This editorial explores some methodological difficulties that might be faced by the practice of the critique of international criminal law (ICL). It more particularly explores what it might mean to do an ‘internal’ critique of ICL, both on a disciplinary level and an intra-disciplinary level. The editorial also addresses two important issues: (i) the ambiguities of the normative agendas of critical legal scholars; and (ii) the difficulty of dialogue between critical legal scholars and positivists. The editorial concludes with the fact that while disciplinary dialogue might not always be possible, it will always take place on a personal, more complex level, in the Leiden Journal of International Law (LJIL) as elsewhere.

This article examines the question of state succession to bilateral treaties. It analyses the work of the International Law Commission undertaken in the 1970s and criticizes the solutions it has adopted in the 1978 Vienna Convention on Succession of States in Respect of Treaties for different types of state succession. I will argue that it is incoherent for the ILC to apply, on the one hand, the solution of automatic continuity for bilateral treaties in the context of secession and dissolution of states, while adopting, on the other hand, the solution of tabula rasa for Newly Independent States. In any event, it is plainly unjustifiable to apply the principle of automatic continuity to bilateral treaties. Thus, while the tabula rasa principle was adopted by the ILC for multilateral treaties to protect Newly Independent States’ right to self-determination, the same solution was chosen for bilateral treaties for different reasons. The rule of tabula rasa was adopted because of the particular nature of bilateral treaties and the basic requirement that the other party to an original treaty must consent to the continuation of that treaty with a Newly Independent State. There are simply no logical reasons as to why the tabula rasa principle adopted for Newly Independent States should not also find application for all new states. Bilateral treaties do not automatically continue to be in force as of the date of succession unless both states that are implicated explicitly (or tacitly) agree to such a continuation.

The judiciary’s counter-majoritarian role in the realm of national security is of paramount importance. By and large the Israel Supreme Court has taken cognizance of this truism and has imposed significant procedural and substantive restrictions on the Israeli military authorities, relying more and more on public international law. Yet when faced with house demolition measures, it has adopted a different stance, preferring to conduct a judicial review which is devoid of any meaningful scrutiny of the measures according to international law. The article attempts to ascertain the reasons for the Court's different judicial position, by advancing, inter alia, legal, historical, socio-political, and personal reasons, reasons relating to the nature of the petitioners, as well as those pertaining to the intertwined concepts of status quo bias, omission bias, and loss aversion. The findings of the case study may be relevant to other courts, in other countries. When faced with deterrent measures that are employed at times of severe security threats and that are strongly supported by the political establishment and by the public, courts may find it difficult to perform a counter-majoritarian role and to abide by their own judicial doctrines and principles.

From a due process perspective, the essential problem with the UN Security Council's targeted sanctions regime is the persistent lack of sufficient access to confidential material relied upon for the designation of targeted individuals. Despite the Security Council's efforts to amend the procedures of the sanctions regime, it is highly unlikely that this deficiency can ever be remedied within its present top-down structure. Therefore, this article proposes to decentralize the regime's designation procedure, to mitigate the problem of being unable to challenge or review confidential information and evidence, which underlies an individual's designation. Such an amendment would entail that the designation of a particular individual and the possible subsequent judicial review procedure would take place domestically, prior to a universal blacklisting by the UN Sanctions Committee. As a consequence, any confidential material relied upon could stay within the designating state, and would be shared only with courts and possibly special security-cleared advocates, within that domestic legal order. This would make it more acceptable for the relevant authorities to make such information available.

The judgment of the International Court of Justice (ICJ) of 11 November 2013, interpreting its 1962 judgment in the case concerning the Temple of Preah Vihear, inspires a reconsideration of the role of interpretation proceedings pursuant to Article 60 of the Statute of the Court. In particular, it invites us to take a closer look at the role and scope of the principle of res judicata in public international law in general and as considered in the case law of the Court in particular. This contribution reveals the competing concepts of the principle in interpretation and consecutive original contentious proceedings, and promotes instead a uniform concept that avoids the conflict inherent in current approaches.

Section 1 introduces Article 60 of the ICJ Statute (section 1.1.) and thereinafter views interpretation proceedings before the Court in light of the Court's case law, in particular its 2013 interpretation judgment in the Temple case (section 1.2.). Section 2 constitutes the heart of the analysis and discusses what will be identified as the competing concepts of res judicata. Section 2.1. presents the functions, concepts, and case law of res judicata in public international law in general, whereas section 2.2. focuses specifically on the case law of the ICJ and the Permanent Court of International Justice (PCIJ) in this regard. Finally, section 2.3. concludes this study by setting out the approach that the author regards as appropriate to reconcile the competing concepts of res judicata.

The UN Security Council's involvement in the area of international criminal justice raises concerns about judicial independence. Of primary concern in this study is the degree to which this political organ has come to determine and restrict jurisdiction of international criminal tribunals, with the effect of excluding cases involving alleged grave crimes by actors whose presence in situations of which the Council is seized is supported by its permanent members. This control, it will be argued, undermines the basic conditions for a sound administration of justice, as it impedes these tribunals from selecting the cases that may come before them in accordance with respect for human rights and the rule of law. More specifically, restrictions imposed by political organs, leading to unjustified unequal treatment before the law and the courts of perpetrators and victims of grave crime in a given situation, are contrary to principles of equality and non-discrimination. A theory of international judicial independence should therefore extend to a consideration of the legality of such restrictions and acknowledge it as an essential requirement of independence.

Since the post-Second World War tribunals, only a few scholars have attempted to draw a definitional distinction between international and national criminal courts. Remarkable exceptions include Robert Woetzel, who in 1962 categorized criminal courts according to ‘the involvement of the international community’, and Sarah Williams, who 50 years later relied on the same factor in her definitions of ‘hybrid’ and ‘internationalized’ criminal tribunals.

Through examples of rulings by the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, this article will demonstrate that ‘the involvement of the international community’ is at best an unhelpful criterion when it comes to resolving questions, e.g. regarding the immunity of state officials and the relevance of domestic law, that require a determination of the legal system in which the court operates.

Instead, it is argued that only criminal tribunals deriving their authority from international law should be labelled ‘international’, while the term ‘national criminal court’ should apply to tribunals set up under national law. This terminology would underline that issues concerning jurisdiction and applicable law must be settled according to each court's constituent document and other relevant sources of law, depending on the legal system to which this document belongs.

The jurisdiction of the International Criminal Court has remained largely uncontested during the first 10 years of its operation. Today, the jurisdictional cooling-off period seems to have run its course. The Prosecutor has opened the first Article 15 investigations and prosecutions in Kenya. The defence has been active in challenging the jurisdiction of the Court. Judges at the pre-trial stage have taken a more inquisitive approach to jurisdictional assessments. This awakening has led to the identification of novel legal issues. One of them is the applicable burden and standard of proof for defence challenges to jurisdiction. So far, this issue has been addressed largely through interpretation of the Statute. The Court's first decisions seem to fluctuate significantly on this point. From pronouncements accepting that such burden and standard do exist and seeking to articulate them, to rulings implying that they do not exist altogether, the Court's case law reveals a measure of inconsistency and a lack of reasoning. This article seeks to expose the different positions assumed on the matter, typically as a result of the judges’ efforts to balance procedural efficiency and fair trial considerations. In doing so, we will reflect critically on the causes and effects of the current state of the law and propose a reorientation of the case law through the use of other relevant international jurisprudence.