The question of international law's role in progressive politics has become increasingly important. This is reflected in an upsurge in scholarship dealing with international law's relationship to imperial power and its progressive potential. There has also been an increase in the number of Marxist accounts of international law, with China Miéville's Between Equal Rights being particularly important. Miéville's book is very pessimistic as to the progressive potential of international law. This article contests Miéville's claims by examining his accounts of legal subjectivity, violence, and indeterminacy, and argues that international law's content is open to progressive appropriations. However, the ‘form’ of international law limits its ability to criticize systemic or structural problems, so that it has very little transformative potential. A progressive politics of international law must therefore take advantage of content without falling foul of form. The article finally enquires whether in some extraordinary situations international law might be transformative.

This article focuses on Antonio Gramsci's hegemony theory. Hegemony, for Gramsci, is a particular way of living and thinking, a Weltanschauung (world-view), on which the preferences, taste, morality, ethics, and philosophical principles of the majority are based. Social struggles are transformed into legal ones in the course of processes in which juridical intellectuals are organizing hegemony under the special conditions of the legal system. We try to use this concept to contrast it with the prevailing readings of hegemony in international relations and in international law. ‘Hegemonic law’, we argue, is not the law of any superpower, but an asymmetric consensus which relies on a climate of world-society-wide recognition. The concrete form of hegemonic law under particular social conditions depends on the ‘historical bloc’, in which it is coupled with other social praxes. In the post-Westphalian system the historical bloc is fragmented into transnational and colliding legal regimes and law-generating processes in civil society.

This article examines the reasoning and findings of the International Court of Justice in its judgment in Djibouti v. France on issues pertaining to the immunities and inviolability of state officials. While recognizing the Court's contribution to the clarification of certain aspects of the legal regime of the immunities and inviolability of state officials, the article emphasizes a number of points on which a clear response cannot be found in the judgment. Moreover, some concerns or doubts are raised about the way in which the Court dealt with certain issues regarding, in particular, the classification of immunities, their scope, their implementation, and the acts precluded by their operation. The Court's judgment clearly shows the complexities surrounding the legal treatment of numerous aspects of a topic which continues to be of the highest importance and sensitivity in international law and international relations.

The provisions of the ICC Statute allowing victims to participate in the criminal proceedings in their own right were a novel feature in international criminal proceedings. While representing a welcomed restorative element, victim participation has been a time and resource consuming issue for the ICC to handle. After a number of decisions concerning participation in the investigation and pre-trial phases of the process, the trial chamber in the Lubanga case and the Appeals Chamber have issued the first rulings with respect to victim participation at trial. This note addresses these decisions and controversial issues therein, such as the nexus between the victim and the crime charged and the victim's right to adduce and challenge evidence. One may now ask whether victims as ‘participants’ are in fact becoming ‘parties’ to the criminal proceedings.

Witness proofing – or witness preparation – has been common practice at the ad hoc criminal tribunals but was prohibited in the first trial before the International Criminal Court (ICC) (the Lubanga case). The ad hocs have robustly defended the practice, claiming that it assists the efficient presentation of evidence and enhances the truth-finding process. This article examines the way in which the ad hocs have allowed the process to become an integral feature of their procedural regimes without sufficient examination of these apparent merits. The ad hocs appear to have accepted that prohibiting the parties from rehearsing, practising, and coaching evidence was in the interests of justice, but yet – in the uncritical acceptance of the benefits of proofing – have sanctioned practices which are impossible to distinguish. The Lubanga case represented a welcome attempt by the ICC to examine proofing and its attendant risks and, for the reasons outlined in the article, the chambers arrived somewhere close to the right decision.

It can be shown that – as with the tie between crimes against humanity and the perpetration of other international crimes in the Charter of the International Military Tribunal in Nuremberg – the context element of the crimes against humanity as set out in the Rome Statute is based on the international law principle of non-interference in the affairs of a foreign country, and only serves to justify ‘international’ jurisdiction in respect of crimes which are typically already punishable pursuant to the lex loci commissii. As a consequence, the feature of a ‘widespread or systematic attack directed against any civilian population’ is not an aggravating circumstance in respect of the material facts of the case that define the wrong of the act (Unrecht) or the offender's blameworthiness (Schuld), but a jurisdictional element which is a mere precondition for prosecution only.

