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 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?

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.

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.

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.

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 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.

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 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.

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.

The equal application of international humanitarian law (jus in bello) to all parties to an international armed conflict is a cornerstone principle of jus in bello. In his article, Professor Mandel casts doubt on the legal basis of this principle. Reacting to this claim, this contribution demonstrates that the ‘equality of belligerents’ is a principle firmly grounded in both conventional and customary international law. Moreover, its legal force withstands the test of international jurisprudence, including the International Court of Justice's controversial Nuclear Weapons advisory opinion.