Before the 2015 annual meeting of the European Society of International Law, participants were notified of a ‘women in international law’ happy hour for exchanging ideas on ‘the improvement of representation of women’. At the convivial and well-attended event in Oslo, organizers thanked the men who were present, remarking that their support was not only welcomed but also necessary. This theme of inclusion resurfaced in side conversations about past conference panels on gender that noted the supportive role of senior male academics in audiences comprised primarily of women. Gender was mainly discussed along a single axis of male/female rather than intersectionally. Other categories of identity, such as ethnicity and nationality, remained on the sidelines of this event, which focused on the role of women within the field.

This article argues that contemporary international lawyers all sing the same critical refrain but few have really confronted and integrated the critical attitude deployed in From Apology to Utopia. After the denial and perplexity of the first encounters with Martti Koskenniemi's work, international lawyers came to feel that they have domesticated the perplexity provoked by it. They now all enthuse about the new self-reflectivity that their victorious struggle with From Apology to Utopia supposedly allowed them to acquire. In sum, the contemporary self-proclaimed self-reflective international lawyers, after reading From Apology to Utopia, have returned to business as usual, continuing to let the discipline's vocabulary decide on their behalf.

A certain body of mythology has emerged in recent years around Martti Koskenniemi's From Apology to Utopia (FATU). At its heart lies a group of received wisdoms that tell us that FATU should essentially be considered a work of postmodern scholarship, that it provides a typical illustration of the so-called deconstructivist approach, and that its single most significant contribution to the field of international legal theory lies in its discussion of the subject of legal indeterminacy. In this article, I seek to challenge and displace this set of narratives, by excavating and restoring to the surface FATU's original intellectual project: a highly ambitious attempt to revive the traditional enterprise of ‘legal science’ by marrying Kelsenian legal positivism with Saussurean structuralist semiotics. In doing so, it succeeded in developing a set of analytical idioms and reasoning protocols that gave the international law profession not only a reason but also the necessary intellectual materials to revolutionize its day to day understanding of the essential character of international legal practice. Thus, far from being a manifestation of any kind of postmodernist sensibility, FATU, I am going to argue, represents, in fact, the exact opposite of it.

Martti Koskenniemi's From Apology to Utopia is (rightly) considered a classic in international legal theory. The study tracks the oscillation of international legal argument over hundreds of years to reconcile seeming incongruencies: legal reasoning does not provide determinacy, but it brings weighted direction to political conflict; legal categories are amorphous, yet also an autonomous field of study. Though not commonly engaged, the methodological and theoretical posture of the book is significantly informed by a theory of history. This article focuses on this historical element within the text as a means to analyze some of its central claims and situate it within a broader sociology of knowledge production particular to late twentieth century legal academia.

This contribution to the Symposium celebrating the Twenty-fifth Anniversary of Martti Koskenniemi's From Apology to Utopia explores the relevance of the book for contemporary theorists of the international world. In doing so, the article puts Koskenniemi's classic in a contest with John Yoo's recent book, Point of Attack. The purpose in doing so is three-fold. First, it is to illustrate the contemporary use of Koskenniemi's structuralist method. Second, it is to show how the use of the method, with its attendant reliance on modes of legal thought, might give pause to international thinkers seeking to reinvigorate particular structures of argument from the nineteenth century. Third, the two books are put into conversation in order to highlight what I believe to be the very productive results of the structuralist method that have, for the most part, been dormant for a generation.

In this article I excavate and critique two dominant images of the international lawyer that emerge from the oeuvre of Martti Koskenniemi. In doing so, I hope to briefly shake the faith critical international legal thought so often invests in the potential of the subject. The first image is of the critical subject that emerges from From Apology to Utopia. She also happens to be a projection of the critic, governed by both elitism and unhappiness, for whom freedom is always both a constant and overarching possibility, and yet always embodied in a fleeting moment. By way of critique, I question whether this critic(al subject) may not unwittingly embed the very aspects of liberal legal and political thought that she seeks to challenge. The second image is of the professional lawyer, left on the shores of pragmatism. She emerges from my reading of Koskenniemi's The Gentle Civilizer, the 2005 Epilogue and his Kantian texts. She is constructed as Koskenniemi's critique is domesticated, taking a last, and perhaps futile, refuge in an ethics that is needed to buttress an identity which can aid international law's moral regeneration. Koskenniemi's writings urge today's international lawyers to put their sense of identity into question; this article asks which identities (and their possibilities) he embeds as he does so.

