Jack L. Goldsmith and Eric A. Posner, The Limits of International Law, Oxford, Oxford University Press, 2005, ISBN-13: 9780195314175, ISBN-10: 0195314174, 272 pp., £11.99 (pb).

Thomas J. Schoenbaum, International Relations: The Path Not Taken. Using International Law to Promote World Peace and Security, Cambridge, Cambridge University Press,2006, ISBN-13: 9780521681506, ISBN-10: 0521681502, 320 pp., £16.99 (pb).

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.

The first Telders Competition was organized thirty years ago on the occasion of the 30th anniversary of the Telders International Law Students Debating Society. Student teams from the universities of Bonn, Cologne, Strasbourg, and Leiden participated. It was so successful that the Competition has been organized annually ever since. Nowadays it is considered to be the most prestigious and important international moot court competition in Europe. Teams from over 40 universities compete in the national rounds, with up to 26 teams from as many European countries participating in the international rounds held in the Peace Palace in The Hague.

This contribution is dedicated to Professor John Dugard. It discusses the most difficult issue to be resolved in the negotiations on the crime of aggression: the role of the Security Council in the exercise of jurisdiction over this crime by the International Criminal Court. The International Law Commission suggested a solution in the 1990s, but failing the required support and in the absence of subsequent agreement the 1998 Rome Conference could only prospectively give the Court jurisdiction over the crime of aggression. The post-Rome negotiations are characterized by, on the one hand, support from the five permanent members of the Security Council for the thesis that it should be exclusively for the Security Council to determine whether or not an act of aggression has been committed (as a precondition for the exercise of jurisdiction by the ICC) and, on the other hand, a rejection of this thesis combined with a search for alternatives by many other states. According to the analysis below, in relation to cases involving the crime of aggression the preferred way for the ICC to proceed is to exercise jurisdiction over this crime after a determination of state aggression has been made by the Security Council. Nevertheless, the view according to which such a determination could exclusively be made by the Council is rejected, on the basis of the rules of the Charter, the practice of the Security Council and the General Assembly, and decisions of the International Court of Justice. Finally, an alternative arrangement is suggested for the cases in which the Security Council is prevented from acting because of the use of the veto or because of lack of support from its members.

Books and Articles in the Field of the Prevention and Peaceful Settlement of International Disputes (Autumn 2006).

Compiled by Ingrid Kost exclusively from materials available at the Peace Palace Library, The Hague

In the early 1990s, two former members of the Afghan secret service applied for a residence permit in the Netherlands. Their request was denied on the basis of the exclusion clause of Article 1F(a) of the Vienna Convention Relating to the Status of Refugees. There were serious reasons for suspecting that the men had committed war crimes during the Afghan civil war of 1979–92. In 2000, the immigration authorities transmitted the files of the two men to the public prosecution office, which initiated prosecutions in 2003. At the trial, defence counsel raised various preliminary challenges. They argued that the case should be declared inadmissible since relying on the immigration files would violate the nemo tenetur principle and the right against self-incrimination enshrined in Article 6 of the European Convention on Human Rights. Furthermore, the court had no universal jurisdiction over violations of Common Article 3 of the Geneva Conventions since there was no international rule mandating a right to universal jurisdiction over war crimes committed in non-international armed conflicts. The Hague District Court dismissed the defence challenges and eventually convicted the Afghan nationals to 9 and 12 years' imprisonment. The Hague Appeal Court endorsed most of the findings of the District Court and confirmed the convictions and sentences. The reasoning underlying the decisions, both at first instance and at appeal, raise questions particularly with regard to universal jurisdiction. In this article the defence arguments are explored and the reasoning of the courts is analysed.

William Rasch, Sovereignty and Its Discontents: On the Primacy of Conflict and the Structure of the Political, London, Birkbeck University Press (Cavendish Publishing), 2004, ISBN 1859419844, 208 pp., £23.95 (pb).

‘War is for men, for honour and glory.’

‘And death,’ she pointed out.

‘Of course death. That is why women must be protected. Many babies must be born to replace the dead warriors.’

‘It might be better just to stop the wars.’

‘Pah! It is always useless to talk to women. They have no understanding.’

The concepts of nationality and allegiance are central to the doctrine of diplomatic protection as well as to certain institutions of (horizontal) international criminal law such as jurisdiction over treason, passive and active personality jurisdiction, and the non-extradition of nationals. In this sense, there appears to be a clear parallel between these two fields of international law. Yet most scholars – including John Dugard – tend to place and keep diplomatic protection and international criminal law in distinct conceptual compartments, never addressing them in relation to each other. This study considers whether this prevailing strict doctrinal separation is necessary and justified – in other words, whether diplomatic protection and international criminal law are, or can, or should be bridged.

An overview of the Draft Articles on Diplomatic Protection is followed by an assessment of the role of the Special Rapporteur, Professor John Dugard. It is concluded that the Special Rapporteur played a crucial role in the Commission's achievement on the topic.

This article is a personal account of the work of Professor Dugard at the International Law Commission from the point of view of someone who sits next to him in the Commission and has worked with him there for the past six years. It tries to show how his proposals and arguments, especially concerning the topic ‘Diplomatic Protection’, for which he was the Special Rapporteur, greatly directed the debate and led to the approval of innovatory articles such as those concerning refugees, stateless persons, and members of ships' crews and recommendations to governments to take the interests of people injured more seriously. Above all, it tries to show how international law-making processes can be influenced by the determination, the knowledge, and the intelligence of a person whose dedication to the defence of human rights and a fairer world order has been exemplary.

In the Diallo case, the ICJ was required to answer the question of whether the Republic of Guinea could exercise diplomatic protection not only on behalf of its national, Diallo, but also on behalf of two corporations which were incorporated in the Democratic Republic of the Congo but which were owned by a national of the Republic of Guinea. While the Court decided, in line with Barcelona Traction, that the exercise of diplomatic protection for violation of direct rights of shareholders was admissible, it did not accept the claim on behalf of the companies ‘by substitution’. In its reasoning it took a rather restrictive view of the existing exceptions to the rule that protection can only be exercised on behalf of nationals.

This article considers the work of John Dugard in the field of human rights and international law and the impact thereof on the South African legal landscape. After tracing the importance of Dugard's early work in South Africa in the fields of legal philosophy, human rights, and international law, the article turns to consider the later achievements in Dugard's prestigious career. The author highlights the numerous cases in which Dugard appeared as counsel before the South African courts, and considers the impact that Dugard had on the drafting of the South African Constitution in relation to international law and its use in interpreting the South African Bill of Rights. The final section of the article considers the shameful failure of the South African government to support Dugard in his bid to be appointed as a judge of the International Court of Justice. The author concludes that notwithstanding the fact that the government has not accorded him the recognition he deserves, Dugard's pioneering human rights work continues unabated in his various positions, including in his role as the UN Special Rapporteur on human rights abuses in occupied Palestine.

In this article I draw on John Dugard's criticism of apartheid judges to initiate a discussion of the role and functioning of judges in the post-apartheid era. Using John's critique of the limits of judicial interpretation in an illegitimate order, I extend the analysis to review the record of the Constitutional Court in adjudicating socioeconomic rights cases post-1994. In doing so I propose a radical interpretation of the Court's role in society and an activist functioning of judges in South Africa's constitutional democracy. I conclude that, notwithstanding the momentous changes in the South African legal order since 1994, John's critique of the judiciary retains much value and applicability today.