Taking up the torch from my fellow co-editors who have addressed substantive and methodological issues of international criminal law (ICL) in their contributions, I propose to turn to the current state and prospects of its scholarship. The moment is opportune for such a reflection. The questions raised by the production and dissemination of international legal scholarship were the leitmotif of past editorials and its (changing) role was chosen as the theme of the latest LJIL symposium. The professional functions of international legal scholars have been the subject of renewed interest and debate. To give an impulse to a similar debate in ICL, I will try to capture the zeitgeist of its academia and offer some observations on the positioning of scholarship vis-à-vis practice in ICL. Perspectives from this specialized field may enrich the existing conceptualizations of international legal scholarship and provide a new angle on its place within the profession.

As international law is widening in regulatory scope and intensity, it arguably suffers from a legitimacy deficit. This article conceives of this deficit as a deficit in possibilities to politicize, criticize, and contest international law-making proposals in the way a loyal opposition does in a domestic constitutional context: through the representation of relevant societal interests, the voicing of critique, and the safeguarding of alternative proposals for the future. The author of this article tries to bring together the current debate in political theory on the value of legitimate disagreement and dissent in political institutions and the ongoing discussion on the legitimacy of international law. Therefore, a concept of an institutionalized opposition for international law-making processes is developed, referencing authors such as Hannah Arendt and Claude Lefort. Next, the author analyses whether one can already find instances of an institutionalized opposition in international law – in parliamentary assemblies and in international agreements which are designed to present a legal–political counterweight to specific legal concepts and institutions.

This article evaluates the benefits of a ‘turn to narration’ in international legal scholarship. It argues that significant attention should be paid to the narrators who employ international law as a vocabulary to further their professional projects. Theories of unreliable narration help map consensus within international law's interpretive community in a manner that is acutely sensitive to point of view and perspective. The article examines the existence and extent of unreliable narration through a case study: the practice of targeted killing by the Obama administration in the United States. The struggle for control of the narrative, by narrators with different professional roles and cognitive frames, is ultimately a struggle for interpretive power, with the resulting ability to ‘kill or capture’ divergent narrative visions. Unreliable narration offers a critical heuristic for assessing how narratives are generated, sustained, and called into question in international law, while fostering reflexive inquiry about international law as a professional discipline.

The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to seabed resources in the Arctic Ocean. In this article, the authors look to the effect of scientific discourse on Commission authority. The authors argue that in addition to the conferral of its authority by the United Nations Convention on the Law of the Sea, the Commission draws its authority in the Arctic from the way its regulatory frameworks, aimed at containing or closing off disputes about jurisdiction and sovereign rights, correlate with discursive practices used by transnational networks to reach scientific agreement.

This article considers the law of maritime delimitation as applied by the Arbitral Tribunal in the 2014 Bangladesh v. India case. The dispute concerned the delimitation of the maritime boundary between the two states in the north-eastern part of the Bay of Bengal. The Tribunal's Award covers several important issues which require careful examination, such as the land boundary terminus, the delimitation methodology, the role of objectivity, predictability and transparency in maritime delimitation, and the impact of the established case law on the present delimitation procedures. The commentary analyses the Award from the viewpoint of the law of maritime delimitation and traces how the Tribunal applied and developed the methodology used in maritime delimitation. The key points where the Award advances the law of the sea concern the concavity of the coast as a relevant circumstance and the creation of grey area. The Tribunal made significant pronouncements on the continental shelf, especially, beyond 200 nm. It confirmed the concept of a single continental shelf and reasoned that legal regimes of the EEZ and the continental shelf are independent and separable. However, the creation of another grey area met with strong disagreement from Dr Rao. The author considers the Award and the Dissenting Opinion to argue that the adjustment of the equidistance line raises certain concerns and that the creation of grey area is permissible under UNCLOS.

The decision of the US Supreme Court rendered in NML v. Argentina has enabled the vulture funds to enforce in full their claims against the payments to be made by Argentina in favour of those holders who had tendered their bonds under a previous exchange offer. This scenario may have a disruptive impact on the functioning of the financial markets and endanger the restructuring processes of sovereign debt. The race to the courts by the vulture funds could be stopped under the UNCTAD Principles on Responsible Financing where the behaviour of those creditors who acquire debt instruments of sovereigns in distress and remain aloof from a restructuring to secure preferential treatment is marked as abusive. Unfortunately, so far the legal status of this abusive behaviour is unable to overturn the interpretation of the pari passu clause under New York law given by the US Federal Courts which stands at the base of the problem. To overcome this impasse the suggestion is to insert in the UN proposal of a multilateral legal framework for sovereign restructuring processes a specific provision qualifying as overriding a mandatory restructuring plan approved through a certain quorum which has received certification by the IMF. This qualification would serve the purpose of applying the plan to all creditors, and not just to those who register under the process. Moreover, this qualification would be considered as part of the public policy of the states participating to the UN proposal so as to block the enforcement of judgments rendered in non-participating fora.