The Rwandan genocide remains one of the most horrific atrocities of the twentieth century, resulting in the death of an estimated 500–800,000 human beings, massacred over a 100-day period. In the fourteen years since the genocide, attempts at justice and reconciliation in Rwanda have involved a delicate interplay between national legal systems and the international legal order. This article examines three fora in which Rwandans have been tried for involvement in the genocide: the International Criminal Tribunal for Rwanda, Rwandan courts including Gacaca tribunals, and French attempts to exercise universal jurisdiction. Using Rwanda as a case study, the article illustrates the issues, concerns, and difficulties that arise when multiple jurisdictions assert a right to exercise criminal jurisdiction over the perpetrators of serious atrocity crimes. Beginning with a discussion of the political context, this article considers what the competing narratives and litigation in various fora have meant for the project of international and transnational criminal justice. Cases involving the commission of atrocities pose unique challenges for the international legal order. As the normative structure of international criminal law has arguably been strengthened, political constraints increasingly come to the fore. As illustrated by Rwanda, universal jurisdiction or other bases of jurisdiction may remain necessary vehicles for justice and reconciliation, or, at the very least, they may serve as a catalyst for change in Rwanda itself.

The international legal entitlement by which a state constitutionally designates its name, or a province therein, involves a unilateral act. Where, however, another state wishes to choose the same appellation, as is the case with the former Yugoslav Republic of Macedonia (FYROM), the matter can only be resolved by reference to the first user and the maxim prior in tempore potior in jure. The first user must provide evidence of continuous use and of protest in those cases where the same appellation was appropriated by a third state. Under such circumstances the entitlement becomes exclusive, rather than concurrent, because the prior user may be said to possess a sound historic title, such that has been recognized by international judicial bodies to determine acquisition of territory, effective administration, historic bays, and so on. The exclusivity of the entitlement is further reinforced by analogy with general principles derived from the law of trademarks. At a practical level, the application of the international law of geographical indications clearly demonstrates that the designation ‘Macedonia’ cannot be used for a significant number of products originating in FYROM, since the Greek province of Macedonia has for a long time branded and registered such products. This will create insurmountable problems for producers in FYROM when they try to brand their goods under the country's constitutional name. A change of name, particularly through the compromisory use of a compound, would alleviate legal, political, and financial concerns.

According to well-established case law of the European Court of Human Rights, the prohibition on expulsion resulting in ill-treatment under Article 3 of the European Convention on Human Rights is ‘absolute’: it does not allow for balancing of interests. Analysis of the Court's case law, however, shows that the application of the provision involves various forms of balancing, for example when delimiting the burden of proof or qualifying an act as ill-treatment. The absolute character expresses a value judgement about the importance of the prohibition, and it serves as an argumentative tool applied to sustain wide or inclusive readings of Article 3 ECHR.

Since it is traditionally labelled the most neglected aspect of the field, different triggering factors might account for the so-called ‘historical turn’ in international law in the post-Cold War era. On the material side, the preconditions for professional work in this area have been met by a certain democratization of research brought about by the progressive incorporation of new technologies and a trendy rising demand for international lego-historically oriented work from the publishing side. The emergence of specialist journals, the consecration – as a matter of editorial policy – of special issues in reputed publications to key historical doctrinal figures of international law, and the appearance of a number of emblematic book-length works (which have, in their turn, contributed to feeding the industry of historical international legal commentary) feature both as cause and as nurturing ongoing effect of the contemporary ‘global surge of interest in the history of international law and its scholarship’. While admittedly receptive in its evolutionary dynamics to these favourable background material academic conditions, a number of intra-disciplinary rationales should be concomitantly examined so as to account for the accompanying scholarly spiritual drive that has made it possible that the history of international law might today claim a disciplinary status of its own.