Military and humanitarian lawyers approach the laws of war in different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. The result is two interpretive communities that systematically disagree not only over the meaning of particular law-of-war norms, but also over the sources and methods of law that could be used to resolve the disagreements. That raises the question whether military lawyers’ advice should acknowledge any validity to the contrary views of the ‘humanitarian’ community. The article offers a systematic analysis of the concept of military necessity, showing that civilian interests must figure in assessing military necessity itself. Even on its own terms, the military version of the law of war should seek to accommodate the civilian perspectives featured in the humanitarian version.

This article proposes a different theoretical account of the role of domestic courts when engaged in judicial review of decision-making by international institutions. Many domestic courts in democratic societies operate in accordance with a ‘public-law model’ when adjudicating questions related to international decision-making, underwritten by respect for doctrines such as the rule of law and separation of powers. Drawing on a case study of domestic-court decisions in the Security Council sanctions context, this article seeks to demonstrate how the public law model's focus on concepts of ‘bindingness’ and hierarchy between judicial and political organs can lead to distorted outcomes when applied to decision-making by international institutions. As an alternative, the author proposes a different theoretical account of the judicial role, described as the ‘dialogue model’, of courts when engaging in the review of Security Council decision-making. The idea is that domestic courts should confine themselves to tools of ‘interpretation’ and ‘declaration’ in their approach to international decision-making, so as to position their judgments in a more theoretically supportable way in the broader legal context.

Responding to an urgent request by the authorities of Mali, France launched Operation Serval against several terrorist armed groups in January 2013. The French troops were assisted by a Chadian contingent and by forces progressively deployed by other African countries within a UNSC authorized African force (Resolution 2085). While the French and African military operations in Mali were clearly legal, they raise important questions of jus ad bellum in relation to the two legal arguments put forward to justify them: intervention by invitation, and UNSC authorization. In this paper we first discuss the general rules of international law applying to intervention by invitation. We explain that such an intervention could sometimes be contrary to the principle of self-determination and we propose a purpose-based approach. We then apply these rules to the situation in Mali and conclude that the French and Chadian interventions were legal because, on the one hand, the request was validly formulated by the internationally recognized government of Mali and, on the other hand, their legitimate purpose was to fight terrorism. The UNSC approved this legal basis and ‘helped’ France and Chad appeal validly to it by listing the enemy as ‘terrorist groups’. It gave its ‘blessing’ to these interventions, without authorizing them, and observed the events with relief. The adoption of Resolution 2100 on 25 April 2013 raises new legal questions. The Council creates a UN peace enforcement mission in Mali, MINUSMA, which has a robust use-of-force mandate. Created just a few weeks after the DRC Intervention Brigade, this force seems to indicate an ongoing evolution (revolution?) in UN peacekeeping, notwithstanding the assurances by some UNSC member states that MINUSMA will avoid ‘offensive counter-terrorism operations’. At the same time Resolution 2100 gives a restricted use-of-force mandate to France (to protect MINUSMA), without challenging the legal validity of intervention by invitation for all other tasks. The conflict in Mali might thus remain for some time yet between the latitude of UNSC authorization and the longitude of unilateral intervention by invitation.

The following contribution interprets the ICJ decision on the case Jurisdictional Immunities of the State in a broader picture. The article focuses on the cause of action underlying the domestic civil claims, i.e. the primary rules providing for individual rights. Indeed, the traditional view, which conceives immunity as a ‘procedural’ rule, vigorously upheld by the Court, is not the only way to address this topic. In our view, state immunity is a substitute for other more sensitive questions, namely the definition of ‘state’, its prerogatives, and the individuals as right holders under international law. This approach points out a different rationale under state immunity, leading to major practical consequences in terms of the assessment of international jurisdiction.

Given the centrality of law in the creation, decision-making, and impact of the United Nations Security Council, the deliberative discourses among Security Council Members, and the necessity for China to articulate its reasons publicly for its actions within the Security Council, the roles that China plays within the Security Council illuminate and clarify its approaches to the current international legal order. This article explains how law serves as a constitutional–normative framework within which the Security Council must function, followed by a discussion of how the Security Council in turn may serve as a locus of deliberative discourses that delineate, influence, and constrain its members’ state behaviours. It challenges the view that law plays a limited role on matters of international security by exploring China's voting behaviour in the Security Council and the arguments that it has proffered. It also discusses how China may respond to a draft Security Council resolution aimed at its conduct other than simply by vetoing it, and how it has taken a proactive role in the maintenance of international peace and security through the Security Council.

