As a result of the extension of the jurisdiction of the Court of Justice of the European Union over the former third pillar (Police and Judicial Cooperation in Criminal Matters), several cases were referred to the Court for interpretation, inter alia, of the dispositions of the Schengen Convention dealing with criminal matters, especially the ne bis in idem principle. This principle was also addressed in the case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the Supreme Court of the United States. While addressing the problem at international level, this article focuses principally on the case law of the Court of Justice of the European Union and the European Court of Human Rights in the field of the ne bis in idem principle, concisely presenting the legal framework, findings of the Courts, and some conclusions on the interpretation of the principle. The study also analyses the absence of uniformity in interpretation and the use of different criteria in addressing identical situations by different courts, or even by the same court, concluding on a (seemingly) fortunate approximation in interpretation at European level.

The concept of jurisdiction is a relatively undertheorized category of international law. Mainstream international law scholarship advances an ahistorical and asocial account of the rules of jurisdiction in international law. The present article contends that any serious understanding of the categories and rules of jurisdiction, in particular that of extraterritorial jurisdiction, calls for deep appreciation of the evolving material structures over time. It argues that the key factors that have influenced the evolution and development of the doctrine, rules, and practices of jurisdiction are the emergence of the modern state, capitalism, and imperialism. In order to appreciate this contention there is a need to undertake on the one hand a genealogical analysis of modern state and capitalism and on the other hand problematize the categories ‘territory’ and ‘extraterritorial’. The internal relationship between capitalism and imperialism has meant that, despite the territorial organization of the international system, a process of harmonization of legal rules has taken place across geographical spaces in both colonial and postcolonial eras. The outcome is a critical loss of policy and legal space for nations of the Global South. In the colonial era the outcome was achieved through legislation in the instance of colonized nations and through capitulation regimes in the case of semi-colonies. The strategy of advanced capitalist states in the postcolonial era for achieving harmonization of laws has been multi-layered and multi-dimensional. The article concludes by touching on two models of reform of the rules and practices of jurisdiction viz., liberal and subaltern internationalism.

The implementation of the provisions of treaties and conventions is a duty arising from conventional and customary international law. In the case of the Rome Statute this duty is implied, since only by fulfilling it will states be able properly to comply with the obligation of complementarity. Moreover, the entire Statute is based on the assumption that states parties will in most cases be able and willing to investigate and prosecute crimes. Implementing the Rome Statute in Latin America is complicated by gaps existing in domestic legislation and the special characteristics of the legislation of civil law states.

The proposed establishment of the Special Court for Sierra Leone is a valiant effort to end impunity for the egregious crimes that were committed during the Sierra Leonean civil war. Nonetheless, the Special Court – which will have jurisdiction over crimes against humanity, war crimes, and various offences under Sierra Leonean national law – will have a number of major hurdles to cross in order to fulfill its mandate. Most notably the Court as currently empowered lacks the ability to induce the authorities of third states to comply with its orders and has limited temporal jurisdiction: thereby allowing a number of accused to escape justice. More alarmingly the on-going discussions within United Nations Headquarters concerning the financing of the organisation has substantially eroded the credibility of the institution, especially as large numbers of potential accused have been languishing in jail for significant periods without being formally charged.

This article provides an assessment of the replacement of the UN Commission on Human Rights by the Human Rights Council, with a view to ascertaining whether the human rights architecture of the United Nations is now in better or worse shape. Institutionally, it is unique in that an international organ is dismantled and replaced by a new one for the sake of achieving greater effectiveness. What are the chances for success? For a proper assessment, the article first examines the status, functioning, and falling into disgrace of the UN Commission on Human Rights and, second, reviews the establishment of the new Human Rights Council as part of the UN reform process and identifies the new features of the Council compared with the previous Commission. Third, it discusses the work of the Council in its first year, in particular the extensive June 2007 decision on institution building of the UN Human Rights Council. The article concludes that the Council had a far from fresh and easy start, but that its establishment and functioning so far are not a radical departure from the acquis of the UN human rights regime. The first years of the Council are crucial for solid institution building and functioning credibly in an action-oriented way. The first members on the Council bear the heavy responsibility of seizing this historic opportunity.

The GATT 1994 and the GATS contain separate multilateral rules on trade in goods and services. The question arises as to whether the GATT 1994 and the GATS are therefore mutually exclusive. This paper argues that the GATT 1994 and the GATS should be mutually exclusive in the application of their respective obligations to the specific aspects of any given measure. The paper offers a test, based on a similar test applied under EC law, to determine which of the agreements should apply to the specific aspects of any given measure where it appears to affect both trade in goods and services.

With the launch of the UN International Decade for Water on 22 March 2005, awareness is raised in the international community of the growing demand and scarcity of water for people throughout the world. Water is a particularly scarce resource in both Israel and the Palestinian Territories. The use of the water resources of the West Bank and Gaza has been part and parcel of the Israeli–Palestinian peace negotiations. With the beginning of new peace negotiations under Palestinian President Mahmud Abbas, the topic of water and its allocation to Palestinians and Israelis is back on the negotiation table. The present article will point to the water crisis in Israel and the Palestinian Territories and analyse core provisions of international law which govern the use of water resources. Finally, it will outline how an allocation of water rights according to principles of international law could take place.

This article discusses the Rwandan Law 18/2008 on genocide ideology in the light of international human rights standards. In order to put the genocide ideology law into context, it sketches a brief overview of the post-genocide scenario. Because of the influence that provisions restricting freedom of expression aimed at fighting negationism might exert on testimonies during genocide trials, it pays particular attention to the transitional justice strategies adopted in Rwanda. Finally, it assesses the law on the genocide ideology against the background provided by the measures implemented in some European countries to deal with the phenomenon of negationism.

