The International Criminal Court (ICC) is surrounded by controversies and criticisms. This article highlights some patterns in the arguments, showing that many plausible criticisms reflect inescapable dyads. For any position that Court could take, one or more powerful criticisms can inevitably be advanced. The tension can be obscured because shared terms are often recruited for opposite meanings. Awareness of these patterns can (i) provide a framework to better situate arguments, (ii) reveal the deeper complexity of the problems, and (iii) help us to evaluate and improve upon the arguments. Awareness of dyadic structures can lead to a debate that is more generous, as we acknowledge the difficulty and uncertainty of choosing among flawed options, yet also more rigorous, as we attempt to articulate and improve upon our frameworks of evaluation. The goal of this article is to encourage a better conversation that can generate better insights.

The ICC Statute sets up a system for enforcement whereby the Court's decisions are to be effected by domestic authorities. The article explores the implications of this institutional design in terms of the legal tools at the Court's disposal and the extent to which the ICC can adjudicate issues related to state co-operation. At the same time, it examines the responsibilities assumed by all states parties under the Statute to secure compliance, including in situations where the requested national authorities are unwilling or unable to co-operate. It suggests that to be sucessful, the co-operation regime under the ICC Statute will require a dynamic set of interactions between the individual state and the collective.

This paper draws on the insights of Marxism to outline a critical alternative course on public international law. It explains inter alia the changes in the doctrines and rules of international law by linking them to extra-textual realities. It contends that the character of contemporary international law is being transformed from bourgeois democratic international law to a bourgeois imperial international law. It sustains this conclusion by looking at certain developments in the world of international law in recent years. However, the outline offered is not exhaustive in terms of either the subjects considered or their analysis.

This article illustrates how the ECCC is struggling to combine successfully two distinct institutional responses to crimes, by being both a criminal tribunal, with its formal rules of procedure and focus on retributive justice, and a quasi-truth and reconciliation commission, with its more flexible approach to participatory rights for victims and focus on reconciliation. The article highlights the advantages and challenges of adopting a ‘two for the price of one’ model within the Cambodian context and uses the experiences of the ECCC to underscore important lessons for future ad hoc and hybrid courts.

This essay seeks to sketch and evaluate international law scholarship in post-colonial India in the period 1947–2007. The exercise is undertaken to assess how Indian scholarship has coped with the dual life of international law: the fact that it is both an instrument of domination and possible emancipation. It is contended that while the dominant approach of formalist dualism, which critiques colonial international law but embraces the narrative of progress in the present, has made a seminal contribution to the world of international law, in particular the first articulation of Third World approaches to international law (TWAIL), it has not adequately addressed deep systemic structures that underlie contemporary international law. It is argued that this task is performed more effectively by a critical dualist approach that problematizes the structure, ideology, and practices of global capitalism. The essay concludes by reflecting on the future tasks of Indian scholarship.

In his opening lecture of the LL.M. Program in Public International Law at Leiden University, Judge Buergenthal examines whether the recent phenomenon of the proliferation of international tribunals is to be welcomed or regretted by those who are interested in seeing international law become a vibrant and politically relevant legal system. He addresses questions relating to their interaction and the delimitation of their respective roles.

The article presents an anthropological analysis of witness testimony about ritual murder, cannibalism, and secret societies in the trial against Charles Taylor in The Hague. In the first part, a comprehensive in-depth analysis of the testimony of one prosecution witness serves as a case study to illustrate the difficulties of assessing the veracity of witness statements on alleged atrocities linked to African religious and spiritual beliefs. The second part contextualizes the testimony heard in the trial against Charles Taylor by drawing on historical sources and the academic literature on West Africa. The analysis reveals striking parallels between the prosecution narrative and colonial representations of Africa as a mysterious and savage place.

Establishing the pattern of crime is fundamental for the successful investigation of international crimes (genocide, war crimes, and crimes against humanity). A pattern of crime is the aggregate of multiple incidents that share common features related to the victims, the perpetrators, and the modus operandi. Pattern evidence and analysis have been used successfully, mainly in the investigation of large-scale killings, destruction, and displacement; the use for sexual violence charges has been remarkably more limited. There is a need to overcome this gap by setting proper methods of data collection and analysis. At the level of evidence collection, under-reporting should be addressed through victimization surveys or secondary analysis of data available from different sources. At the level of analysis, the available evidence needs to be subject to impartial examination beyond the pre-conceptions of the conflict parties and advocacy groups, in compliance with scientific standards for quantitative, qualitative, and GIS (Geographic Information Systems) methods. Reviewing the different investigative experiences and jurisprudence will help to set the right methodology and contribute most efficiently to putting an end to the impunity regarding sexual crimes.

