This article focuses on the challenges of ‘long-delayed’ prosecutions, that is, criminal prosecutions that begin decades after the conflict, using the experience of the International Criminal Tribunal for Bangladesh (ICT-BD) as a case study. This issue is still an insufficiently discussed topic even though such prosecutions are likely to become more common in the future. The focus of this article is mainly on the legal and broader, transitional justice challenges of long-delayed prosecutions at the ICT-BD. The article examines how such prosecutions have had a contradictory, two-fold effect: on the one hand, they have partially broken the endemic culture of impunity that was allowed to prevail for decades in Bangladesh. On the other hand, however, they have been highly controversial and may have served to deepen alienation of the Islamist opposition in Bangladesh. The article concludes that the question of whether long-delayed prosecutions are desirable for a particular society remains highly context-dependent and, in some cases, mechanisms other than criminal trials may be better suited to dealing with the past.

The European Social Charter (ESC) was signed in 1961 and has been in force since 1965. Protecting 19 fundamental rights, it was conceived as the counterpart, in the field of social and economic rights, to the European Convention on Human Rights. However, it was considered to have several shortcomings as a human right instrument, namely a slow, confusing and government-controlled monitoring mechanism as well as a list of protected rights that was incomplete. This last criticism was partly met by the Additional Protocol to the Charter of 1988, which guaranteed four additional rights. However, an informal Ministerial Conference on Human Rights held in Rome on 5 November 1990 acknowledged that one had to go further. The ministers invited the Committee of Ministers of the Council of Europe to take the necessary steps for a detailed study of the role, content, and operation of the European Social Charter with a view to giving it a new impetus. In response, the Committee of Ministers authorized the convening of an ad hoc committee, the Committee on the European Social Charter (the so-called “Charte-Rel Committee”). It was instructed to make proposals for improving the effectiveness of the Charter and, in particular, the functioning of its supervisory machinery. In carrying out its task, the Committee consulted the international representatives of management and labour, including the European Trade Union Confederation (ETUC) and the Union of the Confederations of Industry and Employers of Europe (UNICE), as well as the International Labour Organization (ILO) at all stage.

On 25 September 2009, the Appeals Chamber of the International Criminal Court (ICC) issued a seminal decision on the subject of complementarity in the case Prosecutor v. Germain Katanga. The outcome of the Chamber's decision is that, even if a state has initiated an investigation or prosecution against an individual, the ICC may prosecute that individual for the same crimes or even a more selective range of crimes, so long as the state is willing to close the ongoing investigation or prosecution at the request of the ICC Prosecutor. While this decision is defensible under the language of the Rome Statute, this article concludes that, absent vigilance on the part of the ICC's Office of the Prosecutor, the decision could produce consequences inconsistent with the principle that the ICC is intended to act as a court of last resort. These potential consequences, in turn, suggest that the prosecution's policy of ‘positive complementarity’ – that is, encouraging genuine national proceedings whenever possible – should be at the core of its case selection strategy. At the same time, in those instances when the ICC prosecution determines that, despite activity by a national system with respect to a particular case, it is appropriate for the ICC to take over the case, the prosecution should clearly and publicly explain the factors that led to its decision.

The UN General Assembly has recently decided to delete from the agenda of the International Law Commission the topic ‘Relations between States and International Organizations’.

Over a period of 31 years, fourteen Reports by two successive Special Rapporteurs studied the topic in two parts. The First part of the topic (1963–1975) dealt with the privileges and immunities of representatives of states to international organizations, and resulted in a Convention, that has, however, not yet entered into force; the Second part of the topic (1976–1992) concentrated on the legal status and immunities of organizations themselves.

The author analyzes the Draft Articles that have been submitted in the course of the ILC's study of the Second part. This is done by way of a three-step application of the functional necessity concept of organizational immunities:

(1) Status, dealing with an organization's functions, legal personality and capacity-(2) Selection, defining a scale of organizational immunities for which an organization may be eligible - and (3) Scope, determining the extent of selected immunities. Finally, the author employs the two statutory functions of the ILC -the codification of international law and the progressive development of international law- to assess the contribution by the ILC to this field of international institutional law.