In this article, I argue that two prominent frameworks for evaluating and developing international criminal law (ICL) can be reconciled into a new framework that absorbs the best insights of its predecessors. We cannot simply transplant fundamental principles from national legal systems, because they may be inapposite in the unusual contexts faced by ICL. However, this novelty does not mean that we are free to simply abandon culpability, legality, and our basic underlying commitment to the individual. Instead we must explore what that deontic commitment might entail in these new contexts. My primary aim is to show the possibility of bridging the apparent normative impasse. I also briefly sketch out the proposed framework, and suggest that it can generate new questions for current controversies in ICL. As an interesting by-product, the examination of ‘abnormal’ criminal law can raise new questions for general criminal-law theory, by exposing subtleties and parameters that we might not have noticed in a study of ‘normal’ contexts.

This article highlights the challenges to the operation of domestic courts as agents of development of the laws of armed conflict and particularly of the law on the conduct of hostilities. The first part of the article concerns the spillover from various branches of the laws of armed conflict to the law regarding the conduct of hostilities. The second part of the article addresses the structural constraints on domestic courts in deciding issues relating to the laws of armed conflict, focusing on the conflict between their role as guardians of national interests and their judicial commitment to protecting the individual. The cumulative effect of these characteristics of domestic litigation suggests that the laws of armed conflict, and particularly the law on the conduct of hostilities, are not necessarily well served by development through domestic jurisprudence.

This article addresses the question stated in its title by considering not only the role of national courts but also the roles of national legislatures and executives. That emphasis is called for because most of international law most of the time operates through national, rather than international, institutions and in particular through the executive and the legislature. Before I get to those national institutions, I consider two undisputed propositions of law, the varying characteristics of rules of international law and the impact of those characteristics on different national constitutional and legal systems.

The rules of customary international law governing when a state or international organization will be held to have committed an internationally wrongful act, thereby engaging its international responsibility, are relatively well settled in international practice and jurisprudence. A key point of reference in this regard is the work of the International Law Commission on State Responsibility and Responsibility of International Organizations. The present paper examines relevant practice of domestic courts from a variety of jurisdictions which have relied upon the ILC's work, and discusses the extent to which domestic courts may make a contribution to the further development of the rules relating to engagement of responsibility. It concludes that, due to the operation of rules of, inter alia, immunity and non-justiciability, the principal instance in which domestic courts may actually apply the rules of international law is where it is the responsibility of the forum state which is in issue.

On 19 November 2012, the International Court of Justice gave its judgment concerning the Territorial and Maritime Dispute between Nicaragua and Colombia. This judgment includes several important issues which need serious consideration, such the as legal status of maritime features, the interpretation and application of Article 121 of the UN Convention on the Law of the Sea, the methodology of maritime delimitations, the role of proportionality in maritime delimitations, and the impact of the judgment upon third states and effect of Article 59 of the ICJ Statute. Focusing on these issues, this contribution aims to analyse the judgment of 2012 from a viewpoint of the international law of the sea, in particular, the law of maritime delimitation.

It is commonly agreed that international criminal law (ICL) is a ‘hybrid’ legal culture, which mixes the legal traditions of the common law and civil law. However, the precise nature of this legal culture remains a contentious legal and theoretical issue. The paper identifies the two dominant models of ICL within these debates as either a clash of cultures or a sui generis system, and shows how neither satisfactorily engages with the concept of legal culture itself. To address this problem, the paper develops a new account of ICL as a global legal culture. The paper first identifies the distinctive ‘cultural logic’ of ICL, drawing on the example of recent developments in sexual violence offences. It then examines how ICL takes a global legal form, which ‘globalizes’ liberal legal culture. Finally, the paper shows how this process of making the legal culture of ICL ‘global’ creates its cultural contradictions, but also enables the possibility of making a new legal culture at the international level.

This article sets out to examine the legal nature of ceasefire resolutions issued by the United Nations Security Council. While it has become common practice for the Council to issue calls or demands for ceasefires, their legal nature – and in particular whether they are legally binding – remains unclear. Furthermore, given the ubiquity of non-international armed conflict, there is an additional challenge with regard to the legal effect of such resolutions upon non-state armed groups. The article provides an analysis of these issues and concludes with a potential way forward.