Until the emergence of the Convention on Biological Diversity in 1992 and the FAO Treaty on Plant Genetic Resources in 2001, opinion had hardened in some quarters that the principle of a common heritage of mankind regulated international transfer of plant genetic resources. By a historical analysis of customary international law in the colonial age and the recent pedigree of the principle of common heritage, this article points out the fallacies in such arguments and contends that plants have always been subject to various national jurisdictions. It has to be conceded, however, that contemporary developments in the field of international law relating to plant genetic resources foretell the emergence of a regime of multilateral relationships governing access to plant genetic resources. If it is to depart from its unfortunate history, such a regime of multilateral co-operation would have to pay serious regard to the issue of equitable access to and sustainable use of plant genetic resources.

One year after the invasion of Iraq, what lessons are to be drawn about the role of the Security Council in peace and security? This article looks at the issue by considering the nature of the Security Council in its dual functions as a forum for diplomacy and a corporate body for executive action. The idea of the Security Council's possessing a separate will in its executive function is developed. The article stresses the importance for the authority of the Council of that organ expressing its will within the legal parameters of the Charter and international law. It is argued that similar legal parameters are also applicable to the permanent members in exercising their power of veto and in interpreting resolutions. Further, when interpreting resolutions member states should not misconstrue the will of the Council. The Iraq crisis of 2003 raised all these issues and, further, necessitated a reappraisal of the rules of international law governing the use of force. This article considers the relationship between diminution in Council authority and erosion of the rules of the UN Charter governing the threat or use of force in international relations.

The argument against factoring peace processes into the discretion of the ICC Prosecutor is based on the premise that international law can be decontextualized from international politics and that in doing so will have superior consequences in terms of deterring atrocity and in consolidating peace. This view is at odds with the history of international criminal tribunals and the cases currently under review by the ICC. Those episodes demonstrate that the effectiveness of international criminal justice and its impact on peace are shaped and constrained by the political strategies of conflict resolution used by states and intergovernmental organizations to end criminal violence. Hence the Prosecutor should construe his discretion broadly to take account of the political context in which international criminal law has to operate.

The crime of aggression will be included within the jurisdiction of the International Criminal Court once agreement is reached on its definition and the conditions for exercising jurisdiction. The author discusses the ultimately unsuccessful efforts of the now concluded Preparatory Commission for the Court to complete the drafting. He suggests how the mental and material elements of the offense might be structured consistently with other offenses in the Statute of the Court. Probably the biggest intellectual hurdle is that of “conditions.” A number of states, notably the Permanent Members of the Security Council, insist that there must be a predetermination of an act of aggression by a state made by the Security Council. Others believe that the predetermination can be made by the General Assembly or the International Court of Justice. Yet others claim that all decisions must be made by the International Criminal Court. The political choice between these positions has still to be made.

International law is a projection of the imagination and professional identity of the practitioners in the field. Take a diligent, somewhat idealistic Delegate X who participates in a major event in international law: the negotiations on the Statute of the International Criminal Court (ICC), starting with the Ad Hoc Committee in 1995, continuing in the Preparatory Committee and culminating at the Diplomatic Conference in Rome in 1998. What takes place when the ambitious ‘world public opinion’ expectations for international law are supposed to be made everyday life by the delegates? How does X, a single committed person, play his or her role as a tiny part of the global reform machinery? What is the anatomy of the engagement: professionalism and a comfortable exit from the intolerable world of human suffering and injustice? What kind of mechanisms govern the vertiginous scenes of genocide, champagne and flirt? Do the everyday worlds of violence and of welfare touch each other only slightly, in the name of international law, just in order to disappear again in their own, irresistible orbits?

The traditional vision that international courts and tribunals do ‘good’ or create a better world through law is increasingly under question. International criminal justice started largely as a ‘faith’-based project, but is increasingly criticized in light of its actual record and impact. This essay examines this journey and, in particular, the role of ‘faith’ and ‘fact’ in the treatment and assessment of international criminal courts, through four core themes (‘effectiveness’, ‘fairness’, ‘fact-finding’, and legacy’) addressed in André Gide's version of the parable of The Return of the Prodigal Son. It argues that, in its ‘homecoming’, international criminal justice would benefit from a greater degree of realism by openly accepting its limitations and embracing its expressivist function. It cautions at the same time against exclusively quantitative understandings of impact, arguing that the power of international courts and tribunals lies not so much in their quantitative record as in their role in setting a moral or legal example or shaping discourse. It concludes that a better match between ‘idealism’ and ‘realism’ requires greater attention to the interplay between ‘international’, ‘domestic’, and ‘local’ responses to conflict, as well as recognition of their legitimate differences.

