The Israeli official policy of targeted killing has often been a subject of controversy and criticism. Although still applied by the state of Israel, this cruel practice was recently limited in a courageous decision handed down by the Israeli Supreme Court. The new restrictions on targeted killing represent an important step towards its criminalization. Despite this, the Court's interpretation of the international humanitarian law requirements is still too broad and there is a need for more restrictive safeguards. In addition, the current uncertainties of this field of law, replicated in the decision, exacerbate the problem further. The main difficulty, however, lies in the theoretical assumption that targeted killing is legal. This article proposes instead to view targeted killing as an exception to the presumption of protection of the civilian population. The authors review the recent trends in international humanitarian law in order to assess the impact of the Court's reasoning. Although this landmark case represents an important breakthrough, it will certainly not be the last word on targeted killing.

This quantitative study analyses the sentencing practice of the International Criminal Tribunal for the former Yugoslavia (ICTY). The sentencing process is only loosely regulated by the ICTY Statute, and consequently it is not clear how judges exercise their broad discretionary sentencing powers in practice. By analysing the existing case law, legal factors influencing the sentencing decisions are examined. The extent to which the selected factors predict sentence length is tested in a multiple regression analysis. The analysis suggests that the sentence can be to a large extent predicted by legal criteria. The number of offences and the rank of the offender are the strongest predictors of sentence length in the model.

The ICJ's Advisory Opinion adopted a very narrow approach to the question posed by the General Assembly, but its basic response – that Kosovo's declaration of independence did not violate general international law – was correct. While it might have been preferable if the Court had given more guidance regarding the contemporary scope of self-determination, neither supporters nor opponents of Kosovo's independence gained much from the opinion. No definitive conclusion about Kosovo's status can be drawn without agreement between Pristina and Belgrade, and outsiders should avoid prejudging or interfering in that outcome.

This article critically assesses the role of provisional measures indicated by the International Court of Justice in protecting populations during armed conflict situations and the legal consequences attached to the violation of such measures. A number of relevant cases, including the most recent Georgia v. Russia case, are dealt with. Provisional measures aimed at protecting populations affected by armed conflict have been increasingly requested in the last two decades by states finding themselves at a military disadvantage. Questions remain, however, with regard to the suitability of these incidental proceedings to deal with major political controversies resulting in armed conflict between states. That notwithstanding, it is submitted that although compliance with such orders of the Court remains unsatisfactory, in the long term provisional measures can eventually strengthen state compliance with commonly agreed international human rights and humanitarian law standards.

The principle of non-refoulement found in the UN Convention on the Status of Refugees has been widely regarded as the core element of the international refugee protection regime. However, in the recent era of restrictive external migration controls, its significance and ambit diminished to the extent that states began to regard it as a general moral principle that imposed only narrowly defined legal constraints. In particular, interception or interdiction of refugees on the high seas came to be regarded as activities falling outside the legal ambit of the non-refoulement obligation. However, in Europe, this has begun to change. The non-refoulement obligation found in Article 3 of the European Convention on Human Rights (ECHR) has been recognized as a legal constraint on state sovereignty in relation to migration controls on the high seas. This article scrutinizes how the developing concept of jurisdiction in human rights law, particularly as found in the ECHR, has expanded the scope of application of the principle of non-refoulement, and presents some important implications. The concept of state sovereignty has begun to undergo a paradigm shift that places extraterritorial human rights concerns relating to external migration controls squarely within a legal rather than merely a moral framework.

As a result of the perception that trials at the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) are too lengthy, a discernible shift in the trial practice of the ICTY is occurring, with a greater emphasis on the role that the judges play in controlling the proceedings. While the first few trials at the Tribunal closely resembled common law criminal trials, the level of control being exercised by the Trial Chambers in recent cases is moving more in the direction of the civil law approach. As a result, a truly mixed jurisdiction, that is, one that contains elements of both the common law and the civil law, is emerging. This evolutionary process will be examined in the context of: (1) The Rules of Procedure and Evidence and amendments thereto concerning case management; (2) examples of case management under the amended Rules; and (3) the future evolution of the ICTY.

Although the International Criminal Court (ICC) has been mostly hailed as a victory, Islamic states still regard its application of international criminal-law norms with scepticism. The Rome Statute instructs the Court to apply general principles of law derived from national laws of legal systems of the world including the national laws of states that would normally exercise jurisdiction over the crime but, so far, the Court has relied purely upon Western inspiration and may fail to acquire the legitimacy to establish a universal system. Among the legal systems that are unjustifiably neglected by the ICC is the Islamic legal tradition. This paper argues that the principles of Islamic law are, for the most part, consistent with internationally recognized norms and standards, particularly those enshrined in the Rome Statute, and are on an equal footing with the common and Continental legal systems that are currently employed by the Court in the search for general principles of law.

