The difficulty in identifying the contours of the international regulation of the use of force is not merely the product of the highly politicized character of this area of international law, let alone of the divide between theory and practice. This paper submits that the problem rather lies in the fact that the interpretive community that produces the official discourse on the use of force is no longer able to agree on the way in which legal categories and interpretive techniques should be used to identify the applicable law. A reflexive consideration, by all actors involved, of the method by which the discourse on the use of force is formed seems to be necessary in order to establish or restore, within that interpretive community, the societal consensus needed to provide the international community with a common understanding of the extant regulatory framework and its scope of application.

This article uses the contested independence of Kosovo as an opportunity to re-examine the theoretical imagery behind the concept of self-determination, and then confront those findings with the more recent approaches to polity formation from other theoretical genres: normative theories of secession, on the one hand, and the global governance approach to self-determination, on the other. What emerges from the encounter between these bodies of thought is not a new interpretation, or a theory of self-determination and its relationship to uti possidetis, but rather a plea for an approach to polity formation which is simultaneously critical and prudential. That is, an approach which would accept the role of external actors as inevitable, but goes further and unmasks them as complicit in labelling certain projects as ‘civic’ and ‘multicultural’ on the one hand and ‘ethno-nationalist’ on the other. Equally, the proposed approach reveals the ever-present aspiration to unanimity as a concealed ideal of polity formation, shared by both the ‘civic’ and the ‘ethnic’ variants of self-determination. Finally, this approach to polity formation sketches the contours of an alternative, thin vision of a political community – one not wearing the badge of peoplehood – one glued together not by normative imperatives of participation and solidarity, but rather by the acknowledgement of geopolitical fiat.

This article was prompted by the retirement of Dame Rosalyn Higgins as judge and president of the International Court of Justice in February 2009. It reviews her brilliant career as law professor, barrister, advocate before various international courts, and international arbitrator. The major part of the article deals with her role as judge and president of the ICJ and her impact on the elaboration and development of international law by the Court.

The International Criminal Court (ICC) has issued its third confirmation decision against Jean-Pierre Bemba Gombo,1 the former president of the rebel Mouvement de Libération du Congo (MLC) and commander in chief of its military wing, the Armée de Libération du Congo (ALC).2 The decision is, in principle, to be welcomed, since it constitutes a further consolidation of the ICC case law and breaks new ground in some important areas, for example the law of crimes against humanity (Art. 7 of the ICC Statute3)4 and command responsibility (Art. 28).5 From an outsider's perspective it also seems that the Chamber, on the basis of the available (disclosed) evidence, took the right decision when it changed the Prosecutor's liability from (co-)perpetration (Art. 25(3)(a)) to command responsibility. Yet there are some fine legal-technical points where the Chamber did not dig deep enough, incurred conceptual errors, or drew some illogical conclusions. These issues shall be discussed briefly here, not in a destructive spirit but to contribute constructively to the improvement of the future case law.

In Martić, the ICTY held that the term ‘civilian’ in the chapeau of crimes against humanity excludes persons hors de combat, but that such persons may still be victims of crimes against humanity. This paper analyses that holding and its applicability before the ICC. It observes that the holding may result in additional protection to prisoners of war, leave the group of victims of crimes against humanity undefined, and render the term ‘civilian’ in the chapeau nugatory. Some recommendations are offered in these regards.

This article considers the application of international human rights treaties or conventions to domestic law in common law countries and the historical differences in approach between some jurisdictions. It promotes the view that the judiciary of a country which has signed an international human rights treaty or convention may refer to such a treaty when interpreting domestic law, notwithstanding the fact that the treaty or convention has not been incorporated into domestic legislation. The article also suggests that international human rights treaties and conventions have a role in developing international criminal law and international humanitarian law. It cites the example of the decision that forced marriage is an inhumane act, a crime against humanity, by the Special Court of Sierra Leone, and gives the factual and jurisprudential background to that decision.

Sierra Leone experienced particularly heinous and widespread crimes against humanity and war crimes during its eleven years of civil war from 1991 to 2002. During the war, the civilian population was targeted by all the fighting factions. Civilians were captured, abducted, and held as slaves used for forced labour. The Special Court for Sierra Leone was established by the government of Sierra Leone and the United Nations in 2002, through Security Council Resolution 1315. It is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in Sierra Leone since 30 November 1996. The aim of this paper is to sketch out the extent to which the jurisprudence of the Special Court can serve as a model for efficient and effective administration of criminal justice nationally through the preservation of its legacy.

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.

On 11 December 2008 the UN General Assembly adopted a set of draft articles on the law of transboundary aquifers which had been prepared by the International Law Commission (ILC) between 2002 and August 2008. These draft articles are the first official instrument that lays down rules of international law for the management and protection of groundwater, which makes up 97 per cent of the Earth's freshwater resources, excluding the resources locked in polar ice. This article discusses the contribution of the draft articles to the development of international water law. It first provides some background on the importance of shared groundwater resources, then describes the ILC's work on transboundary aquifers, and finally assesses in detail the draft articles and the way ahead.

The awards on liability and damages for violations of international humanitarian law of the Eritrea-Ethiopia Claims Commission uncover both the extent of state responsibility for unlawful displacement and deportation of civilian population resulting from wrongful actions of belligerents under international law and the availability of remedies for victims of such violations. The Commission reached a number of important decisions based on government-to-government claims brought by Ethiopia and Eritrea for injuries, losses, and damage suffered by individuals and groups uprooted by the war. While these decisions bring to light the potential of international humanitarian law in addressing the plight of the displaced, they also expose the limitations of the tribunal's mandate and its interpretation of existing law. The aim of this essay is to analyse the case law of the Commission in the light of international law applicable to situations of displacement of civilians triggered by international armed conflicts, and evaluate the relevance of the Commission's jurisprudence for the development of the law in the field.

Progress in International Law, edited by Russ Miller and Rebecca Bratspies, is one of the most notable compiled volumes in the field of general international law for 2008. It merits the reader's attention for several reasons. First, it deals with a central mantra of internationalism, namely the Kantian idea that international law can be a catalyst for social progress on a global level. While progress is regularly used in international law writings as a slogan to accentuate diverse claims of renewalism, it is a notion that has received as such little attention in scholarship. In this sense, the book at hand responds to an important gap in the literature. Second, the editors have clearly devoted a lot of attention in the planning and production of the book to ensuring that the essays are meaningfully juxtaposed, complementary, and in dialogue with one another. Although this is an essential quality for any compiled volume, it is easier said than done, and this book has done reasonably well. The final product boasts some forty contributors and more than 900 pages of text, packed together in an attractive (but steeply priced) hardback edition by Martinus Nijhoff (Brill). Third, the book aspires to ‘survey the state of the contemporary legal order’ (p. 11). This is a broad and unusually ambitious scholarly project aimed at ‘cataloguing this generation's tangled international legal order’ and hoping ‘to map the current tendencies, theories, doctrine, and trends’ (p. 11). This last promise alone would have been sufficient to trigger anyone's interest in the book at the beginning of (what is perceived to be) a new era of internationalism.