Article 5 of the Statute of the International Criminal Court verifies the four most serious crimes to the international community as a whole upon which the Court shall have jurisdiction. Though it includes the crime of aggression the Statute lacks a definition of that crime. The purpose of the article is to offer a sustainable definition. It discusses the constitutive elements of the crime, focussing on the crucial points in a debate that has been actively engaged in for the past 50 years. Certainly, the crux of the matter lies in the role the Security Council should play in this regard. […] there has been a persistent undercurrent of opinion expressive of the view that there is no fixed limit to the possibilities of judicial settlement; that all conflicts in the sphere of international politics can be reduced to contests of a legal nature; that the only decisive test of justiciability of the dispute is the willingness of the disputants to submit the conflict to the arbitrament of law.H. Lauterpacht

This article considers the initiative of UN Security Council Resolution 1624 (2005) in criminalizing incitement to terrorist acts, in the light of criminal and international human rights law. The analysis is informed by the specific type of terrorism with which Resolution 1624 (2005) is concerned, namely ‘modern’ terrorism. The article argues that the rationales for a prohibition on incitement to terrorist acts call for a relatively wide definition of potentially proscribed speech. This can be achieved without excessively infringing freedom of expression. However, the present interpretation of the proposed prohibition is so restrictive that the prohibition may fail to counter the phenomenon with which it grapples. The article also considers whether incitement to terrorist acts can be regarded as an international crime. It concludes that in some instances there may be an overlap between incitement to terrorist acts and certain international crimes, but classification of incitement to terrorist acts as an international crime requires a fragmented approach to terrorism, which is contrary to current trends.

This article draws upon a neo-Gramscian analysis of world order to critically assess the relationship between neo-liberal globalization and socioeconomic rights. It argues that, notwithstanding the well-documented discursive tensions that appear to exist between neo-liberalism and socioeconomic rights, the latter have been reconceptualized in a manner that is congruent with the hegemonic framework of the former in a number of international institutional settings. This has been achieved in part through three discursive framing devices which will be termed ‘socioeconomic rights as aspirations’, ‘socioeconomic rights as compensation’, and ‘socioeconomic rights as market outcomes’. The article will conclude by arguing that, despite such appropriation, there are still fruitful possibilities for counterhegemonic articulations of socioeconomic rights to contest neo-liberal globalization.

International humanitarian law establishes explicit safeguards applicable to detention occurring in non-international armed conflict. However, debate exists as to whether these treaty provisions establish an implicit legal basis for detention. This article approaches this debate in light of the application of international humanitarian law to non-state armed groups. It examines the principal arguments against implicit detention authority and then applies the law of treaty interpretation to international humanitarian law's detention-related provisions. On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted as establishing implicit detention authority, in order to ensure the continued regulation of armed groups. Although, perhaps, problematic from certain states’ perspective, this conclusion is reflective of the current state of international law. However, this is not necessarily the end of the story. A number of potential ‘ways forward’ are identified: implicit detention authority may be (i) rejected; (ii) accepted; or (iii) re-examined in light of the non-state status of armed groups, and what this means for the content of the prohibition of arbitrary detention. These scenarios are examined in light of the desire to ensure: the coherency of international law including recognition of the role of armed groups, the continued effectiveness of international humanitarian law, and state sovereignty. An emphasis is placed on understanding the non-state status of armed groups and what this means for international regulation and the content of imposed obligations.

In this article, I argue that we need a better understanding of the theoretical underpinnings of the current debates in international law surrounding hate speech and inchoate crimes. I construct a theoretical basis for speech acts as incitement to genocide, distinguishing these speech acts from speech as genocide and speech denying genocide by integrating international law with concepts drawn from speech act theory and moral philosophy. I use the case drawn on by many commentators in this area of international criminal law, the trial of media executives for the roles they played in the Rwandan genocide through public speech acts by media entities insulting an ethnic group or advocating violence against an ethnic group. Each of these men were institutional leaders and were charged with using their positions within Rwandan society to distribute what I call genocidal hate speech, genocidal incitement speech, and genocidal participation speech. I argue for a distinction between these three types of speech, and a difference in individual criminal liability for the dissemination of each type of speech. I also argue that there should be a difference in individual criminal liability for speech acts within the context of an ongoing or recent genocide, and speech acts that can be separated from a site of mass violence.

The United States has entered into a fairly large number of bilateral agreements with states parties to the Rome Statute in order to prevent the exposure of US nationals to the jurisdiction of the ICC. Article 98 of the Rome Statute allows for such agreements and provides that the Court should yield to obligations which emerge from those agreements. The author, however, argues that the current scope of these agreements, covering all US nationals, is too wide. They should rather take as a point of departure the status of forces agreements, which envisage primary jurisdiction for the sending state, in case of military service personnel and personnel of peacekeeping operations. In their present form, the bilateral agreements compel states parties to act in contravention of the object and purpose of the Statute.

