In the past fifty years there have been changes in relation to the nature and sources of international law. Academic lawyers have welcomed these changes, which show a movement away from strict consent as the basis of international law. States and government law advisers have adopted a more conservative approach and emphasize the importance of consent as a basis for international law. Different approaches are apparent in the practice of the Human Rights Council. The Council has focused on the Occupied Palestinian Territory, much to the annoyance of Western states. The developing world sees the Occupied Palestinian Territory in much the same way as the United Nations saw apartheid in South Africa. The International Court of Justice has responded wisely to both these phenomena. It has given cautious approval to new notions of international law, encapsulated in the doctrines of obligations erga omnes and jus cogens. On the subject of Palestine the Court has given an Advisory Opinion which should form the basis for a peaceful settlement of the conflict in the Middle East. Unfortunately the international community has failed to give effect to this opinion.

This essay explores the legal thought of Hannah Arendt, and is one of the first to do so. Having presented an Arendtian view on law and its relations to politics, it subsequently discusses how an Arendtian view might yield insights on some topical international issues, in particular the much-discussed issue of constitutionalism in international law.

This article uses the first issue of the American Journal of International Law, one hundred years after its creation in 1907, to analyse the state of American international legal thought following the acquisition of Pacific and Caribbean island territories in the Spanish–American War and the creation of a new international identity. Traditionally, the American Society of International Law (of which the journal was the organ) has been placed in the context of the US peace movement. However, both the society and the journal were led by individuals occupying major positions in the administration of Theodore Roosevelt and earlier administrations, including the sitting and a former secretary of war. The society and its journal were vehicles of the US foreign policy establishment. Despite a mixture of imperialists and anti-imperialists, a cultural coherence is discernable in the journal's pages. In essence, the journal can be placed within what the article calls the genteel tradition of US international law, involving an effort at educating the public away from over-excitement, adopting science in the newly professionalized administrative state, and advocating an arbitrational model of legal ordering to promote international peace.

Kafka's short story In the Penal Colony depicts the visit of a European traveller to a cruel penal colony. The author uses the story to explore current issues concerning torture. Her particular focus is on the interrelation between torture and empire, and on the limits of humanitarian reform. Kafka is instructive in puncturing the pretensions of humanitarianism, and in pointing up the inescapable uncertainties, absurdities, and complicities associated with it.

This article considers the effectiveness of rights-based approaches to the problem of world hunger. Given that inadequate food supply may be the result of complex, structural problems outside the control of particular staes and authorities, can advocacy based on the right to food significantly improve world food security? To answer this question, this article considers one particular structural factor which contributes to world hunger, namely the operation of the international economic system. It concludes that, at both a theoretical and a practical level, human rights discourse is ill-suited to achieve the fundamental structural change to this system necessary t improve food security. This represents a significant limitation on the effectiveness of the right to food. As a result, an alternative legal approach is suggested, namely using a legal principle of ‘food sovereignty’ to ensure that the international system as a whole operates to support the food needs of its population.

The enquiry into international legal personality in the following article is both descriptive and prescriptive in nature. On the one hand, the phenomenon of the (legal) subject is described and explained, in order to offer a better reflection on, and analysis of, its existence. This holds for both the individual and the (so central to international law) collective subject. On the other hand, our attempt at reconceptualization has a clear normative aspect. Reconstructing (international) legal personality on the basis of anthropology and ethics as an inextricable part of the identity of a person results in a conception of (international) law as justice. And this means that international legal personality reconceptualized along the lines suggested in this paper functions to develop just international institutions and just international law.

This special issue of the Leiden Journal of International Law is presented as a tribute to John Dugard, a grand international lawyer of our time. It is a collection of essays written by former students, colleagues, and friends, who have had the privilege of working with him over the years.

This paper argues that the concept of the civilian is a specific way of viewing non-combatants that can be traced to the First World War. Before the war, non-combatants were seen by the law and the prevailing culture as citizens. The citizen was potentially and probably aggressive, bound to the fate of his or her state and, therefore, granted only minimal protection by law. The war, however, brought technological changes and a propaganda effort that transformed these citizens into a civilian population. Civilians were essential to the war effort, which meant that they were a target. Yet, at the same time, they were feminized, described as vulnerable and deserving of protection. This cultural shift influenced the way in which the laws of war were understood, leading to the replacement of the traditional categories of law with a military/civilian distinction in the 1923 Hague Draft Rules of Aerial Warfare. In this way the concept of the civilian entered international law.