It has to date not been examined in-depth what correlative rights and obligations the breach of an erga omnes obligation or an erga omnes right may entail. In his Separate Opinion in the Gabčíkovo-Nagymaros case, Judge Weeramantry devotes one section to the legal consequences of the involvement of erga omnes obligations in inter partes judicial procedures. This editorial analyses the relevant parts of Judge Weeramantry's Separate Opinion and explores the impact it may have on future litigation involving erga omnes issues.

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.

The Statutes of the ICTY and ICTR provide for the review of final judgments upon the discovery of a ‘new fact’ that could have affected the judgments. The Appeals Chambers of the two Tribunals interpret the term ‘new fact’ to mean new information related to a matter that was not at issue during the original trial, as opposed to simply meaning new information of a factual nature. The article argues that this interpretation of ‘new fact’ creates a risk that review will be denied on formalistic grounds even in situations where principles of justice would make review plainly warranted. The article proposes several ways in which the Appeals Chambers could alter their case law to ensure against such injustice. Finally, the article considers the implications of this issue for other international criminal tribunals.

On 21 July 1995, Greece ratified the 1982 UN Convention on the Law of the Sea (hereinafter the 1982 Convention). The entry into force of a widely accepted and comprehensive law of the sea convention has been a consistent objective of successive Greek administrations since negotiations began over two decades ago. Greece was very active during the Third United Nations Conference on the Law of the Sea (UNCLOS III]), voting in favour of the Convention and its Final Act with the intention of ratifying it at a later date. This article discusses the political and substantive context of the Greek ratification of the 1982 Convention by considering its impact upon Greek law of the sea interests and assessing its implications for Greek-Turkish relations in the Aegean Sea.

Treaty amendments constitute a critical but under-researched aspect of international law. In this article, we present a comprehensive survey of 491 amendment procedures across 691 multilateral environmental agreements. We use this data collection to build a typology of amendment procedures based on various combinations of control, adaptability, and flexibility. We introduce the property space reduction method as a valuable tool for building typology and analysing international law. We find a clear trend towards the inclusion of amendment procedures, which makes treaties increasingly adaptable. This adaptability is generally coupled with flexibility to avoid infringing on consent. As a result, amended treaties risk being increasingly fragmented into differentiated bundles of obligations split among subsets of members. We also examine how key features of treaty membership, such as power distribution, correlate with the occurrence and types of amendment procedures.

The principle of complementarity is one the cardinal features of the architecture of the Rome Statute. Complementarity provides not only a forum to advocate overlapping competencies and litigate jurisdictional disputes over admissibility (e.g. Articles 17 and 19), but marks the foundation of the Statute as a multidimensional system of justice (e.g. Preamble, Article 1). This topic has been a focus of attention of the Court since its very inception. When taking office, the Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, qualified complementarity as one of the key factors for the successful operation of the Court, noting that ‘the absence of trials led by [the] Court as a consequence of the regular functioning of national institutions would be a major success’. As of 2003, the Office of the Prosecutor (OTP) has developed guidelines and principles on complementarity in order to clarify its theoretical underpinnings and operational features.

The Leiden Journal of International Law (LJIL) is many things. In the present editorial we highlight three of its activities – both old and new. First, we look back briefly at the symposium on ‘The Changing Role of Scholarship in International Law’ that we held in March 2015. Second, we present the winner of the second LJIL Prize and draw attention to her contribution. Third, we announce the first LJIL lecture and introduce the inaugural laureate. We do this in a way that continues to reflect on the roles of the journal. We do not aspire to define its identity simply because we value its diversity too much. But we wish to contribute to the ongoing debates on how a journal of international law might position itself in light of many new outlets for scholarship, in the context of porous or battled disciplinary frontiers, and in response to expectations that scholarship ought to meet. These are recurrent issues in the journal and its editorials. In particular, Carsten Stahn has drawn attention to the theme that shaped the symposium, the changing role of scholarship. He has since stepped down as an Editor-in-Chief and Ingo Venzke has assumed this position, continuing to work alongside Eric De Brabandere. Once again we thank Carsten for his immensely valuable contributions to the journal – past, present, and future.

