International criminal law has made impressive strides over the past twenty years. The 1990s and 2000s saw the establishment of ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda (ICTY and ICTR), the coming into being of the permanent International Criminal Court (ICC), and the birth of several internationalized ‘hybrid’ jurisdictions, notably the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). However, the dynamic development of international criminal law into a new branch of public international law has also led to some problems and confusion. The rules and principles developed by the newly founded international criminal tribunals have sometimes seemed at odds with accepted views on public international law more generally – raising fears about the ‘fragmentation’ of the law. Perhaps the best-known example of this is the controversy over the ‘overall-control’ test developed by the ICTY Appeals Chamber in the Tadić case to determine under which circumstances armed forces may be considered to be acting on behalf of a third state, rendering an internal armed conflict international. The Tadić test differed from the ‘effective-control’ test developed by the International Court of Justice (ICJ) in the Nicaragua case and confirmed in the Bosnia Genocide case, where the ICJ specifically rejected the ICTY approach. Also more generally, the discussion on ‘fragmentation’ and international criminal law continues; recently, Elies van Sliedregt set out in these pages her vision of legal pluralism in international criminal law.

Professor Emeritus of Public International Law Pieter Hendrik (Peter) Kooijmans passed away on 13 February 2013. He leaves a lasting void within the international-law community both inside and outside the Netherlands.

In the previous editorial, Larissa van den Herik and Jean d'Aspremont referred to LJIL's ‘special plural identity’. On the one hand, this plurality shows in its table of contents; on the other hand, the plural identity is equally – if not even more – treasured in terms of appreciating the plurality of voices within the legal discipline, as the editors-in-chief also highlight. Diversity and heterogeneity are an asset for academic debate, and LJIL as such seeks to provide a forum for scholars from different ‘paradigms’. The appreciation of diversity and plurality is also reflected in the interest of LJIL to look beyond the confines of the legal discipline itself and engage with external perspectives to foster discussions about international law. It is in light of this open-mindedness and the wish to reach out to non-legal audiences, and to the international relations community in particular, that I was invited to join the LJIL team some years ago. Whereas there is a growing audience of IR scholars genuinely interested in (theorizing) international law, LJIL is not very well known as a journal with that profile for its International Legal Theory section. As a leading scholar in IR once remarked: ‘LJIL is the best kept secret in IR’. So when the request came for me to write an editorial, it seemed only apt to reflect upon some of the perils and promises of interdisciplinarity from my experience as an IR scholar within the LJIL editorial board.

The interpenetration of global political and economic life has placed questions of ‘political economy’ on the scholarly agenda across the social sciences. The author argues that international law could contribute to understanding and transforming centre–periphery patterns of dynamic inequality in global political economic life. The core elements of both economic and political activity – capital, labour, credit, and money, as well as public or private power and right – are legal institutions. Law is the link binding centres and peripheries to one another and structuring their interaction. It is also the vernacular through which power and wealth justify their exercise and shroud their authority. The author proposes rethinking international law as a terrain for political and economic struggle rather than as a normative or technical substitute for political choice, itself indifferent to natural flows of economic activity.

In the process of selection of articles for the International Court of Justice section at the Editorial Board of the Leiden Journal of International Law (LJIL), we tend to be seduced by those manuscripts which are effective in making use of the jurisprudence of the Court as an instrument to engage in an in-depth examination of substantive legal issues of a general nature. This reflects our conviction – hardly an original one, since it appears to be shared by our entire legal community – that the Court has a fundamental role to play in the advancement of international law as a legal system. It also echoes an idea that is present in the mission statement of our journal, which is conceived as ‘a forum for two vital areas, namely international legal theory and international dispute settlement’, thus establishing an intrinsic link between them. But how is the Court's contribution to the development of international law to be assessed? And what do we expect from a scholarly piece examining its case law in this respect?

Over the last couple of years, a stream of pluralist theories of international legal order has developed at the intersection of international law and political theory, having immediate implications for conceptualizing self-determination. The understanding of self-determination under the framework of bounded, constitutional, and radical pluralism markedly departs from the previous wave of normative theories in the 1990s: self-determination is now evacuated from the field of national pluralism and struggles over territory.

This article does not question the thrust of pluralists’ recent work, but complements their critical attunement to global disparities of power, and complicates their neglect of nationalism and rejection of territorial reconfigurations as self-determination's core meaning. In doing so, it unearths two visions that come from the (semi-)periphery of the international political order. The first belongs to Edvard Kardelj, pre-eminent Yugoslav theorist of socialist self-management and the Non-Aligned Movement. The second belongs to Leopold Sédar Senghor, the poet and politician, advocate of négritude, a proponent of French West African integration, and a constitutional advocate for the reconfiguration – not abolition – of the French Union, the heir to the French Empire. While they are suspicious of extensive territorial reconstruction, like contemporary pluralists, unlike them they have seen a role for territorial reconfigurations in the name of national plurality.

