The armed conflict in Gaza raises a series of questions under international law. The most significant questions concern the Israel’s use of force under jus ad bellum, the military operations conducted by the belligerents in relation to the law of armed conflict, and the proceedings brought before certain international courts, such as the International Criminal Court. This article examines each of these three issues in two stages. Firstly, it shows that the answers to these questions give rise to uncertain solutions insofar as they depend on the point of view adopted in relation to fundamental controversies concerning Palestine, such as the latter’s statehood. Secondly, it sets out the solutions that emerge independently of these controversies, whether these solutions express certainties or likelihoods.

Debates about global distributive justice focus on the gulf between the wealthy North and the impoverished South, rather than on issues arising between liberal democracies. A review of John Rawls’s approach to international justice discloses a step Rawls skipped in his extension of his original-position procedure. The skipped step is where a need for the distributional autonomy of sovereign liberal states reveals itself. Neoliberalism denies the possibility and the desirability of distributional autonomy. A complete Rawlsian account of global justice shows the necessity and possibility of a charter between liberal states, assuring each a proper minimum degree of distributional autonomy

In The Law of Peoples, John Rawls introduces a framework for realistic utopia, within which the limits of practicable political possibility are probed through the further development of his international theory. This essay addresses the apparent paradox of realistic utopianism within the context of, and in relation to, ideal theory, in an attempt to explore the scope and limits of Rawls’s theory. The ideas behind Rawls’s realistic utopia are discussed in detail, the concept is contrasted with ideal theory in order to assess to what extent Rawls’s framework for realistic utopia introduced in The Law of Peoples differs from other forms of ideal theory, and the limits of realistic utopianism are identified.

I argue first, that, in an attempt to address the potential feasibility constraint, Rawls tries to distinguish his framework of realistic utopia from that of more traditional ideal theory. I then proceed to examine the differences between realistic utopianism in The Law of Peoples and ideal theory in A Theory of Justice. I then conclude that Rawls only partially meets the challenge of establishing practicable political possibility. In actuality, Rawls’s focus on ideal agents in ideal as well as nonideal theory, together with his emphasis on societies as closed and self-sufficient, ignores the potential for noncompliance by liberal and decent societies, as well as interdependencies between societies that can cause or lead to injustice, conflict, and instability. I argue that despite these flaws, Rawls’s approach nevertheless provokes new insights into the function of the principles of the ideal theory framework as guidelines for real-world policies striving toward peace, stability, and justice.

In a short, provocative essay in First Things, political scientist Daniel Philpott argued that there is a new international theology. He called that theology “the liberal peace.” The liberal peace is an approach to international peacebuilding and transitional justice that emphasizes criminal trials alongside the rapid establishment of a market economy and a liberal democracy, especially in the form of elections. According to Philpott, this “theology” has its own cathedral in The Hague, its own pope (Luis Ocampo, the first Prosecutor of the International Criminal Court), magisterium (speeches by UN secretary generals, beginning with Boutros Boutros-Ghali's 1992 document An Agenda for Peace), saints (Woodrow Wilson), and doctrinal tradition. The doctrinal tradition is composed primarily of the writings of liberal philosophers (Immanuel Kant, Thomas Hobbes, John Locke, John Rawls, etc.) who highlight individual rationality as the ground of human rights and the protection of individual rights as the solution to the dangers of living in the state of nature.

The International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) were created to deliver accountability for the atrocities committed during Rwanda's genocide of 1994 and Sierra Leone's civil war of the 1990s. The capacity of these courts, however, like other international criminal tribunals, is limited in terms of the number of persons they can prosecute. If most perpetrators evade justice, the ability of international tribunals to deliver accountability may be seriously undermined. To mitigate this risk, national justice systems should deal with the perpetrators who are not addressed by international tribunals. When national systems do not do so (or fail to do so effectively), international tribunals are well placed to encourage (or improve) national atrocity-related judicial proceedings, thereby increasing their chances of delivering accountability.

This article assesses empirically the impact of the ICTR and SCSL on national atrocity-related judicial proceedings in their target countries, thus contributing to an overall assessment of these tribunals. The article also compares the national impact of the ‘pure international’ ICTR to that of the ‘hybrid’ SCSL and tries to identify features that affect the national impact of an international tribunal. Understanding the interactions between international and national justice systems, and the features that affect the national impact of international tribunals, is particularly important given the shift to ‘positive complementarity’ at the International Criminal Court.

Justice and the Convention on Biological Diversity

Doris Schroeder and Thomas Pogge

Benefit sharing as envisaged by the 1992 Convention on Biological Diversity (CBD) is a relatively new idea in international law. Within the context of non-human biological resources, it aims to guarantee the conservation of biodiversity and its sustainable use by ensuring that its custodians are adequately rewarded for its preservation.