In 2015 Europe’s refugee protection crisis triggered the effective collapse of the world’s most complex regional framework for asylum. A development both unexpected and unexplained by the hierarchical model of European asylum law that tends to dominate the scholarly field. The abandonment among member states of core obligations under international and EU law and the principles of solidarity and good faith is central to this crisis. This dynamic has been in the making since the accession process when EU membership was offered in exchange for transposing international obligations through the EU asylum acquis, collectivizing external border control and shifting refugee ‘responsibility’ to new member states with minimal standards for refugee protection and weak enforcement mechanisms. Yet, the critical feature of this asylum crisis is its development into a European constitutional crisis, impacting freedom of movement, sincere co-operation, democracy, and the rule of law. A hierarchical model of law offers only a partial explanation of this interplay between refugee protection and European governance. A turn to the methodological debates in international law urges the repositioning of the lens of refugee legal scholarship, offering insights into the evolution towards crisis by looking at law from below against the backdrop of law in history, subregional law-making, and shifting power constellations. This process suggests that refugee law scholarship could benefit from widening its methodological canon by visiting its parent field of public international law.

The essay argues that the absence of an international treaty definition of aggression in international law should not preclude the prosecution of its perpetrators. Two legal regimes of responsibility, namely the prohibition against aggression as an international wrongful act and the crime of aggression have been entangled. Once one separates the criminal liability of individuals from state responsibility, a definition of the crime of aggression can be seen. According to the author, the contours of such a new definition contain the requisite degree of certainty for judicial approaches instead of merely political approaches. Consideration is also given as to whether conspiracy to wage a war of aggression may also be regarded as a separate crime within international criminal law.

This article engages with the current internationalist debate about the ‘linkage’ or the proper relationship of trade and human rights law. The debate, as played out in activist commentary, scholarly journals and the reports of international institutions, is largely concerned with the substantive obligations or normative commitments involved in the two fields. This article seeks to address instead the forms of law (the patterns of relations and subject positions) that transmit, frame or accompany these obligations and commitments. It suggests that focusing on this question of the forms of law is helpful, perhaps even necessary, in developing an understanding of the political effects of appealing to democratic participation as a counter to the excesses of economic globalization. The particular focus of the article is on WTO agreements that pursue the goal of regulatory harmonization as a means of achieving greater market access and economic integration. It explores the relationship between the form of law mandated by these harmonization agreements (the form of sacrifice), and the form of law envisaged in an appeal to democratic political participation (the form of abandonment).

Soft law is often seen as a way to overcome certain problems of legitimacy in international law, notably the weaknesses of a voluntaristic conception of international law's validity. Other perceived benefits of soft law include flexibility, speed of adoption and modification, and even effectiveness. Yet, soft law is seen by others as a threat to law, because it effaces the border between law and politics. This paper explores different approaches to the boundary between law and not-law that seek both to maintain this boundary and to reconceptualize it in a way that better anchors the validity of international legal rules.

The role of domestic courts in the application of international law is one of the most vividly debated issues in contemporary international legal doctrine. However, the methodology of interpretation of international norms used by these courts remains underexplored. In particular, the application of the Vienna rules of treaty interpretation by domestic courts has not been sufficiently assessed so far. Three case studies (from the US Supreme Court, the Mexican Supreme Court, and the European Court of Justice) show the diversity of approaches in this respect. In the light of these case studies, the article explores the inevitable tensions between two opposite, yet equally legitimate, normative expectations: the desirability of a common, predictable methodology versus the need for flexibility in adapting international norms to a plurality of domestic environments.

In this article, I argue that two prominent frameworks for evaluating and developing international criminal law (ICL) can be reconciled into a new framework that absorbs the best insights of its predecessors. We cannot simply transplant fundamental principles from national legal systems, because they may be inapposite in the unusual contexts faced by ICL. However, this novelty does not mean that we are free to simply abandon culpability, legality, and our basic underlying commitment to the individual. Instead we must explore what that deontic commitment might entail in these new contexts. My primary aim is to show the possibility of bridging the apparent normative impasse. I also briefly sketch out the proposed framework, and suggest that it can generate new questions for current controversies in ICL. As an interesting by-product, the examination of ‘abnormal’ criminal law can raise new questions for general criminal-law theory, by exposing subtleties and parameters that we might not have noticed in a study of ‘normal’ contexts.

This article lays the groundwork for a Marxist theory of the international law of land-grabbing. It argues that any comprehensive politico-economic analysis of land-grabbing must also be a politico-economic analysis of the law of land-grabbing. It argues further that Marx’s account of ‘primitive accumulation’ in Capital – an account it presents as an historical explanation of the transition to capitalism as well as a general theory of ‘extra-economic’ force deployed through state power, including, crucially, the power of law – is helpful for developing an analytical framework for understanding the legal facets of land-grabbing. Political economists, rural sociologists, and social and political theorists have argued for and against the applicability of Marx’s theory of ‘primitive accumulation’ to the contemporary wave of global land grabbing. Intriguingly, though, no international lawyers have grappled with the question of whether a specifically Marxist approach to the phenomenon can or should be developed. This article does so, contending that contemporary land-grabbing is unintelligible absent a theory of capitalism, and that the processes whereby capitalism transforms land and labour are unintelligible absent a theory of the periodic waves of legally mediated ‘primitive accumulation’ that propel it forward. The article pays particular attention to the work produced by Olivier De Schutter during his tenure as United Nations Special Rapporteur on the Right to Food.