This article examines the role of domestic courts in addressing questions of international law concerning the content and implementation of state responsibility. Practice shows that domestic courts only play a limited role in developing the international law of state responsibility. This is partly due to the limited number of cases decided by domestic courts. Furthermore, the practice of domestic courts is quite disparate, reducing their value in generating consistent practice. There is also a general inclination of domestic courts to apply remedies under municipal rather than international law, which reduces their significance as agents of international law. It is only in exceptional cases that domestic courts may contribute to clarifying controversial norms and support the further development of international law. Domestic courts may furthermore take on the task of fine-tuning international norms on state responsibility. Probably the most important role domestic courts may play in applying secondary rules of state responsibility is that of strengthening the effectiveness of the international legal system and its individual rules.

In 2011 three Congolese ICC defence witnesses applied for asylum in the Netherlands. A decision has not yet been made. This article argues that three outcomes of their procedures are most likely: (i) an asylum permit is granted, (ii) a permit is denied, or (iii) the applicants are excluded from refugee protection on the basis of Article 1(f)(a). All scenarios would have serious practical and political consequences for the ICC, the Netherlands, and the DRC. There is a limited, but real, chance that future defence witnesses will also apply for asylum. This mere threat might already seriously hamper future co-operation between the ICC and states parties. More practical and political dilemmas stemming from a lack of harmonization between international criminal law and principles of international protection lie ahead, since a coherent scheme on how to deal with ICC defendants whose case has been rejected in the pre-trial phase, who have been acquitted, or who have served their sentence and cannot be refouled to their country of origin has thus far not been realized. As it stands the international community does not have an answer to this fundamental system error yet.

This article traces the place and development of diplomatic asylum in international law in close connection with the more specific questions raised by the case of Julian Assange, who was granted asylum in the Ecuador embassy in London on 16 August 2012. After discussing the historical rise and decline of diplomatic asylum, the article reviews the current status of diplomatic asylum in international law and its implications for the triangular legal relationship between the United Kingdom, Ecuador, and Mr Assange. The article submits that, although there would not seem to be a title in general international law or human rights law for Ecuador to grant asylum to Assange, there is no obvious legal route for the United Kingdom to terminate the asylum. The fate of Assange resembles that of a long series of historical precedents where diplomatic asylum resulted in protracted stays. Although this may seem an unsatisfactory result from the perspective of international law, the uneasy balance between territorial sovereignty and diplomatic inviolability also engenders incentives to avoid disputes or to resolve them through diplomatic channels.

The trial of Adolf Eichmann was poorly received by many contemporary observers, who felt that it bent the law beyond recognition in several key areas. With the renaissance of international criminal law in recent decades, the handling of difficult issues by the District Court of Jerusalem and the Supreme Court has been shown to fare rather well. The understanding of the relationship between crimes against humanity and genocide by the Israeli courts, and their response to the charge of retroactive criminality, to the consequences of the kidnapping, and to claims that the tribunal lacked impartiality, have also stood the test of time. Perhaps most important of all, the Eichmann decisions actually moved the law forward on the question of universal jurisdiction, effectively setting aside the narrow jurisdictional frame set by the 1948 Genocide Convention. Critics at the time of the judgments, possibly influenced by the famous but harsh commentary of Hannah Arendt, were much too negative in their assessments.

Since the start of its operations 10 years ago, the International Criminal Court has dealt with a number of challenges to the admissibility of cases before it. Some of the challenges were mounted by territorial states that had jurisdiction over the cases. Others were mounted by accused persons. The Court, acting on its own initiative, has, on a number of occasions, also considered issues of the admissibility of cases before it. It has done this, in the main, at the pre-trial stages of proceedings. Some of the cases arose out of state or Security Council referrals. Others arose out of the Prosecutor's initiated investigations. In the course of dealing with these matters the Court has endeavoured to strike a balance between the states’ right to exercise their sovereignty through national proceedings, on the one hand, and the interests of the international community to ensure that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’, on the other. In the process of doing so the Court has also developed some practices and generated an impressive body of jurisprudence, the subject of this article. The jurisprudence evinces the Court's readiness to assume jurisdiction over a case in situations where there is clear inaction on the part of the national authorities. The article, which is a critical exposé of that jurisprudence, endorses this stance as a veritable antidote to impunity for atrocity crimes.

This keynote address delivered to a Conference on Evidence in International Criminal Tribunals at University College Dublin in November 2011 considers how differently evidentiary issues are dealt with by international criminal tribunals from domestic tribunals. It is argued that, although there are jurisdictional differences affecting what international prosecutors have to prove before international criminal tribunals, many of the problems and difficulties that beset international tribunals are also to be found in domestic tribunals and both types of tribunal have similar duties and issues to grapple with.