This contribution presents international judicial institutions as multifunctional actors against the background of a traditional understanding, which sees just one function: settling disputes. The traditional, one-dimensional understanding eclipses other important functions that many international courts do actually perform in contexts of global governance and it underrates problems in their legitimation. In order to appreciate international adjudications’ manifold contributions to social interaction, the paper first identifies three more functions beyond dispute settlement: the stabilization of normative expectations, law-making, and the control as well as legitimation of authority exercised by others. It then places these functions within broader basic understandings of international courts, which respectively picture them as instruments of the parties in a state-centred world order, as organs of a value-based international community, and as institutions of specific legal regimes. The distinct problems that each of these basic understanding faces lead to the contours of a new paradigm for the study of international courts as actors exercising public authority. The present functional analysis ultimately helps to refine both the phenomenon and normative questions.

How should international law deal with the uncertainty arising from the rise of irregular forms of warfare? In the past decade, this question has been the topic of several reports produced by international groups of experts in the field of conflict and security law. The most recent examples include the study on the notion of the ‘direct participation in hostilities’ under the auspices of the International Committee of the Red Cross, and the Tallinn Manual on cyberwarfare prepared at the invitation of NATO. In this article, we discuss the Tallinn Manual, showing how experts faced with uncertainty as to the law's precise scope and meaning construct legal interpretations, legal definitions, and institutional facts and norms that can be used to make sense of a contingent world. At the same time, we argue, this absorption of uncertainty produces new uncertainty. Consequently, the power of experts does not reside in their knowledge, but in their control and management of uncertainty and non-knowledge.

Jeff McMahan's challenge to conventional just-war theory is an attempt to apply to the use of force between states a moral standard whose pertinence to international relations (IR) is decreasingly contestable and the regulation of which international law (IL) is, therefore, under pressure to afford: the preservation of individual rights. This compelling endeavour is at an impasse given the admission of many ethicists that it is currently impossible for international humanitarian law (IHL) to regulate killing in war in accordance with individuals’ liability. IHL's failure to consistently protect individual rights, specifically its shortfall compared to human rights law, has raised questions about IHL's adequacy also among international lawyers. This paper identifies the features of war that ground the inability of IL to regulate it to a level of moral acceptability and characterizes the quintessential war as presenting what I call an ‘epistemically cloaked forced choice’ regarding the preservation of individual rights. Commitment to the above moral standard, then, means that IL should not prejudge the outcome of wars and must, somewhat paradoxically, diverge from morality when making prescriptions about the conduct of hostilities. In showing that many confrontations between states inevitably take the form of such epistemically cloaked forced choices, the paper contests the argument by revisionist just-war theorists like McMahan that the failure of IL to track morality in war is merely a function of contingent institutional desiderata. IHL, with its moral limitations, has a continuing role to play in IR.

This introductory paper to the symposium hosted by the Leiden Journal of International Law, and edited by the authors, deals with the function of domestic courts as agents for the development of international law. The paper ‘sets the scene’ for the contributions to the symposium, which seek to trace the impact of domestic courts in the development of canonical areas of international law, such as jurisdiction, immunity, state responsibility, the law of international organizations/human rights, and the law of armed conflict/conduct of hostilities. It discusses the formal quality and actual influence of domestic-court decisions on the development of international-law, and introduces the concept of ‘agents’ of international-law development. This is the analytical perspective that the contributions to the symposium adopt.

On 30 September 2011, the US citizen Anwar al-Awlaki was killed in Yemen in what has become the most controversial incident of US ‘targeted killing’, or, as its critics would prefer, of the US practice of ‘extrajudicial executions’. This controversy over wording expresses a profound disagreement over the legal status of the US drone program. Target killing suggests that the drone program may be legally regulated. Extrajudicial execution suggests that it falls outside the realm of legality. This article does not seek to settle which terminology is the most appropriate. Instead it analyses the legal expertise struggling to do so and its implications. More specifically, it focuses on the processes through which drones constitute the legal expertise that constitutes the drone program as one of targeted killings and of extrajudicial executions; that is, on a process of co-constitution. Drawing theoretical inspiration from and combining new materialist approaches (especially as articulated by Bruno Latour) with the sociological approach of Pierre Bourdieu, the article shows that drones have ‘agency’ in the ‘field’ of legal expertise pertaining to the drone program. Drones are redrawing the boundaries of legal expertise both by making associations to new forms of expertise and by generating technological expert roles. They are also renegotiating what is valuable to expertise. Drones are making both transparency and secrecy core to expertise. However, and contrary to what is often claimed, this agency does not inescapably lead to the normalization of targeted killings. The article therefore concludes that acknowledging the agency of drones is important for understanding how legal expertise is formed but especially for underscoring the continued potential for controversy and politics.