This essay is a friendly response to the colloquium on From Apology to Utopia (FATU). It restates the way critical research examines the exercise of power through analysis of (legal) language. Attention is directed especially to the empowering and enchanting effects of the law. The main point has to do with the continuing power of structuralism as a form of legal analysis.

The present symposium follows on from a forum held at the University of Oslo on 11 September 2015 during the 11th Annual Conference of the European Society of International Law. This forum, sponsored by the ESIL Interest Group on Peace and Security, was particularly successful and led to a very interesting debate between the members of the European Society of International Law. The Leiden Journal of International Law has today the pleasure to publish, after the usual process of peer review, the complete and updated versions of the four papers presented during this event.

The legal argument of intervention by invitation has been used by all 11 states intervening in Iraq (nine members of the US-led coalition, Russia, and Iran), by Egypt for its airstrikes against ISIL in Libya, and by Iran and Russia for their interventions in Syria. To the extent that these consensual military interventions targeted ISIL and other UN-designated terrorist groups, their legality has not been challenged by any state. Strong criticisms marked nonetheless military operations undertaken by invitation, but not targeting ‘terrorist groups’, such as the alleged Russian strikes against the ‘Syrian moderate opposition’. The arguments advanced by intervening states seem to confirm the purpose-based approach of intervention by invitation. They did not claim a ‘right to intervene in a civil war’, but relied on the existence of both a request by the government and a legitimate purpose: fighting ISIL and other terrorist groups. The different reactions also show unwillingness by the international community to recognize a general right of intervention in a civil war. Turning to the strikes of the US-led coalition in Syria, it is impossible to rely on the legal basis of ‘intervention by invitation’. The controversial theory of ‘passive consent’ could be used to some extent – but not after September 2015 when Syria denounced these strikes as a ‘flagrant violation’ of its sovereignty. The current efforts of the international community to find consensual solutions to the dramatic conflicts in Syria, Libya, and Iraq could offer new possibilities of consensual interventions against ISIL and other terrorist groups.

On 23 September 2014, the United States of America sent a letter to the Security Council justifying the launch of an air campaign against the Islamic State of Iraq and the Levant (ISIL) on Syrian territory. In this letter, the US referred to a formula that appeared a few years ago in certain scholarly writings: the ‘unwilling or unable’ test. The aim of this article is to show that this test has not been accepted by the international community of states as a whole in the Syrian case. It is also to stress that such an acceptance would lead to a radical transformation of the jus contra bellum regime, one that a large majority of states is probably not ready to accept.

This article examines the law of self-defence as applied to non-state attacks in light of the coalition air strikes against ISIL in Syria. It critiques the two current interpretations of the law of self-defence – one based on attribution and the other on the ‘unable or unwilling’ test – for failing to address adequately the security threat posed by non-state actors or for not addressing convincingly the legal issues arising from the fact that the self-defence action unfolds on the territory of another state. For this reason, it proposes an alternative framework which combines the primary rule of self-defence to justify the use of defensive force against non-state actors, with the secondary rule of self-defence to excuse the incidental breach of the territorial state's sovereignty.

This article examines several questions relating to international humanitarian law (jus in bello) with respect to the conflicts against the Islamic State. The first question explored is the classification of conflicts against the Islamic State and the relevant applicable law. The situation in Iraq is a rather classic non-international armed conflict between a state and a non-state actor with third states intervening alongside governmental forces. The situation in Syria is more controversial, especially with respect to the coalition's airstrikes against the Islamic State on Syrian territory. If the Syrian government is considered as not having consented to the coalition's operations, then, according to this author's view, the coalition is involved in two distinct armed conflicts: an international armed conflict with the Syrian government and a non-international armed conflict with the Islamic State. The second question analyzed in the article bears on the geographical scope of application of international humanitarian law. In this context, the article examines whether humanitarian law applies: in the entire territory of the state in whose territory the hostilities take place, in the territories of the intervening states, and in the territory of a third state.

