces. If children join armed groups or armed forces, the questions arise whether IHL addresses intra-party violence, and under what conditions such violence can be prosecuted as a war crime in non-international armed conflicts. [ABSTRACT FROM AUTHOR]

Under carrier sanction legislation, carrier personnel are obliged to control migrants’ documentation at the point of embarkation, and to deny boarding to undocumented migrants. In this respect, private carrier personnel become a first instance immigration control, having to deal not only with migrants, but also with asylum seekers who may be in need of international protection. In border control situations, the refoulement of refugees by state agents would violate the state’s non-refoulement obligation. Carrier sanctions pose two particular difficulties for the establishment of state responsibility: first, the potential rejection of asylum seekers at the point of embarkation is executed by non-state actors, whose conduct is only under certain circumstances attributable to the state. Second, while states’ obligations to protect human rights apply to persons under their jurisdiction, embarkation control takes place on the territory of another state and, therefore, is arguably outside the controlling state’s jurisdiction. After providing a brief history of the emergence of carrier sanctions under international law, this article finds that the conduct of carrier personnel – when acting in accordance with carrier sanction legislation – is attributable to the state. Moreover, prohibiting an asylum seeker to board a carrier practically denies the person the right to seek asylum, and may amount to a violation of the principle of non-refoulement. Finally, it is found that state jurisdiction is currently interpreted restrictively and does not include the rejection of asylum seekers on another state’s territory. However, it is argued that human rights bodies should enhance the scope of state jurisdiction in cases where states do abroad what they are prohibited from doing at home. [ABSTRACT FROM AUTHOR]