This case note focuses on two aspects of the January 2005 Strugar Judgment of the ICTY. The first is the trial chamber's finding that the accused was not aiding and abetting his subordinates in the commission of the crimes charged through his failure to discharge his duty to prevent the crimes and/or punish the perpetrators. The second is the trial chamber's definition of one of the alternative mental states a superior must possess before a conviction can be entered against him on the basis of Article 7(3).

Recently, two disputes involving China's WTO-plus obligations have attracted great attention: China – Raw Materials and China – Rare Earths. In China – Raw Materials, China resorted to WTO environmental protection exceptions to justify its violation of the export duty elimination obligation outlined in paragraph 11.3 of the Protocol on the Accession of the People's Republic of China, which is clearly a WTO-plus obligation. However, China's recourse was rejected by the panel and then by the Appellate Body, as will probably happen in China – Rare Earths. This article looks into the interpretation and finding of the applicability matter in the DSB reports in China – Raw Materials and further discusses the general applicability issue of environmental protection exceptions to the violation of WTO-plus obligations. As rebuttal to the DSB reports, this article argues that omissions or silence in paragraph 11.3 do not necessarily mean rights waiver, especially when the right involved is the essential right to justify the violation pursuant to environmental protection exceptions provided in Article XX(b) and (g) of the GATT. Also, it is illogical to refer to GATT generally when the WTO-plus obligation in paragraph 11.3 does not have any corresponding rules in GATT. More generally, with consideration of the nature of the environmental protection exceptions in Article XX and the conclusion process of the Protocol, as well as with consideration of the sustainable development objective of the WTO and the politically sensitive matters concerned in China – Raw Materials, China should not be deprived of the right to defend its violation of the export duty obligation in China – Raw Materials. Although the discussion in this article is mainly based on China's WTO-plus obligations, its reasoning may also be extensively applied to that of other acceding members if suitable.

Traditionally, most arbitration acts provided that an arbitrator could be challenged on the same grounds as those on which judges could be challenged. Thus, arbitrators could be challenged on specific grounds, such as a family relationship with one of the parties or animosity towards one of the parties. The more modern approach is to provide for an open norm for the grounds on which challenges can be brought. This approach finds its origin in the UNCITRAL Arbitration Rules adopted in 1976. It provides that: “[a]n arbitrator may be challenged only if circumstances exist that give rise to the justifiable doubts as to his impartiality or independence”. This standard was received in many other arbitration acts and rules. The standard nowadays being more or less uniform, its interpretation and application are far from easy.

The UN Charter and customary law contain significant ambiguities concerning the prohibition of enforcement measures by regional organizations. This fact – coupled with practical necessity – appears to have been responsible for the failure of the UN to condemn the unauthorized use of force by regional organizations in Liberia and Sierra Leone. These cases and legal doctrine suggested increasing regional autonomy in this field. Although reactions to Operation Allied Force in Kosovo cooled the enthusiasm of those who wished for the legitimization of such actions, evidence suggests that under certain circumstances unauthorized regional enforcement measures may at least avoid condemnation.

Silence has often been studied in international law as a mechanism tied to passivity and oppression. In this study, I propose an exploration of other ontologies of silence by unravelling its possibilities as an active mechanism, namely: (i) a tool for resistance; and (ii) a linguistic device for managing disagreement. For this, I use as an exploratory ground the construction of a non-definition of gender for the crime of persecution in international criminal law (ICL). Analysing the Rome Statute negotiations, I examine how gender-conservative actors successfully opposed the proposal for a non-definition of gender, arguing that such a solution would harm the clarity required by the principle of legality in ICL. By establishing that legal rules must be clear, specific, and cohesive, I argue that the legality principle imposes a burden of speech upon non-state voices in ICL, one that encircles them within a subalternity scheme where speech is demanded but can only be performed or mediated by states. Exploring the negotiations of the Convention on Crimes Against Humanity draft, I examine how the non-definition of gender allowed feminist and queer activists to resist such a burden of speech for the conceptualization of gender. Simultaneously, silence also provided an opportunity for International Law Commission members to propose a draft that avoids cacophony around a contentious term. By reflecting on the active roles of silence, this study contributes to new modes of analysing resistance to dominant modes of legal discourse, as well as exploring dynamics of order(ing) in international law-making.