The devastating events of 9/11 triggered the adoption of Resolution 1373 (2001) by the UN Security Council, a contentious development which was much debated and was widely seen as presaging a new type of activity by the Security Council – legislating for all UN member states. And yet, in the counter-terrorism sphere at least, the Council’s legislative activity in the years following 9/11 was relatively modest. Both quantitatively and qualitatively, that activity has been far exceeded by the Council’s response to the emergence of ISIL in 2014. This more recent activity is of interest beyond the confines of counter-terrorism, but has received far less scrutiny to date. This article will remedy this gap, revisiting, in light of the recent activity, the relative merits and disadvantages of making counter-terrorism law through Security Council resolutions. It makes two main contentions. The first is that – due to some factors which were anticipated in the early 2000s and many which were not – Security Council resolutions on terrorism constitute a distinctive category of international law-making and pose serious challenges for the application of organizing principles and processes of general international law. The second is that, for these reasons as well as doubts as to the necessity and efficacy of recent action, making counter-terrorism law through Security Council resolutions should be the exception rather than the norm.

In November 1945, the British colonial authorities convened a court martial of members of the Indian National Army, which had fought alongside the Japanese in the Asia-Pacific War. Three defendants were charged with ‘waging war against the King’ – the equivalent of treason, set out in Section 121 of the Indian Penal Code.

At the heart of the case was the question of allegiance. The chief defence counsel, Bhulabhai Desai, had the task of presenting a legitimate – i.e., non-treasonable – exception to the duty of allegiance to a state during a war. Drawing on Hobbesian themes, Desai insisted that a specific event – the fall of Singapore – had convinced the surrendered Indian troops of the British Army that Britain was no longer capable of protecting their interests. Further, he questioned the very premise of the ‘waging war against the King’ charge, by arguing that during a war of liberation the justice of the challenger eclipsed the security of the challenged.

Desai's approach influenced Radhabinod Pal, who would take these arguments to the International Military Tribunal for the Far East. Pal, like Desai, took as his starting point the differing interests of the powerful states and their colonies. He argued that the Allies’ motives for creating the new charge of ‘crimes against peace’ were highly suspect, considering their own history of violence towards the non-Western world. Would it not potentially immobilize the struggle against colonialism? And, pace Hobbes, could not a colonized state's duty of allegiance to the society of states be relinquished?

The modern professional world of international adjudication bears little trace of the ‘invisible college’ theorized by Oscar Schachter 50 years go. Instead, it has become a social field marked by a fierce competition among actors possessing unequal skills and influence. Moving from these premises, this article unravels the socio-professional dynamics of the community of legal experts – judges, arbitrators, government agents, private counsel, court bureaucrats, specialized academics, etc. – dealing with the judicial settlement of international disputes on a daily basis. On the one hand, the community has developed a specific set of social structures, practices, and dispositions that distinguish it from the rest of the international legal profession and insulate its activities from outside interference. On the other, it is the site of an endless struggle among its participants, who deploy various forms of capital to consolidate their positions relative to one another. Having outlined the twofold structure of the community – externally autonomous and internally conflictive – the article reflects on how co-operation and competition affect the everyday unfolding of international judicial proceedings and the production of legal outcomes at the international level.

The genesis of the jus cogens doctrine in international law has long been associated with a turn to a more value-laden international law after the Second World War promoted by British rapporteurs in the International Law Commission. This article builds on this narrative but adds two seemingly contradictory story lines. In the 1920s and 1930s German-speaking international legal scholars like Alfred Verdross developed the concept as a tool to renounce the disliked Paris Peace Treaties in the context of increasingly aggressive German revision policies. Furthermore, after 1945 Soviet thinkers of the Khrushchev era used jus cogens to criticize Western economic and military integration, while newly independent states regarded the concept as a promising vehicle for distancing themselves from the traditional Western international legal notions in the era of decolonization. Hence, instead of embracing a progress narrative, a dark side account, or a contributionist reading of the history of international law, this article highlights the multifaceted origins of the jus cogens doctrine.