The ICJ has confirmed that, on the one hand, the customary status of the general rule of treaty interpretation in the Vienna Convention on the Law of Treaties makes it applicable to the constituent instruments of all international organizations, but, on the other hand, constituent instruments are ‘treaties of a particular type’ with special considerations. This article examines the resultant implication that the Court adopts an approach to constituent instrument interpretation that supplements or modulates the approach provided for in the Convention. In doing so, it examines both the Advisory Opinions that respond to direct questions of constituent instrument interpretation, as well as Opinions and Judgments in which a question of constituent instrument interpretation is incidental to a dispute with respect to another treaty or general international law. The article identifies nine interpretative propositions used by the Court: (1) sufficiently clear text is conclusive; (2) the text cannot be nullified; (3) working documents (travaux préparatoires) afford auxiliary interpretation; (4) consistent practice precludes contrived interpretation; (5) to be consistent, practice need not be unanimous; (6) consistent institutional practice is determinative; (7) purpose can supplement text, but cannot contradict practice; (8) practice is interpretation, unless institutionally overruled; and (9) interpretation cannot be gratuitous. It is argued that to the extent the Court diverges from the Convention, it in fact allows for a more efficient and effective approach to constituent instrument interpretation and accords institutional practice particular prominence.

In 2012, James Stewart published an article in this journal. The piece – ‘The End of “Modes of Liability” for International Crimes’ – argued for the abolition of accomplice liability in international criminal law and the adoption of a unitary model of participation in crime. This article argues that Stewart's proposal is flawed. As a matter of moral responsibility, the distinction between principals and accomplices follows from the recognition of individuals as moral agents. Turning to ordinary criminal responsibility, neither practical benefits nor expressive benefits nor the mitigating effects of the distinctive institution of criminal sentencing justifies the abolition of the distinction between principals and accomplices. Moreover, despite the collective nature of many international crimes, international criminal law ought to strive to accurately differentiate, in the attribution of responsibility, among participants. Only a differentiated model of participation can accurately and defensibly capture the different ways that individuals contribute to wrongdoing.

On 7 March 2014, Trial Chamber II of the International Criminal Court (ICC) convicted Germain Katanga for war crimes and crimes against humanity. Katanga's conviction is based on the concept of common purpose liability as regulated in Article 25(3)(d) of the Rome Statute. This liability theory establishes criminal responsibility for wilfully or knowingly contributing to the crimes of a group of persons who act together pursuant to a common purpose. The ICC regards common purpose liability as a residual liability theory, which provides for a lower level of blameworthiness than principal forms of criminal responsibility, such as joint perpetration. This article appraises the residual and inferior status of common purpose liability by comparing the ICC's application of common purpose liability and joint perpetration. The comparison makes clear that common purpose liability in theory stipulates lower actus reus and mens rea standards than joint perpetration. However, in practice the ICC applies the requirements of both these liability theories in a context-dependent way in interplay with the particular facts of individual cases. It can therefore not be concluded in general terms that common purpose liability by definition constitutes a less serious type of criminal responsibility than joint perpetration. Instead, it is preferable to adopt a flexible approach, which recognizes that common purpose liability covers a variety of conduct entailing different levels of blameworthiness.

The present article revisits international criminal law as a tool for sanctioning the most patent abuses against migrants. Although deportation is traditionally considered as an attribute of the state inherent to its territorial sovereignty, this prerogative may degenerate into an international crime. The prohibition of deportation has been a well-established feature of international criminal law since the Nuremberg trials following the Second World War. This prohibition has been further refined over the past 15 years by an extensive jurisprudence of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court.

Against such a background, this article demonstrates that, in some circumstances, deportation may amount to a war crime, a crime against humanity or even a crime of genocide, depending on the factual elements of the case and the specific requirements of the relevant crime. This article accordingly reviews the constitutive elements of each crime and transposes them into the context of migration control. It highlights in turn that, although its potential has been neglected by scholars and practitioners, international criminal law has an important role to play for domesticating the state's prerogative of deportation and infusing the rule of law into the field of migration. The article concludes that there are reasonable grounds for asserting that a crime against humanity would have been committed in the Dominican Republic and Australia with regard to their deportation policy.