International law and Marxian theory both emanate from nineteenth-century progressivism. Although Marx had no interest in international law, many aspects of his work are very relevant for it. Where (modern) international law became secular and focused on states and human rights, (early) Marxian theory would claim that its secularization did not go far enough. Instead, statehood and individual rights appear as forms of political theology. Today, deconstruction carries on some of the heritage of Marxian dialectics. The task, however, is to move from doctrinal critique to progressive practice. In this, the theory of hegemony provides the best available account of how that can be undertaken without losing the ambition of the law's universality.

The watershed of the US-led invasion of Iraq in 2003 calls for new approaches to the theory of international law. Hardt and Negri's Empire is a focal point for the broadly postmodernist New Approaches to International Law, which celebrates an infinite variety of resistances to oppressive structures. This book is itself in need of deconstruction. Post-structuralism must give way to a framework of analysis that accepts a place for agency, and with it, responsibility, alongside social structures. Contemporary Marxist critique of international relations, coming mainly from the field of geopolitical international history, can combine with social democratic critique of the international economic system to attach firm responsibility for the material economic woes of international society to the United States. The militarism of US foreign policy is, in a Marxist critique, primarily a function of US economic contradictions. Law plays a role here as a coercive instrument of the state. This state is capitalist in operating globally a system of accumulation by dispossession. Where necessary it reinforces its operations with violence. However, international law, as an expression of the equality of nations, especially in their social needs, is honoured in the breach by such dispossession and violence.

The New Stream of critical international legal theory has been a welcome corrective to theory-blindness in international law, but it is limited by its philosophical idealism. The materialist philosophy of Marxism, by reference to political–economic contexts and conflicts, can better explain many of the New Stream's insights. The pioneering jurisprudence of Evgenii Pashukanis shows that many ‘traditional’ Marxist theories of law are limited and limiting. A reformulation of Pashukanis's ‘commodity-form’ theory shows that contra claims that the rule of law is characterized by peaceful coexistence, the unequal political violence of imperialism is intrinsic to the international system and to international law.

The trials at Indonesia's Ad Hoc Court for Human Rights in East Timor have been widely condemned. ‘Sham’ and ‘show trial’ are the terms frequently used to describe the process, yet to date there has been little substantive assessment that adequately explains or documents the process. This article offers a detailed assessment of the first three trials at the court, namely that of a former governor of East Timor (Abilio Soares), a former police chief of East Timor (Timbul Silaen), and five members of the military, police, and civil administration accused of responsibility for the Suai church massacre. In 2000, the international community gave a shamed nation the opportunity to redeem its honour and reputation by bringing to justice those of its nationals responsible for the destruction of East Timor in a process that met international standards. But the inescapable conclusion for the author is that the cases of Abilio Soares, Timbul Silaen, and the Suai church massacre were not conducted in a way that was consistent with an intent to bring to justice persons responsible for gross violations of human rights in East Timor.

In the general debate prior to the onset of war in Iraq, we made public our view, in a letter to the Guardian newspaper, that the war could be justified neither by reference to earlier UN Security Council resolutions nor by way of the doctrine of self-defence. In this article we reflect on some of the anxieties we experienced both before and after that ‘intervention’ in terms of the vision of international law we might unwillingly promote, and in terms of the role we appeared to assume for ourselves, and our professional colleagues, in public debate. Despite our efforts to prevent legal issues from dominating, we came to be viewed as the defenders of an anti-hegemonic legality – resisting the erosion by an opportunistic coalition of the principles of sovereignty, non-intervention, and collective security. We were concerned that this made us appear champions of international law in a way with which none of us was entirely comfortable. On the other hand, in contesting that, we seemed in danger of valorising a politics of expertise that gave international lawyers a privileged position within the debate. We reflect, then, on the consequences, intentional or otherwise, of our intervention, and explore the dilemmas associated with it. The problem with which we finally grapple is whether the relationship between critical scholarship and the techniques associated with it (anti-formalism, complexity, and indeterminacy) is such as to preclude strategic intervention in the effort to stop a war.

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.

Taking Edward Said's ‘orientalist’ thesis as a starting point, this piece considers the manner in which the ‘Orient’ has been transformed by the West into a zone wherein the dictates of international law need not hold. By giving voice to a number of cases – the regime of the Suez Canal, the creation of the state of Israel, aggression during the Lebanese and two gulf wars, UN-imposed Iraqi sanctions, and states of emergency in Syria and Egypt – it becomes evident that international law has been utilized in an instrumental manner. The outcome is a region which has been treated as the underclass of the international community, wherein international law has been, in fundamental instances, interpreted arbitrarily, applied selectively, and enforced punitively.

In July 2001 the Human Rights Committee of the International Covenant on Civil and Political Rights issued a General Comment on the possibility of member states derogating from human rights in case of emergency. Basing its analysis on the issue of limitation of fair trial rights during a state of emergency, this article suggests a critical analysis of the reasoning, rather than the conclusions, of the Committee. Expanding arguments developed by monitoring bodies of the American and European Conventions on Human Rights, the author suggests alternative reasoning according to which the right to a fair trial is inalienable. She argues in particular that this right constitutes a guarantee necessary to the effective enjoyment of all human rights, the preservation of legality in a democratic society, and the effectiveness of the principle of separation of powers.

Books and Articles in the Field of the Prevention and Peaceful Settlement of International Disputes (Winter 2003–4) Compiled by Ingrid KostConservator, Peace Palace Library, The Hague.