Last year the International Court of Justice (ICJ) marked its seventieth anniversary, and in the most recent issue of the Leiden Journal of International Law, Hugh Thirlway recognized this milestone with a look back through some key developments at the Court, focusing on the last few years. Here, we would like to undertake a retrospective of another sort, paying tribute to the ongoing connection between the Court and the Journal by taking a brief tour through the Journal's coverage of the Court over the years. It is hoped that this retrospective will not only bring back some fond memories but also – by viewing this material as a whole, and pointing out certain gaps in the Journal’s coverage of the Court's work – stimulate future analyses.

It has to date not been examined in-depth what correlative rights and obligations the breach of an erga omnes obligation or an erga omnes right may entail. In his Separate Opinion in the Gabčíkovo-Nagymaros case, Judge Weeramantry devotes one section to the legal consequences of the involvement of erga omnes obligations in inter partes judicial procedures. This editorial analyses the relevant parts of Judge Weeramantry's Separate Opinion and explores the impact it may have on future litigation involving erga omnes issues.

The UN High Level Panel Report, published in December, takes a comprehensive approach and is very frank in analysing the threats to international peace and security and their rootcauses. Its analysis and recommendations range from economic and social challenges to the use of force. This article discusses in particular the role and tasks that the High Level Panel envisages for the Security Council in light of the threats and challenges it identified. With the events of 11 September 2001 as the pivotal moment in history, the Panel nevertheless does not recommend or insist on fundamental changes of international legal paradigms, including in the (collective) use of force. The Panel's focus on reform of Security Council composition instead of the system that it operates neglects the problems with the latter and the impossibility of achieving the former.

This article considers the work of John Dugard in the field of human rights and international law and the impact thereof on the South African legal landscape. After tracing the importance of Dugard's early work in South Africa in the fields of legal philosophy, human rights, and international law, the article turns to consider the later achievements in Dugard's prestigious career. The author highlights the numerous cases in which Dugard appeared as counsel before the South African courts, and considers the impact that Dugard had on the drafting of the South African Constitution in relation to international law and its use in interpreting the South African Bill of Rights. The final section of the article considers the shameful failure of the South African government to support Dugard in his bid to be appointed as a judge of the International Court of Justice. The author concludes that notwithstanding the fact that the government has not accorded him the recognition he deserves, Dugard's pioneering human rights work continues unabated in his various positions, including in his role as the UN Special Rapporteur on human rights abuses in occupied Palestine.

This paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence – coherence at the level of abstract terms and phrases. It is the argument of this paper that this presupposition is not warranted, and that the understanding of rules cannot be thus separated. An alternative model of the understanding of legal language is developed on the basis of the work of Bernard Jackson and Geoffrey Samuel. This is further supplemented by the approach to the study of institutional contexts in the recent work of Robert Summers and John Bell. Together, these resources can lead to the analysis of the deep coherence of the international legal order, that being one that prioritizes not the unity of that order, but its responsiveness. The ideal of responsive law is elaborated upon by reference to the work of Philip Selznick and Philippe Nonet. Finally, a different agenda for the ILC is offered on the basis of the methodology of deep coherence. The upshot is that the paper calls for a reorientation of international legal theory, away from concerns about ‘the law itself’ and towards an engagement with the responsiveness of legal work performed in international legal institutions.

While the most important feature of the judgment given by the International Court of Justice in the LaGrand case is probably the conclusion that provisional measures indicated by the Court are binding, the decision is not without significance in the field of diplomatic protection.

The principle of complementarity is one the cardinal features of the architecture of the Rome Statute. Complementarity provides not only a forum to advocate overlapping competencies and litigate jurisdictional disputes over admissibility (e.g. Articles 17 and 19), but marks the foundation of the Statute as a multidimensional system of justice (e.g. Preamble, Article 1). This topic has been a focus of attention of the Court since its very inception. When taking office, the Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, qualified complementarity as one of the key factors for the successful operation of the Court, noting that ‘the absence of trials led by [the] Court as a consequence of the regular functioning of national institutions would be a major success’. As of 2003, the Office of the Prosecutor (OTP) has developed guidelines and principles on complementarity in order to clarify its theoretical underpinnings and operational features.

