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.

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.

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.

In much international legal scholarship, Iraq stands for what lies beyond the UN Charter – a world in which international institutions have proved unable to challenge the pragmatists of the new American empire, or one in which international institutions must be remade to suit the interests of the only state capable of acting as the sovereign enforcer of the law. Yet this sense of a crisis of legal authority is not novel for international law – rather, it pervades the discipline. Seen in this light, the inability of the United Nations either to prevent the use of force against Iraq, or to develop an effective multilateral response to terrorism, is simply another manifestation of that crisis, another moment in which international law is called upon to renew itself and reassert its relevance. International law is thus a useful site to explore modern responses to the pervasive uneasiness about legal authority and its legitimacy. Attention to anxious representations about what lies ‘beyond’ the law allows an exploration of the nature of the crises of legal authority that haunt modernity, and have returned again so traumatically in this time of terror. International law is also a continuing source of extremely productive responses to that crisis of authority. These responses include conventional attempts to find a new sovereign ground for the law, whether that be in the form of international organizations or of powerful national sovereigns who stand outside the law and guarantee its operation. But international law is also a source of much more surprising and radical responses to the sense of anxiety produced by that crisis. This article develops these arguments through engaging with readings by Jacques Derrida and Shoshana Felman of Sigmund Freud's Beyond the Pleasure Principle. Beyond was written at a time of some crisis for the new discipline of psychoanalysis and for Freud, its sovereign. At stake was the relevance of the discipline, its lack of mastery over its own knowledge, and questions of its proper heirs. All of these issues are at stake for the discipline of international law today.

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.

This article analyzes the provisional measures order of the International Court of Justice (ICJ) in Avena and Other Mexican Nationals, the first provisional measures order issued by the ICJ after its decision in LaGrand holding that such orders have binding effect. After reviewing the background to Mexico's action, the article focuses on Avena's place in the Court's provisional measures jurisprudence, its international legal significance, its potential effects, if any, on the ICJ's perceived institutional legitimacy and authority, and its legal and political consequences for the United States. In particular, the article examines the domestic legal implications of the Court's order for the United States in the context of developing international norms on capital punishment and the due process standards governing its implementation in states that continue to practise it.

Marxian thought retains its relevance in the current period, not as a comprehensive replacement for liberal human rights theories, but as a source of critique that challenges those theories on the basis of the very values of human freedom and dignity that they espouse. The Marxian approach entails no general rejection of human-rights-oriented constraint, procedural or substantive, on efforts to achieve social change, but rather serves the human rights project by demonstrating how contradictory class interests manifest themselves as contradictions within the effort to apply liberal principles in a class-divided society.

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 recent judgement on the merits in the Oil Platforms case has brought a long-standing dispute before the International Court of Justice to a close. This article critically analyzes some of the most interesting topics raised in this judgement, not least the fact that it was harshly criticized by a very high number of judges in their individual opinions. The issues discussed – such as the role of self-defence law within the confines of an ‘FCN treaty’ or the notion of ‘freedom of commerce’ – merely point to higher-level problems of a theoretical nature which cause our confusion as to substantive law.

The dominant international legal theories are based on an understanding of international law in terms of a solely state-based system. This article challenges those theories in the context of the practice of the participants in the international legal system. It proposes an inclusive conceptual approach which acknowledges that non-state actors have distinct and independent international rights, responsibilities, and abilities to bring claims, as well as clear roles in the creation, development, and enforcement of international law, which are separate to that of states. While states currently have a primary role in the international legal system, this role is not exclusive.

The principle of judicial precedent set out by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia raises the five following issues. (i) Is the Appeals Chamber bound by its previous decisions? (ii) Are the trial chambers bound by Appeals Chamber decisions on both legal and factual issues? (iii) Are the trial chambers bound by the decisions of other trial chambers? (iv) Is the Appeals Chamber of the ICTY bound by the decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) and vice versa? (v) Are the trial chambers of the ICTR bound by the decisions of the ICTY Appeals Chamber and vice versa? The author of this article aims to show that the Appeals Chambers, most trial chambers and individual judges of the International Criminal Tribunals comply with the principle of judicial precedent. However, the principle of judicial precedent is arguably weak, because it was established by case law only. The author also intends to demonstrate that the trial chambers and an individual trial judge of the ICTY have recently departed from the practice of judicial precedent in sensitive legal areas, that is (i) the test to be applied to a motion for a judgement of acquittal; (ii) the issue of evidence; (iii) the standard to be applied to a motion for cross-access to confidential documents in other cases; and (iv) the issue of provisional release.