Embassy bank accounts are among the properties of states most widely present in foreign states. Accordingly, they constitute an ideal target for attachment by creditors. International instruments have largely upheld state immunity from execution regarding bank accounts, however. Likewise, state practice largely – and apparently increasingly – supports state immunity from measures of attachment, by applying a presumption that funds in embassy bank accounts are used for governmental non-commercial purposes. This approach is overly deferential to the state. Instead, it is argued that domestic courts should require that the state, at least partially, discharge the burden of proof regarding the nature (commercial/sovereign) of the funds in the bank account. A failure to discharge this burden should result in a rejection of immunity. Only such an approach adequately balances the interests of states and creditors, and does sufficient justice to the creditor's right of access to a court. In addition, it is argued that such a balance is also brought about by construing literally general waivers of immunity from attachment, as not requiring an additional specific waiver regarding embassy bank accounts.

The role of domestic courts in the development of the international law of jurisdiction is less direct and less important than might be supposed. As a manifestation of the practice and opinio juris of the forum state, domestic judicial decisions take a back seat to legislation and, like legislation, represent the position of a single state alone. The more influential part that domestic judicial decisions and, indeed, proceedings can play in the evolution of the international rules on jurisdiction is as triggers both for reactive practice on the part of other states and for international litigation. Domestic decisions can also shape international law when looked to by foreign courts as persuasive judicial authority.

A person with moral commitments can respect International Humanitarian Law (IHL) only if the permissions granted by it do not depart radically from their basic morality, but the features of contemporary war require considerable departures from morality in the content of any rules applicable to war. The features of the contemporary international political arena, in turn, and especially the dominant interpretation of sovereignty, require that IHL be the same for all parties. But, contrary to the arguments of some influential analytic philosophers, such ‘symmetry’ in the laws need not involve their content's departing excessively from basic morality. Insisting on the same rules for all, however, leads to the problem that, other things equal, the more stringent the content of a set of rules, the greater the temptation on the part of self-interested parties to flout the rules. However, a hard-headed view of IHL requires no concessions to terrorists or anti-terrorists.

Security measures taken in the name of the ‘war on terror’ have frequently been understood to operate through a domain of exception, defined as an extra-legal space of intervention where normal rules of juridical protection and due process are suspended. Yet whilst most analyses of the exception are critically reliant on notions of legal threshold, they are largely dismissive of the potentially productive nature of legal contestation. This article inquires into the dynamic confrontation between law and exception in the context of the UN 1267 sanctions system, focusing on the Office of the Ombudsperson as an institutional experiment designed to remedy the fundamental rights deficiencies of the regime. Drawing on Agamben's analysis of the exception as a ‘hybrid space’ and Dyzenhaus's concept of the ‘legal grey hole’, our analysis of the Ombudsperson demonstrates the emergence of novel, hybrid procedures and evidentiary standards being deployed in the 1267 delisting process. First, we assess the Ombudsperson's logics of decision-making and argue that their appeals to fairness hinge on the production of a temporal chasm that legitimizes the deployment of intelligence material in listing cases. Second, we show that the Ombudsperson is in the process of carving out novel evidential standards that are more attentive to notions of inference and speculation than conventional standards of proof. These standards serve to fortify the use of sanctions as a pre-emptive security measure and do not, in principle, appear to exclude material that may be obtained by torture.

Any legal system, including the international legal system, consists of rules that serve multiple purposes and functions that the legal system in question needs to perform in order to survive as a viable organism. Jurisprudence of national and international courts relating to areas such as responsibility, immunity, and dispute settlement has involved intensive discussions as to the nature and implications of the various categories of rules. Approaching this broad area, with its multiple components, requires careful differentiation of the nature of those various categories of rules, for the fact that the relevant classification of rules works in one area does not inherently make it workable in other areas, which is confirmed in practice. The most problematic issue remains the judicial application of jus cogens in relation to state immunities and the ensuing distinction between substantive and procedural rules. It is shown in this contribution that this artificial distinction does not reflect the functions international law actually accords to its various rules, and is instead a product of political and ideological preference to keep particular classes of plaintiffs out of certain jurisdictions.

Contrary to the way Hobbes has been interpreted for centuries, I will argue that Hobbes laid the groundwork for contemporary international law and for a distinctly moral approach to the rules of war. The paper has the following structure. First, I will explain the role that the laws of nature play in Hobbes's understanding of the state of war. Second, I will explain Hobbes's views of self-preservation and inflicting cruelty. Third, I reconstruct Hobbes's important insight that rationality governs all human affairs, even those concerning war. Fourth, I explicate the idea of cruelty moving from what Hobbes says to a plausible Hobbesian position. Fifth, I address recent philosophical writing on how best to understand the rules of war. Sixth, I then turn to legal discussions of cruelty's place in debates about the laws of war, showing how my Hobbesian approach can ground these laws.

This paper explores the role of domestic courts in the development of international immunity rules. It assesses how domestic immunity decisions take meaning in the process of law formation and law determination, and examines whether the distinct influence of domestic-court decisions (as compared to international-court decisions) in that process results in a different role, and concomitant different rules, in the process of interpretation of rules of international law. The paper argues that while domestic courts are as a matter of international law bound by the same rules of interpretation as international courts, they are particularly well placed to address access to court concerns raised by immunity rules and may play a prominent role in the development of international law in this field in the years to come.