The role of domestic courts in the development of the international law of jurisdiction is less direct and less important than might be supposed. As a manifestation of the practice and opinio juris of the forum state, domestic judicial decisions take a back seat to legislation and, like legislation, represent the position of a single state alone. The more influential part that domestic judicial decisions and, indeed, proceedings can play in the evolution of the international rules on jurisdiction is as triggers both for reactive practice on the part of other states and for international litigation. Domestic decisions can also shape international law when looked to by foreign courts as persuasive judicial authority.

Playing the devil's advocate, it is argued that ultimately there are no international legal limits to the UN Security Council's enforcement powers. The argument is based on a brief analysis of various UN Charter provisions and the rejection of the ius cogens concept and other possible arguments for international legal limits. The conclusion reached is that the UN Security Council has unfettered powers when dealing with maintenance of international peace and security issues.

Is it true of the Security Council, that: […] because the End of this Institution is the Peace and Defence of […] all; and whosoever has the Right to the End, has the Right to the Means, it belongeth of Right [to him] to be Judge both of the Meanes [sic] of Peace and Defence; and also of the hindrances and disturbances of the same; and to do whatsoever he shall think necessary to be done […]Martti Koskenniemi, quoting from Thomas Hobbes' Leviathan

The article analyses the approach concerning the rules of attribution of conduct to a state followed by the ICJ in the Bosnia v. Serbia case, and contrasts it with that of the International Law Commission. How far the Court modified its own jurisprudence in this field of law is also addressed. Moreover, the question will be discussed of whether the standards applied in the Court's decision are appropriate, considering the needs of the international community regarding the harmful action of private actors conspiring with states.

According to well-established case law of the European Court of Human Rights, the prohibition on expulsion resulting in ill-treatment under Article 3 of the European Convention on Human Rights is ‘absolute’: it does not allow for balancing of interests. Analysis of the Court's case law, however, shows that the application of the provision involves various forms of balancing, for example when delimiting the burden of proof or qualifying an act as ill-treatment. The absolute character expresses a value judgement about the importance of the prohibition, and it serves as an argumentative tool applied to sustain wide or inclusive readings of Article 3 ECHR.

Tens of thousands of contractors work for private military and security companies (PMSCs) during armed conflict and occupation, often hired by states to perform activities that were once the exclusive domain of the armed forces. Many of the obligations and standards that guide states in regulating their armed forces are lacking in relation to PMSCs, raising concerns that states might simply outsource their military policy to PMSCs without taking adequate measures to promote compliance with international humanitarian law (IHL). This article argues that the universally applicable obligation ‘to ensure respect’ for IHL in Common Article 1 of the Geneva Conventions can provide a key mechanism for addressing these concerns.

Current endeavours to develop a ‘realistic’ concept of international law should take into account that there is not only one reality. It does not suffice to admit that reality can be perceived from different angles. Rather, a realistic account of modern society has to acknowledge that we can no longer speak of the ‘world’ or ‘reality’ as a singular entity. Perspectives matter; they construct their own, distinct objects of cognition. A ‘New Legal Realism’ is deliberately new, legal, and realistic only insofar as it is conceived as an understanding of how (international) law creates its own realities.

In a late interview given to the French newspaper Le Monde, Michel Foucault discussed his dreams for a different style of criticism. ‘I can't help but dream about a kind of criticism’, remarked Foucault, in which one would ‘not try to judge, but to bring an oeuvre, a book, a sentence, an idea to life; it would light fires, watch the grass grow, listen to the wind, and catch the sea-foam in the breeze and scatter it.’ This somewhat wistful, poetic thought resonates with more familiar Foucauldian notions regarding the use of theory as a ‘toolkit’ or ‘toolbox’. Common to both these tropes – critique as affirmation and theory as functional – is the desire for thought to be put to work rather than put on trial, for sentences to be brought to life rather than delivered. And yet this presents the would-be Foucauldian book reviewer – and more so where the venue is the impeccably juridical one of the law journal – with a series of alluring problems. How might one elaborate such a Foucauldian critique in a context where one is expressly called upon to judge? What would such a non-judgmental Foucauldian critique look like? Are juridical practices of critique readily susceptible to Foucauldian appropriation or subversion? This set of related questions is emblematic of a wider concern of mine which forms the subject matter of this review essay, namely the place of Foucault (if indeed he has one) in legal theory. How does Foucault, that fabled figure of postmodern antinomianism who supposedly announced the demise and ‘expulsion’ of modern law, relate to legal theory? What might it mean to bring Foucault's unruly poststructuralism ‘into law’? And with what possible effects?

This article explores the structural link between international law's long-standing doctrinal commitment to commerce and its inability to act decisively on behalf of the environment. One of the fundamental rights the early authors of jus gentium discovered was the right to engage in commerce. Francisco de Vitoria, Alberico Gentili, and Hugo Grotius each drew on and applied a providentialist theory of commerce. The doctrine held that Providence distributed scarcity and plenty across the earth so that peoples could not be self-sufficient, but would need to go in search of one another in order to acquire what they lacked. Commerce imagined in its pure form of reciprocal, mutually beneficial exchange would be the means to bring separated mankind to friendship. The embrace of the providentialist doctrine by these early exponents of the law of nations, carried forward by Emer de Vattel, set the stage for international law's longstanding commitment to international commerce, viewed (despite all the distortions) as a virtuous activity that tends to the common good. The doctrine's additional legacy was the installation of a view of nature as commodity. The providentialist doctrine of commerce, adopted by the early authors of international law, remains embedded in the structure of international law and cannot easily be dislodged. Until this doctrine is dislodged, however, international law will continue to be hobbled in its ability to address the urgent task of protecting the natural environment.