This article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

On 3 February 2015, the International Court of Justice delivered its Judgment on the merits of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) case. This Judgment concludes the Court's involvement with allegations of state responsibility for genocide in the Balkans, which has spanned more than two decades since Bosnia brought a case against Serbia under the Genocide Convention in 1993. The many judgments and separate and dissenting opinions in the Bosnia and Croatia genocide cases have not only addressed the elements of the crime of genocide itself and the obligations imposed by the Genocide Convention, but have also considered jurisdictional questions, matters of state succession, and the relationship between the International Court of Justice and the work of the ad hoc tribunals, in particular the International Criminal Tribunal for the former Yugoslavia.

The Leiden Journal of International Law has organized a mini-symposium about the Croatia Judgment in order to address this important decision. The six articles in this symposium address several of the main issues raised by the judgment. A brief summary of the judgment follows.

When it first encountered the Genocide Convention in its 1951 Advisory Opinion, the International Court of Justice recognized that the treaty reflected the ‘most elementary principles of morality’. Its provisions were to be read broadly, in light of the Convention's transcendent object and purpose. This expansive approach stands in contrast with the narrow interpretation of Article IX in the recent Judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) case. This article is a commentary on the retroactive obligation to punish genocide under the Convention with regard to acts occurring prior to its entry into force for that state. It concludes that the Court's narrow interpretation of its jurisdiction ratione temporis raises wider questions for its contemporary jurisprudence, namely, whether it will interpret human rights treaties enshrining fundamental values any differently than other international instruments.

In the decision on the second Genocide case (Croatia v. Serbia) the ICJ did not deviate from its ruling of 2007 (Bosnia-Herzegovina v. Serbia and Montenegro) in matters of evidence. A comparison between the two cases nevertheless shows subtle but interesting nuances. Whereas in the first Genocide case the Court was confronted with a ICTY finding that a genocide had indeed been committed in Srebrenica in July 1995, in the present case the ICTY Prosecutor had not even indicted any Serbian or Croatian organ of such a crime. The ICJ was able to find the actus reus of genocide in many instances, both on the part of Serbia and Croatia, but it found that neither party had been able to prove the existence of the mens rea, either by relying on a pattern of conduct, or even by relying on the transcript of a governmental meeting. This throws a disquieting light on the actual capacity of the Court to deal with claims of commission of genocide, as distinguished from claims of lack of prevention or repression.

The long-awaited verdict of the International Court of Justice in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case between Croatia and Serbia brought to an end the speculations as to whether or not a finding of genocide would be reached. After lengthy considerations on the genocidal actus reus, the Court dismissed all the claims of genocide, based on the lack of genocidal intent. If this conclusion is perfectly in line with established law and case law, its wider readability and acceptability outside of the legal microcosm is perhaps doubtful. How can a judgment which recognizes that acts falling within the list of proscribed genocidal acts have been committed but which then refutes their qualification as genocidal due to a lack of specific intent be explicable to those who lost their loved ones in what they feel was an enterprise of destruction?

The International Court of Justice's (ICJ) decision in the case of Croatia v. Serbia raises fundamental questions about the nature of genocidal intent. While the Court was careful not to make a clear departure from established case law on the matter, its emphasis on elements such as ‘pattern’ and ‘scale’ – at the expense of the role of individual intent – indicates that the majority on the bench adopted an interpretation which brings the legal concept of genocide closer to an abstract event of mass atrocity than to an act capable of commission even by select individuals. That, however, is an understanding which is not only alien to the traditional interpretation adopted by international criminal tribunals, but also unjustifiable under the established law of state responsibility. This article considers various aspects in the judgment which invite critique in that regard, but also analyses the way in which the ICJ has dealt with the coexistence of intent and certain motives – a crucial aspect of the case which has already been object of some controversy.