Prior to the adoption of the CBD, access to biological resources was frequently regarded as a free-for-all. Bioprospectors were able to take resources out of their natural habitat and develop commercial products without sharing benefits with states or local communities. This paper asks how CBD-style benefit-sharing fits into debates of justice. It is argued that the CBD is an example of a set of social rules designed to increase social utility. It is also argued that a common heritage of humankind principle with inbuilt benefit-sharing mechanisms would be preferable to assigning bureaucratic property rights to non-human biological resources. However, as long as the international economic order is characterized by serious distributive injustices, as reflected in the enormous poverty-related death toll in developing countries, any morally acceptable means toward redressing the balance in favor of the disadvantaged has to be welcomed. By legislating for a system of justice-in-exchange covering nonhuman biological resources in preference to a free-for-all situation, the CBD provides a small step forward in redressing the distributive justice balance. It therefore presents just legislation sensitive to the international relations context in the 21st century.

In his well-written and well-argued paper ‘International Toleration: Rawlsian versus Cosmopolitan’, Kok-Chor Tan raises the important question as to where the limits of toleration are to be drawn. This is an important issue not only from the perspective of international law, but also for any domestic society. Toleration is never an automatic element or quality of any society, but has to be defended against the ever present danger of intolerance and repression. This is especially the case in the post-9/II era with regard to Islam, as it is not always easy to separate serious analysis of this religion from outright prejudices against its believers. With regard to Islamic minorities, the present attitude of some ‘Western’ majorities does not always reflect an attitude of respect, although this is not often admitted. It is not argued that Islamic minorities and other immigrants should adapt to the culture of the majorities because minorities have to give in to majorities on the basis of democracy; instead, it is claimed that Western majorities live in accordance with universal values. As Western societies have incorporated universal values formulated for the first time in the age of Enlightenment, they can rightly require from immigrants and minorities that they give up part of their values and identities without any real loss on their side. In forcing immigrants to adapt to Western values, majorities are merely liberating them from outdated particularistic codes and worldviews, thus enabling them to be free in accordance with truly universal values. This, obviously, is a peculiar way of understanding the Enlightenment, not with Kant as a perpetual challenge (‘we do not live in an enlightened age, but in an age of enlightenment’), but as something that is achieved and stably embodied in ‘our’ Western societies. Immigrants and minority members can reasonably be asked to identify with such societies. Although such a demand to assimilate might at first glance be seen as testifying to intolerance, in reality this is not the case. Why should we allow others to live in error? In the face of truth, toleration is a superfluous virtue. It goes almost without saying that this view, which is deemed by some as Enlightenment fundamentalism, contradicts the spirit with which Locke and Spinoza in the seventeenth century proclaimed the superior value of tolerance. They argued that all religions claim for themselves to be the one and only true religion and that the best attitude among the contenders of different beliefs would be one of tolerance: nobody can prove convincingly to the other side of the religious divide the truth of his own religion and the falseness of all other religions; and since ‘no man can conform his faith to the dictates of another (since) all the life and the power of true religion consists in the inward and full persuasion of the mind’ (Locke), the use of earthly powers is inappropriate and unjust.

This article discusses the possibility of the International Criminal Court's taking domestic investigations and prosecutions of crimes within its jurisdiction where states are unwilling genuinely to investigate or prosecute such crimes. In particular sustaining the admissibility of a case on the basis of the lack of impartiality or independence of national proceedings is subject to analysis. Whereas the lack of this due process guarantee is expressly considered in the Rome Statute as a ground for admissibility where it is meant to shield a person from criminal responsibility, it is not equally clear that a case can be declared admissible where domestic proceedings are or were unfairly conducted to the prejudice of the person concerned. On an analysis of the wording of the Statute, its object and purpose, and its ‘preparatory works’, the possibility of the Court's taking on domestic proceedings on the basis of their being intentionally unfair to the prejudice of a suspect or accused does not appear to have a strong legal basis. However, recent developments at the ICTY and the ICTR show the importance of such a possibility to the fulfilment of the mission entrusted to the ad hoc tribunals. This circumstance brings about crucial questions about the role of the International Criminal Court in the enforcement of international justice and its contribution to international peace and security.

How should liberal societies respond to nonliberal ones? In this paper I examine John Rawls's conception of international toleration against what is sometimes called a cosmopolitan one. Rawls holds that a just international order should recognize certain nonliberal societies, to which he refers as decent peoples, as equal members in good standing in a just society of peoples. It would be a violation of liberalism's own principle of toleration to deny the international legitimacy of decent peoples who, among other things, affirm human rights and accept peaceful coexistence with other societies. According to the cosmopolitan idea of international toleration, on the contrary, only societies that are liberal in character meet the criteria for toleration. I suggest that, against the Rawlsian conception of international toleration, the cosmopolitan idea is more consistent with the fundamentals of liberal political morality. I then clarify the ways in which cosmopolitan toleration is not worryingly interventionist even as it is not altogether toothless; and I end with some reflections on why cosmopolitism is not morally imperialistic.