Differing strategic priorities are only the beginning of the dispute over the International Criminal Court. Americans will not abandon their traditional constitution, as submission to the ICC would require. European states have already subordinated their national constitutions to a German-dominated federation. Americans do not accept international monitors in fighting against evil. Europeans are drawn to relativizing abstractions. For Germans, the ICC promises to “overcome the past,” by licensing German judges to try Americans and Israelis for war crimes. Europeans may feel obliged to fall in step with this latest German project. The US still has the moral self-confidence to resist it.

This editorial explores some methodological difficulties that might be faced by the practice of the critique of international criminal law (ICL). It more particularly explores what it might mean to do an ‘internal’ critique of ICL, both on a disciplinary level and an intra-disciplinary level. The editorial also addresses two important issues: (i) the ambiguities of the normative agendas of critical legal scholars; and (ii) the difficulty of dialogue between critical legal scholars and positivists. The editorial concludes with the fact that while disciplinary dialogue might not always be possible, it will always take place on a personal, more complex level, in the Leiden Journal of International Law (LJIL) as elsewhere.

In The Prosecutor v. Nahimana et al., the trial chamber of the International Criminal Tribunal for Rwanda sought to define the offence of ‘direct and public incitement to commit genocide’. This case note discusses the elements required in the opinion before turning to the way in which the trial chamber applied its tests. Case law from the European Court of Human Rights and laws from a range of national jurisdictions are used to contrast the approach adopted by the trial chamber in the so-called ‘Media Trial’.

The past few decades have witnessed a proliferation in the writings on risk and uncertainty. Led by the work of writers such as Beck, Luhmann, Ewald, and Giddens, scholars across the humanities and social sciences have been engaged in reflections on the ways in which our understanding of risk structure informs decision-making and the attribution of responsibility. One of the central topics in this body of literature is the transformation of the concept of risk in postmodern societies.

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.

Since its founding in 1963, the Organization of African Unity (OAU) has placed special emphasis on the preservation of the territorial integrity of African states. It has actively contributed to the development of relevant rules of international law, such as that of uti possidetis. Its opposition to the fragmentation of states has been absolute. However, the small island state of Comoros has challenged this state of affairs. The seemingly successful secession of ‘Anjouan’ has threatened the cherished principles of the OAU. This article critically analyzes the relationship between the principles at the heart of the dispute, those of self-determination and uti possidetis, and concludes that there is no legal proscription on the secession of ‘Anjouan’.

The articles in this issue of the Leiden Journal of International Law (LJIL), on the life and work of Alejandro Álvarez, comprise the first in a series of occasional special issues planned for the LJIL, each of which will focus on the work of a leading international legal scholar from the ‘periphery’. In launching the Periphery Series, the editorial board of the LJIL had in mind the goal of focusing attention on the role played by centre–periphery dynamics in international law. The centre–periphery formulation of international affairs owes its provenance to political economy, in which context it is primarily associated with dependency theory, Immanuel Wallerstein's world systems theory, and more recently, Paul Krugman's model of the geography of trade economics. In part, the Periphery Series invites scholars to confront questions of resource allocation, dependency, and geography highlighted by those bodies of work. In addition, however, this series seeks to foster wider engagement with the discursive function of centre–periphery oppositions in international law, in their many and various iterations.

This note examines the ICTY's judgement of 5 December 2003 in the case Prosecutor v. Stanislav Galić. It provides a general overview of the facts of the case and then reviews the chamber's discussion of the two war crime charges – attack on civilians and terror against civilians – and of the individual criminal responsibility of the defendant.

This article responds to five pieces published in the previous issue of the Leiden Journal of International Law, extolling the virtues of a new legal realism. I first express some doubts as to whether an awful lot can and should be expected from yet another new approach to the study of international law; earlier approaches widely heralded have quietly disappeared from sight, sometimes without leaving much trace. Subsequently, I discuss the extent to which the new international legal realism conceptualizes its notion of empirical reality, followed by a discussion on which interests the new insights spawned by new legal realism are to serve.

According to many international lawyers, humanitarian interventions without authorization by the UN Security Council are unlawful, but are sometimes morally justified. This discrepancy between legality and legitimacy has led to proposals for making international law more congruent with morality. This article examines the legitimacy of humanitarian interventions by discussing the major justifications by Walzer, Rawls, and Tesón. It argues that these justifications are open-ended: they fail to show that intervention should be limited to cases of violation of basic human rights, and do not categorically rule out intervention in the name of liberal and democratic rights. This is one more reason for being cautious with attempts to establish a law of humanitarian intervention.

This article examines the usefulness of an encounter with queer theory to contribute to the peaceful resolution of armed conflicts, to question the traditional frontiers of international law, and to lay the groundwork for envisaging different forms of peace and peace-making. In a field where, arguably, little genuine progress has been made to resolve armed conflicts and to address underlying forms of violence, queer theory can reinforce a pluralistic understanding of law and suggest much-needed unsettling and creative approaches. The article focuses on queer theory’s specific critique of the construction and normalization of hierarchies, categories, and identities, which almost always – whether explicitly or implicitly – lie at the heart of armed conflicts and frame peace negotiations, without ever being truly reconsidered. Moreover, queer theory allows appreciating both peace and law beyond predetermined categorizations and as aspirational endeavours that are constantly evolving. Through a dialogue between two figures, which imagines what Peace and qt* might want to tell each other, this article also attempts to queer the standard academic format and to question the dominant forms of expression and knowledge-production in academia.