This article addresses how and why liberal democratic constitutions, such as the United States, have come to recognise the tension between liberal values of equal liberty and patriarchy in three areas – contraception, abortion, and gay/lesbian sex acts – and to resolve them in the way in which they have: by extending constitutional protection to these activities on the basis of a constitutional right to privacy. The article begins with some historical understanding of the background of the rise of patriarchy, and why the control of sexuality in general, and women's sexuality in particular, was so central to its aims. It then turns to how and why liberal constitutionalism has found these aims to be so problematic as a basis for law.

That a ‘secular’ government should not sponsor religious expressions may seem almost like an analytic truth. And yet, in practice, liberal democratic governments often support religious symbols and expressions. So, are governments that purport to be secular and yet support religious symbols or expressions just being hypocritical, or incoherent? This article, written for a conference on ‘Freedom from Religion’ held in Tel Aviv in December 2011, considers three different versions of secularity – what I call the ‘classical’, ‘comprehensive’ and ‘agnostic’ versions – and concludes that none of these versions forbids religious expressions by ‘secular’ governments.

This article seeks to give an impression of the way in which domestic courts are contributing to the development of international criminal law. Have they predominantly followed the case law of international tribunals and, by doing so, have they corroborated those standards? Or have they rather ventured in new directions and, as a consequence, been involved in a creative process, establishing and refining international criminal law?

Four different approaches, reflecting the position of domestic courts vis à vis the standards and case law of international criminal tribunals, are identified and analysed: strict compliance, antagonism, judicial construction, and ‘casuistry’. The author concludes that the most important contribution of domestic courts to the development of international criminal law consists of further interpretation of open-ended norms. While this is obviously inherent in the process of ‘judicial creativity’, the feature is reinforced by the non-hierarchical nature of international criminal law. As a consequence, international criminal tribunals lack the power and authority to impose their interpretation of international criminal law on domestic courts. The risk of fragmentation is mitigated, however, by the nature of criminal law, which requires strict and clear standards, and by the increasing interactions between courts at different levels.

The advent of the principle of complementarity under the Statute of the International Criminal Court has shifted the focus on prosecuting international crimes to the national courts. One of the potential difficulties in this shift is that there is no uniform standard for incorporating and applying international legal norms in the national systems. This article examines how two very distinct national courts – the state Court of Bosnia and Herzegovina and the military courts of the Democratic Republic of Congo – have implemented and applied international legal norms. Despite the differences between these particular courts in the methods of implementation and application, international courts have had an impact on the national systems that have helped the latter to follow international criminal legal norms.

Article 215 of the Constitution of the Democratic Republic of Congo (DRC) is the entry point for international law into the DRC legal complex. It provides that international treaties and agreements duly ratified by the state predominate over Acts of Parliament. Cases and studies involving the direct effect or self-executing norms of international law in domestic cases are rare in the DRC. The correct ways of applying Article 215 of the Constitution and international law in domestic cases have not yet been authoritatively settled. The basic dilemma is whether courts should read the provisions of relevant international treaties into disputed provisions of DRC laws or read the disputed provisions in the light of the relevant treaty provisions.

Using as a case study the emerging practice of DRC military courts of directly applying international criminal law in domestic cases, the article argues that carelessly cutting and pasting formulations found in international treaties into the texts of applicable municipal laws infringes state sovereignty. Instead, the article proposes a strategy that would avoid unpleasant friction between international criminal law and municipal law, while encouraging cultural pluralism and the judicious intervention of international law in municipal law.

The principle of proportionality is one of the core principles of international humanitarian law. The principle is not easy to apply on the battlefield, but is even harder to apply retrospectively, in the courtroom. This article discusses the challenges in applying the principle during international criminal trials. It discusses the principle itself, followed by an explanation of the general challenges of dealing with violations of international humanitarian law, and more specifically the rules related to the conduct of hostilities, during war crime trials. The way in which the principle has been used before the International Criminal Tribunal for the former Yugoslavia is examined, including an in-depth discussion of the recent Gotovina case. The second part consists of an evaluation of Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court, and discusses the difficulties the International Criminal Court would face in cases dealing with violations of the principle of proportionality.