In the case concerning Jurisdictional Immunities of the State, the ICJ held that rules of jus cogens did not automatically displace hierarchically lower rules of state immunity. The Court's decision was based on the rationale that there was no conflict between these rules as the former were substantive rules while the latter were procedural in character. The ‘substantive–procedural’ distinction has been heavily criticized in the literature. Much of the criticism seems to be motivated by the unwanted result of the distinction, namely de facto impunity for the most serious human rights violations. This paper takes a step back from the alleged antinomy of human rights and state immunity and broadens the picture by looking at the relationship between substantive and procedural rules more generally. It is shown that substantive rules of a jus cogens character generally leave procedural rules unaffected and, in particular, do not automatically override such rules. Substantive rules may, however, have a limited effect upon the interpretation and application of procedural rules. It is argued that the ‘substantive–procedural’ distinction is well established in international law and makes eminent sense even when substantive rules of jus cogens and procedural rules of immunity are involved.

This article analyses the World Bank’s environmental and social Safeguards against the backdrop of changing paradigms of global legal order. In January 2017, a new ‘Environmental and Social Framework’ (ESF) entered into force and replaced older ‘Safeguard Policies’ that had incrementally emerged since the 1980s in response to harmful impacts of investment projects financed by the Bank. The Safeguards reform epitomizes the changing structures and geopolitical shifts that shape international law in the twenty-first century and provides a fascinating looking glass on the evolution of global order since the end of the cold war. In this perspective, we see the first generation of Safeguards, introduced since the late 1980s, as an element of incremental legalization in the emerging global governance regime, a regime characterized by unipolar multilateralism and geopolitical dominance of ‘the West’. The 2016 reform not only reflects the increased politicization of global governance by civil society but also the emergence of a more competitive multilateralism, characterized by counter-institutionalization on the part of emerging powers like China. A comparison of the old and new Safeguards thus allows us to analyse different forms of contestation and resulting normative evolution in the key area of global governance of development and finance.

The long life of Alejandro Álvarez, the most renowned Latin American international legal scholar of the twentieth century, was dedicated to the persistent promotion of projects of a continental (American), regional (Latin American), and universal international law. This article undertakes an overview of his oeuvre through a reading of Álvarez's work as coming from a criollo (or Creole) and social legal consciousness presented through the three consistent tropes of renewal, reform, and rupture. Although much of Álvarez's work has been forgotten, during his lifetime he generated profound admiration and even a school of thought, but also rejection and ridicule on both sides of the Atlantic. Álvarez may be considered a scholar from the ‘periphery’ because of his country of origin and regionalist claims, but his life and works show that he was also at the forefront of the leading issues and institutions of international law in the first half of the twentieth century.

All crimes of genocide have a common structure: There must be an actus reus, a corresponding mens rea and, in addition, a second subjective element, the “intent to destroy, in whole or in part, a […] group as such.” This so called “genocidal intent,” is characterized by the fact that responsibility for completed genocide does not depend on the result, the perpetrator intended to achieve. The threshold of this intent is not higher than for the mens rea described in Article 30 of the Rome Statute; in particular, no special quality of the volitive side of this intent is required. Dolus eventualis, therefore, is sufficient to commit the actus reus and to have, in addition, the particular “intent to destroy […].” An inherent, additional and independent, contexual criterion, as proposed in The Draft Elements of Crimes is neither admissible nor advisable to limit the punishability of genocide or the jurisdiction of the Court for such crimes.

Having identified the differences between the concept of legality and the much more complex concept of legitimacy, the author scrutinizes the legality and the legitimacy of the existing international criminal tribunals. Their legality has been put in doubt only concerning the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Tribunal for Lebanon (STL), but the criticisms have been or could be overcome. Assessing the legitimacy of these tribunals is instead a more difficult task. In fact, misgivings have been voiced essentially concerning the legitimacy of the ICTY and the STL, but not the International Criminal Court (ICC) and the other international criminal courts. The legitimacy of the STL in particular deserves to be discussed: even assuming that the STL initially lacked some forms of legitimacy, it could achieve it – or confirm it – through its ‘performance legitimacy’. The author then suggests what the realistic prospects for international criminal justice are. Convinced as he is that it is destined to flourish even more, he tries to identify the paths it is likely to take in future years.

This essay critically examines T. O. Elias's international legal scholarship, especially in so far as he sought to reclaim, or claim, a place in international legal history for Africa. Having found that Africa contributed to the formation of international law, Elias argued in favour of reforming its rules so that they could serve the interests of the newly independent African states. In this respect he influenced many contemporary international lawyers in Africa and elsewhere. In particular, his singling out of sovereignty as a barrier to reforming international law is shared by generations of international legal scholars who have criticized states for placing too high a premium on their sovereignty, thereby placing insuperable barriers to their acceptance of egalitarian goals, expressed by, for example, the international bill of human rights. The essay also contrasts Elias to scholars of international law who took the colonial legacy of international law as a barrier to reforming it so that it was consistent with the interests of so-called post-colonial African states.