This article argues for amending the Rome Statute to remove the state or organizational policy requirement from the classification of crimes against humanity. After a brief look at the requirement itself, the article presents arguments to show how the policy loophole creates an accountability loophole in international criminal law, and how removing it both resolves inconsistencies in the Rome statute and facilitates prosecutions for international crimes. The article's final section examines and responds to leading arguments for keeping the policy requirement. The article is intended to show how the policy requirement limits international criminal law's scope in unwelcome ways and to challenge the use of state or organizational policy as a dividing line between domestic and international crimes.

The arrest of the Chilean general Augusto Pinochet Ugarte in London in 1998, and decisions in UK, Spanish, Belgian, and other European courts supporting his extradition, opened new hope that prosecutions of international crimes in national courts under universal jurisdiction laws might prove a viable strategy for combating impunity. Complainants brought cases in a number of European countries, most notably Spain and Belgium. In Spain, the Supreme Court eventually cut back on the reach of the universal jurisdiction law by superimposing the requirement of a nationality tie to the forum, as well as modifying other prior jurisprudence. In Belgium, the courts grappled with issues of immunity and the ability to initiate proceedings in the absence of the defendant. Under US pressure the Belgian legislature eventually narrowed and weakened the law. The article traces these developments, and concludes that advocates need to be more strategic in choosing both the number and type of cases they present under theories of extraterritorial jurisdiction. The primary criterion, the author argues, should be the potential for the extraterritorial case to catalyze anti-impunity efforts in the territorial state.

Intellectual clashes over the nature of international law have been raging throughout the traceable history of the discipline. Naturalists, positivists, idealists, pragmatists, formalists, realists, and so forth, have striven to put forward and defend credible paradigms of international legal order. The common characteristic of each new wave of criticism has been its unsettling disposition. It arrived stridently with questions and doubts, often seeking reform and often reconceptualization and transcendence. A second common characteristic, notably in the post-enlightenment period, has been the marginalized position of the debate on the merit of each new wave, within and outside legal academia. Indeed, debate over unsettling questions seems to have been exempted from the habitual professional responsibilities of the overwhelming majority of international lawyers. Existential anxieties of this sort have been relinquished to that class of academics usually referred to as jurisprudes or legal theorists. ‘Practicing’ international lawyers, so it is often argued, need not concern themselves with ‘theory’. Their mission is to provide tangible answers to practical problems and, for this task, ‘theoretical’ debate is irrelevant: its outcome is indeterminate, abstract, and, thus, of limited usability. In some cases ‘theoretical’ even becomes a pejorative term, synonymous with counter productive or parasitic.

In this commentary to Matt Halling's paper, the author takes issue with Halling's proposal to amend Article 7(2) of the Rome Statute with regard to the ‘policy element’. Halling's view of plugging ‘loopholes’ in the Rome Statute in abstracto is met with a voice of realism. The author's realism is expressed on different levels and can be summarized in the following questions. As to the need for an amendment of Article 7(2), how realistic are the scenarios presented by Halling? Do they really call for an amendment? As to the function and role of the court, why expand the Court's mandate when it can only prosecute a handful of cases at any one time? As to the Court prosecutorial policy, does the Court need a fine net when it has limited resources and a mandate that requires it to focus on those who bear the greatest responsibility?

This article examines the relationships between representations and operations of sovereignty in natural resource governance. We advance a ‘political ecology of sovereignty’, examining the participation of non-state actors in resource governance processes. We particularly argue that processes of integrating subaltern populations through mapping local ecological knowledge can modify effective governance practices while nonetheless reproducing the legibility of state sovereign authority and its territorial boundaries. Exploring the Enbridge Northern Gateway pipeline in Canada, we suggest that state jurisdictional authority is secured through incorporating indigenous interests as a delimited geography of tradition. Examining the Hatgyi hydroelectric development along the Thai–Burmese border, we argue that the territorial boundaries of those nation-states are rearticulated through the governance of this transboundary development. Through these cases, we demonstrate how the insertion of local knowledge works not only to reconfigure effective governance processes but also to reinforce the effect of state sovereignty in new ways.

In the perennial debate over whether the dependence of international law on power is complete or whether international law maintains some independence for itself, the latter position is increasingly and at best marginal. Here that direction of the debate is reversed. The very dependence of international law on power is integral to a relation of mutual dependence between them. It is in this relation that power constituently depends on an international law which, in its turn, contains a primal efficacy. That efficacy is illustrated in its countering the claims of American empire.