The article engages in an ideology critique of international criminal-law texts and discourse, drawing on a theoretical framework developed by critical legal studies scholars in order to interrogate, in a different jurisprudential context, the assumptions undergirding contemporary international criminal-law (ICL) scholarship. It argues that the triumphalism surrounding ICL and its adequacy to deal with conflict and violence ignores the factors and forces – including specific international legal interventions in countries’ political economies – that shape or even help establish the environment from which such conflict and violence emanate. In uncritically celebrating ICL and equating it with a pacific international rule of law, ICL scholarship risks shaping passive acquiescence in the status quo and discouraging more throughgoing efforts to address the systemic forces underlying instances of violence, including political–economic forces shaped by international legal institutions.

The equal application of international humanitarian law (jus in bello) to all parties to an international armed conflict is a cornerstone principle of jus in bello. In his article, Professor Mandel casts doubt on the legal basis of this principle. Reacting to this claim, this contribution demonstrates that the ‘equality of belligerents’ is a principle firmly grounded in both conventional and customary international law. Moreover, its legal force withstands the test of international jurisprudence, including the International Court of Justice's controversial Nuclear Weapons advisory opinion.

This paper draws on some of the preliminary findings of a small pilot study which aimed to discover what evidentiary challenges a range of practitioners with experience of different international trials faced in the cases they were involved in, and what practices were developed to deal with these challenges. The findings in this study are based on the data collected from The Hague-based institutions, the ICC, the ICTY, the ICTY and ICTR Appeals Chamber, and the Special Tribunal for the Lebanon (STL). It is argued that professionals moving from institution to institution are engaged in a process of cross-pollination which itself influences the practices that develop, although a common understanding of certain evidentiary issues in international trials remains fragmented and at times elusive.

This article introduces some quantitative and qualitative analysis on the use of written witness statements in lieu of oral testimony at trial to assess in practice the impact of the rules on the admissibility of written witness testimony before the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone. It traces pieces of evidence admitted under the newer, more liberal, rules on written witness testimony from admissibility to judgment, to establish what impact, if any, these rules have had in practice and whether the critique that such rules might jeopardize fair-trial standards has been realized. The analysis illustrates that the newer rules on admissibility are used with relative infrequency in some tribunals, but that the admission of such statements could raise the question of equality of arms in others, given that the more liberal rules on written statements tend to be used more frequently by the prosecution than by the defence. It will be shown that some chambers have continued to emphasize the importance of oral testimony and have taken a very cautious approach when weighing written testimony, whilst others have suggested that written testimony that was not subject to full cross-examination should not, in principle, be given less weight than oral testimony. The ‘totality of the evidence’ approach in weighing the evidence will be analysed from a practical standpoint, and it will be shown that recent Appeals Chamber jurisprudence suggests that trial chambers may need to take a more particularized approach to pieces of evidence in the future.

As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible recharacterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the Lubanga and Katanga cases.

The nature of international criminal trial practice is integral to the perception of the legitimacy of international criminal justice. However, our understanding of what transpires within the trial chambers of international courts and tribunals (ICTs) comes primarily from the reports of judges, lawyers, and stakeholders within the system. This article argues that, while the vast body of international criminal justice scholarship barely draws on socio-legal research, empirical work can contribute to a more objective understanding of international criminal trial practice. It examines prevailing academic approaches to the study of international trial practice as a backdrop to the assessment of data from one of the most expansive empirical studies of international trial practice, undertaken during the second mandate (1999–2003) of the International Criminal Tribunal for Rwanda (ICTR). The findings illustrate significant variations in how judges in different Trial Chambers chose to exercise discretion, revealing the co-existence of two distinct modalities of practice in ‘proactive’ and ‘reactive’ Trial Chambers. Quantitative and qualitative data allow for an assessment of the efficiency of these modalities, revealing the critical role of the performance of the judge in the trial process. It is argued that these findings highlight the potential for further socio-legal research to motivate ‘light-touch reform’ within the international criminal justice system.

In this monograph Professor Tai-Heng Cheng purports to set up a global perspective on the role of international law in international relations, and in particular on the conditions and ways through which it can be effective. The perspective is the one of the ‘rational’ decision-maker, in the best vein of the New Haven school, whose theoretical framework the author espouses completely and thoroughly. The book is a valuable contribution to international legal theory; it is not written in abstract and hollow words, but on the basis of a practical enquiry based on many examples. By adopting this perspective, it provides the reader with many interesting insights. In particular, it is enriching for the European reader, who is not used to this genuinely ‘US–American’ perspective. The various chapters of the book are as follows: ‘Confronting Anxieties about International Law’; ‘The Politics of Theorizing’; ‘Legalism and Morality’; ‘Judges’; ‘Arbitrators’; ‘Regulators’; ‘Legal Advisors’; ‘Officials’; and ‘Law beyond Cases’. The purpose of these lines is not to give a full account of that book. Nor is it to portray the numerous thought-provoking and fruitful aspects of the developments contained therein; nor, by the way, is it to criticize some points on which the ‘Europeans’ will easily disagree with the author, as on what is permitted to the US officials in Guantánamo (p. 227 ff.). The point is rather to spell out some cardinal aspects, which seem to the present author to be weaknesses of the general approach or inadequacies of particular points. The critical approach, which will here be put forward, should not lead the reader to believe that the book presently criticized is devoid of merit. On the contrary, the author of these lines would not have ventured into the exercise of writing an essay on it if he had believed that such was the case.

The ICC's early history indicates that more attention must be paid to the investigative practices of the Office of the Prosecutor. The judicial record to date, and the increasing dissatisfaction amongst affected communities with the Court's work, belies the desirability of the ‘light-touch,’ low-cost approach to investigations that has hitherto been championed. Rather than positioning the ICC as a remote site of justice, the Office must locate its investigative work more thoroughly on the territories in which it is engaged. The composition of its staff has also been insufficiently reflective of the countries under investigation and its relationships with individuals and institutions on the ground poorly managed. Despite relying heavily on the knowledge that these local actors can bring, the OTP has too often employed a unilateral approach to evidence gathering, failing to integrate their concerns and priorities into the investigative process.