This article critically examines the concept of ethnic cleansing in light of the ruling of the International Court of Justice (ICJ) in Croatia v. Serbia. It suggests that the lack of overt reference to it in the Genocide Convention constitutes a significant lacuna in judicial recognition and protection of atrocities committed in both the Former Yugoslavia and more generally, which the ICJ categorically refused to address. Having examined how the ICJ attempted to conceptualize ethnic cleansing as evidence of both the actus reus of genocide (particularly in relation to Article II(c) of the Convention) and its mens rea, the article then critically assesses the Court's reasoning in its refusal to rule that a violation of the Convention had taken place in relation to deportation and forcible transfer. The article then concludes by contending that the Court simply failed to provide a much-needed and workable precedent to properly include ethnic cleansing within the legal and factual matrix of genocide.

This article examines the approach followed by the International Court of Justice in Croatia v. Serbia in relation to rape and sexual violence as acts of genocide under Article II of the Genocide Convention. It is argued that this decision leaves much uncertainty with respect to the elements constituting the actus reus of genocide. First, the Court has narrowed the interpretation given by the ad hoc tribunals to what constitutes ‘serious harm’ under Article II(b). Second, it has introduced an objective requirement, which is in fact unnecessary under Article II(c) of the Convention. Third, it seems that, according to the Court, in order for rape and sexual violence to be regarded as genocidal conduct within the meaning of Article II(d) of the Convention, it is necessary to prove that such conduct did in fact prevent births at least within a part of the group.

The article focuses on one of the most intriguing and, at the same time, controversial issues of international criminal law: whether the state policy requirement should be considered as a constitutive element in core international crimes. Adopting a criminal policy perspective, my intention is to contribute to the ongoing discussion by offering a doctrinal and criminological corroboration of the position that answers in the affirmative. Nevertheless, I am not necessarily promoting a normative choice entailing the amendment of the definition of core international crimes, but I rather call for a policy choice of focusing on cases that presume a state policy component.

The aim of this article is to show that the concept of perpetration by means as it appears in Article 25 of the Rome Statute of the International Criminal Court (Rome Statute) accurately reflects liability for crimes committed by high-level perpetrators who exercise control over the actions of the lower-level (fully responsible) perpetrators. Finding the proper mode of liability in these cases is crucial to the International Criminal Court's (ICC) mission of ending impunity for serious international crimes. While international criminal law may be unlikely to deter criminals, especially heads of state and other powerful leaders, it can provide some sense of justice for the victims by convicting and punishing those responsible for their suffering. As such, the functions of international criminal law are to a large extent expressive and retributive. At the same time, it is important to keep the focus of international criminal law on individual responsibility of the perpetrators. It is, therefore, crucial to find proper labels that reflect culpability well. I hope to make a contribution to this search in what follows.

This article is divided into five sections. First, I provide a background to the move, recently articulated by the ICC, from the concept of joint criminal enterprise (JCE) to that of indirect perpetration (and indirect co-perpetration) (section 2). Second, I analyse the original presentation of this idea by the German jurist Claus Roxin (section 3). Third, I examine the application of this concept by the German courts, particularly in the 1994 trial of three high level GDR officials held liable as indirect perpetrators for the killings (carried out by the border guards) of refugees at the East/West German border (section 4). Then I present a recent (Winter 2011) proposal by Jens Ohlin to abandon both JCE and indirect perpetration in favour of another mode of collective liability based on joint intentions (section 5). Finally, I defend the concept of indirect perpetration against Ohlin's criticisms, arguing that it offers a more accurate way to label the conduct of high-level perpetrators who carry out crimes by means of direct perpetrators who are themselves liable (section 6).

In international criminal tribunal discourse, appeals to history and legitimacy are omnipresent. This article addresses the widespread practice of combining these appeals into one narrative. It analyses how international prosecutors engage with justifying the legitimacy of trials through the invocation of a tribunal's own history. The scrutiny of such ‘auto-histories’ as a specific form of history-telling illuminates an overlooked dimension of trials as fora for writing history. The opening statement is a perfect opportunity for constructing and communicating auto-histories. A comparative study of opening statements at the International Military Tribunal, the Special Court for Sierra Leone and the International Criminal Court reveals a recurrent, self-justifying narrative where both rootedness in history and a break with the past are key to singing the tribunal into existence as a crucial mechanism in the transition from chaos to peace. The connections between auto-histories at different tribunals show how legal practitioners discursively contribute to constructing the international criminal law's identity by relying on both origins and future.