This article is concerned with the remedy of ‘review’ provided for in the Statutes of the International Criminal Tribunal for the former Yugoslavia and for Rwanda, in Articles 26 and 25 respectively, which allows a convicted individual or the prosecution to seek the reopening of a case on the basis of a new fact. The main purpose of this article is to provide a comprehensive overview of how this remedy has been applied by the chambers of the ICTY and the ICTR. It focuses first on the relevant provisions set out in the Statutes and in the Rules of Procedure and Evidence of the two tribunals, and then reviews a range of international and national provisions. The latter examination clarifies the concept of review adopted, and reveals the interplay between international and national provisions. It also shows that the remedy of review can be seen as one application of the general principle of law that a convicted individual must have the right to seek the reopening of his or her case on the basis of a new fact, which may show his or her innocence, even after a considerable lapse of time. This article then examines the decisions rendered so far by the ICTY and the ICTR. It considers the factual context of each case and discusses how the applicable law has been interpreted and refined by the judges of the ICTY and ICTR appeals chambers. In conclusion, some suggestions are advanced as to how the pertinent Rules of Procedure and Evidence could be made clearer and perhaps fairer, in the light of the experience gained from the practice of the two tribunals and the provisions of the Statute of the International Criminal Court.

In The Prosecutor v. Nahimana et al., the trial chamber of the International Criminal Tribunal for Rwanda sought to define the offence of ‘direct and public incitement to commit genocide’. This case note discusses the elements required in the opinion before turning to the way in which the trial chamber applied its tests. Case law from the European Court of Human Rights and laws from a range of national jurisdictions are used to contrast the approach adopted by the trial chamber in the so-called ‘Media Trial’.

The International Court of Justice rendered its judgement on the merits in the case concerning Oil Platforms (Islamic Republic of Iran v. United States of America) on 6 November 2003. This article reviews the judgement, focusing on the Court's substantive legal determinations on the scope of ‘armed attack’ under the right of self-defence. The review further considers the implications of the judgement as regards the role of the Court in the judicial settlement of disputes. It concludes by considering the impact of the judgement on the legal framework for international peace and security as applied in the maritime context.

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.

This note examines the ICTY's judgement of 5 December 2003 in the case Prosecutor v. Stanislav Galić. It provides a general overview of the facts of the case and then reviews the chamber's discussion of the two war crime charges – attack on civilians and terror against civilians – and of the individual criminal responsibility of the defendant.

On 16 June 2003, the first Prosecutor of the newly established International Criminal Court (Court), Luis Moreno Ocampo, was inaugurated. He faces enormous challenges ahead in the short term, including the need to increase the number of states ratifying and implementing the Rome Statute of the International Criminal Court and to demonstrate that criticisms of the Court and his powers made by the current administration of the United States of America in the course of its campaign to undermine the Court are unwarranted. This article describes the background to the establishment of a permanent independent Prosecutor within the Court, able to open, subject to extensive statutory and judicial constraints, investigations on the Prosecutor's own initiative. It then describes the statutory provisions establishing the post and defining the powers and duties of the Prosecutor. The article concludes with a discussion of the imaginative way in which he is setting up the Office of the Prosecutor and his innovative overall strategy as a leader in the global fight against impunity. As the Prosecutor demonstrates his independence, impartiality, fairness, and effectiveness in conducting trials, and his ability to inspire states to fulfil their obligations to complement his efforts by investigating and prosecuting these crimes themselves, the long-term prospects for the Court will become increasingly promising.

On 16 June 2004 Trial Chamber III of the ICTY issued a judgement on a motion for dismissal of charges in the Milošević case. Brought forward by the amici curiae appointed by the trial chamber, the motion for acquittal achieved limited success. While some allegations were dismissed, particularly with respect to the Bosnia Indictment, overall, the trial chamber found that the prosecution had led sufficient evidence to support each of the counts challenged in the three indictments against the accused. This article highlights some of the significant developments in the trial's first two years and the issues raised in the motion for acquittal, as well as the trial chamber's determination.

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.