The ‘Abyssinia Crisis’ of 1935–36 – in which one League of Nations member (imperial Ethiopia) was annexed by another (Fascist Italy) – presents one of the clearest twentieth-century illustrations of international law's ‘progress narrative’. International lawyers are encouraged to draw a salutary lesson from the crisis: namely that Ethiopia's sovereignty – and, indeed, the peace of the entire world – might have survived the 1930s if only international law had been properly enforced. Yet, the assumption upon which this lesson depends – to the effect that Ethiopia's only discursive contribution to the crisis was passively to regurgitate the relevant clauses of the Covenant – is profoundly ideological. For this assumption effects a double suppression: erasing Ethiopia's strategic construction of a hybrid, partially Abyssinian international law from the discipline's memory; and concealing from scholarly view the possibility that Ethiopia's annexation might have resulted from actions that were in accordance with, rather than in violation of, interwar international legal norms regarding sovereignty and the use of force.

A few years before the expected convening of the First Review Conference on the Statute of the International Criminal Court, the Special Working Group for the Crime of Aggression has made very significant progress in preparing the ground for enabling the Court to exercise its jurisdiction over what the Nuremberg Tribunal famously called the ‘supreme international crime’. The complex structure of this absolute leadership crime has been fully explored, including its implications for the interplay between the definition of the crime and the general principles of international criminal law. At the same time, the crucial analytical distinctions between state and individual conduct as well as between the substantive elements of the crime and the possible procedural role of the UN Security Council appear to be generally accepted. In the light of the momentum achieved on the diplomatic level, the First Review Conference presents a distinct and historic window of opportunity to the world's political leadership to complete the Rome Statute and thereby prevent its prominent lacuna from becoming permanent and thus turning into a legitimacy gap. The final phase of the negotiations should be guided by two principles. First, the substantive definition of the state act of aggression should stay within the legitimate limits of international criminal justice by not exceeding undisputed general customary international law. Second, a possible procedural role for the Security Council must not have the practical effect of placing the permanent members of the Security Council beyond the reach of the law.

According to, e.g., some Western governments and the ICRC, existing rules of international law would provide adequate protection of the environment in times of armed conflict. However, a proper analysis of the existing rules, contained in relevant treaties and customary international law, suggests that this protection is currently far from adequate, in times of both international and non-international armed conflict. In order to ensure a better protection of the environment in times of armed conflict, a new approach is required which departs from the obvious necessity of a common recognition of the following three fundamental ideas: 1. the indivisibility of a healthy environment as an indispensable condition for the survival of present and future generations; 2. the necessity to disconnect the legal protection of the environment in times of armed conflict from its anthropocentric legal enclosure; and 3. the need to expand the protective scope of the relevant rules beyond the current level of merely prohibiting the known or expectable and the obsoleteness of the distinction between environment protection pursued by the law of peace and environment protection pursued by the law of armed conflict, as well as recognition of the environment as a common heritage (or at least a common concern) of mankind.

In the last two decades, the concept of plurinationalism has appeared in discussions about nationalism, statehood and multilevel governance, being formulated as a new state model that accommodates cultural diversity within the liberal state with the aim of solving nationalistic conflicts in countries marked by profound ethnic grievances, mainly in Europe. However, these discussions have paid less attention to the meaning of plurinationalism in ex-colonial contexts, particularly in recent experiences of state transformation in Bolivia and Ecuador, where the role of indigenous peoples in the plurinational project has been crucial. To fill this gap, this article explores the legal and political foundations, challenges and local and international dynamics in the building of the plurinational model in both countries. Under a critical engagement with Third World Approaches to International Law (TWAIL), this article argues that plurinationality from indigenous perspectives departs from multicultural liberal models associated with current European plurinational views, and addresses two challenges: a global political economy of resource extraction, and a racialized state structure working as a barrier to actual plurinational implementation. These limitations explain an intrinsic tension in the Bolivian and Ecuadorian experience: on the one hand, plurinational governments try to unify the people around the ‘national interest’ of developing extractive industries; and on the other hand, they attempt to recognize ethno-political differences that often challenge the transnational exploitation of local resources.

The article revisits the Barcelona Traction judgment of the International Court of Justice, rendered forty years ago. It evaluates the lasting influence of the Court's pronouncements on the nationality of corporations and on obligations erga omnes, and uses the case to illustrate the Court's role as an influential agent of legal development. In this respect, it identifies a number of factors that can help to explain under which circumstances judicial pronouncements are likely to shape the law.

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.