The International Criminal Tribunal for the former Yugoslavia (ICTY) is specifically charged in its Statute with the protection of victims and witnesses. This mandatory consideration is also reflected in its Rules of Procedure and Evidence (‘the Rules’). As a newly created international judicial organization, the 18 months since the very first decision granting protective measures for victims and witnesses was issued have been highly influential in identifying and laying down the basic principles upon which such protection may be granted within the context of the unique legal framework of the ICTY. The completion of the first trial has enabled the ICTY to put those principles into practice and evaluate them over a six-month period. This article will focus mainly on the experiences gained from the Tadić trial, with reference to other cases for completeness.

The third decision of the House of Lords in the Pinochet matter is significant, because the House of Lords upheld the majority view taken in the first decision: heads of state can, under certain circumstances, be held responsible for gross violations of human rights in the criminal courts of a foreign country. The decision is based on three main pillars. The Lords had, first, to clarify what constitutes an extradition crime under the Extradition Act 1989; second, to construct torture as an international crime; and, finally, to reject the plea of immunity of a former head of state in the context of the international crime of torture.

Two additional agreements have been concluded on the enforcement of sentences of the International Criminal Tribunal for the former Yugoslavia (ICTY). On 25 February 2000, an agreement was concluded between the Government of the French Republic and the United Nations on the enforcement of sentences of the ICTY. Thus, France thereby became the first permanent member of the Security Council to conclude such an agreement. A month later, on 28 March 2000, another agreement was concluded between the Kingdom of Spain and the United Nations. Both these agreements will enter into force upon notification to the United Nations by the respective states that the necessary national legal requirements have been met. Previously, agreements have been concluded with the following states: Italy, Finland, Norway, Sweden and Austria.

With the black letter law of the UN Charter denying states to unilaterally intervene in third states on humanitarian grounds, this article tries to project a picture of the moral controversy of humanitarian intervention as a balance for order and justice. The author argues that some post-cold war armed interventions may be taken as evidence of an emerging rule of international law outside the UN Charter system allowing the use of unilateral humanitarian intervention to keep a third state from committing large-scale human rights violations on its own territory. However, in the absence of prior authorization from the relevant UN organs, it is necessary to address concerns of possible abuse and manipulations of such an emerging rule. The article includes recommendations to this end.

To go to war for an idea, if the war is aggressive, not defensive, is as criminal as to go to war for territory or revenue; for it is as little justifiable to force our ideas on other people, as to compel them to submit to our will in any other respect. But there assuredly are cases in which it is allowable to go to war, without having been ourselves attacked, or threatened with attack; and it is very important that nations should make up their minds in time, as to what these cases are.John Stuart Mill, A Few Words on Non-Intervention (1859)

Silence has often been studied in international law as a mechanism tied to passivity and oppression. In this study, I propose an exploration of other ontologies of silence by unravelling its possibilities as an active mechanism, namely: (i) a tool for resistance; and (ii) a linguistic device for managing disagreement. For this, I use as an exploratory ground the construction of a non-definition of gender for the crime of persecution in international criminal law (ICL). Analysing the Rome Statute negotiations, I examine how gender-conservative actors successfully opposed the proposal for a non-definition of gender, arguing that such a solution would harm the clarity required by the principle of legality in ICL. By establishing that legal rules must be clear, specific, and cohesive, I argue that the legality principle imposes a burden of speech upon non-state voices in ICL, one that encircles them within a subalternity scheme where speech is demanded but can only be performed or mediated by states. Exploring the negotiations of the Convention on Crimes Against Humanity draft, I examine how the non-definition of gender allowed feminist and queer activists to resist such a burden of speech for the conceptualization of gender. Simultaneously, silence also provided an opportunity for International Law Commission members to propose a draft that avoids cacophony around a contentious term. By reflecting on the active roles of silence, this study contributes to new modes of analysing resistance to dominant modes of legal discourse, as well as exploring dynamics of order(ing) in international law-making.

The Statutes of the ICTY and ICTR provide for the review of final judgments upon the discovery of a ‘new fact’ that could have affected the judgments. The Appeals Chambers of the two Tribunals interpret the term ‘new fact’ to mean new information related to a matter that was not at issue during the original trial, as opposed to simply meaning new information of a factual nature. The article argues that this interpretation of ‘new fact’ creates a risk that review will be denied on formalistic grounds even in situations where principles of justice would make review plainly warranted. The article proposes several ways in which the Appeals Chambers could alter their case law to ensure against such injustice. Finally, the article considers the implications of this issue for other international criminal tribunals.