This article considers the suitability of employing particular modes of imputed criminal liability in trials before international criminal tribunals. It focuses specifically on the doctrines of joint criminal enterprise and superior responsibility, two forms of liability which are central to many contemporary international criminal proceedings. Both doctrines can involve a broad form of criminal liability which may not be entirely appropriate when one considers the context in which such trials take place and the significance which often attaches to them. Proponents of international justice have contended that the contribution of these trials goes beyond basic accountability and providing justice for victims, extending also to peacemaking, reconciliation, deterrence, and the creation of a historical record. This article queries whether aspects of joint criminal enterprise liability and superior responsibility are appropriate when international justice is viewed in this light.

In this speech delivered at the conference honouring Professor Dugard, President Higgins discusses various human rights issues that have come before the International Court of Justice, including self-determination, reservations to human rights treaties, the application of human rights instruments to occupied territories, and allegations of genocide by one state against another. President Higgins notes that in the past few decades the ICJ has been joined by regional human rights courts, commissions and treaty monitoring bodies. Similar human rights claims are surfacing in these diverse fora, but the acknowledged expertise of these specialist bodies and the desire to avoid fragmentation provide an impetus for all concerned to seek common solutions on evolving points of law.

The introduction explains how this essay articulates the issue of ‘justice after war’ from the point of view of just-war theory, and how such a view can and ought to impact upon international law, for instance by inspiring the eventual development of a new treaty, or Geneva Convention, exclusively concerned with issues of postwar justice. In the body of the essay, attention is first given to explaining why just-war theory has traditionally ignored, or even rejected, jus post bellum. Second, argument is made as to why this ignorance and rejection must be overcome, and replaced with information and inclusion. Third, principles drawing on traditional just-war theory are constructed and defended, for jus post bellum in general and for forcible postwar regime change in particular. Finally, several remaining challenges are addressed, seeking to dissolve doubts and strengthen resolve towards working for progress on this vital and topical issue of jus post bellum.

Justus Lipsius (1547–1606) was among the most famed intellectuals in his time, but was largely forgotten during the Enlightenment. Intellectually, he stood at an important crossroads, his thought incorporating both late Renaissance traits and precursors of the early modern age. In this article I give a brief intellectual background to Lipsius's thought before concentrating on his thought regarding the lawful interaction between polities, with a focus on lawful government, dissimulation, war, and empire. I then detail the way in which Lipsian thought critically informed later theory and practice. It contained an eclectic mix of divine law, natural law, and positive human law, with some elements borrowed and popularized from earlier writers and others being more original. In the end, his work stands out both as an important inspiration for later theorists and practitioners, and as an example of the many idiosyncrasies and possible trajectories that early international law could have adopted.

This article is intended to be a report of the oral proceedings in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), detailing what took place in the Peace Palace and considering the arguments of the parties relating to the procedure adopted in the proceedings. These include the preliminary question of whether or not the International Court of Justice has jurisdiction in the case, a question which has been reopened by Serbia and Montenegro following the 2004 judgment in the Legality of the Use of Force cases; the question of the impact of the workings of the ICTY on the current proceedings; the issue of new documents which has arisen, given the very long gap between the written and oral proceedings; the burden and standard of proof adopted by the Court and what inferences it may draw; and the methodology for hearing witness testimony in the Court. Each of the parties addressed the Court on these procedural issues in some detail, in addition to their pleadings on the substance of the merits of the case.

This article seeks to examine whether the International Court of Justicehas developed jurisprudence on international humanitarian law and whether this has exerted any influence on the decisions adopted by other international courts and tribunals. In so doing, it revisits the issue of the value ofjudicial decisions under international law. Finally, it reveals that despite the non-operation of the rule of stare decisis in international law, the Court's jurisprudence on international humanitarian law has been a persuasive precedent for other international courts and tribunals.

In the Armed Activities on the Territory of the Congo case the International Court of Justice has – for the first time in its history – found a state to have violated the prohibition of the use of force in Article 2(4) of the UN Charter. For the first time also, the Court has discussed the scope of self-defence directly under Article 51. In this article the focus lies on this aspect of a wide-ranging judgment. In finding that Uganda had violated the Charter, the Court kept to its jurisprudence constante; it did not bow to ‘post-11 September’ pressure to extend the logic of Article 51 to private actors. This article discusses the merits of the scholarly claims for both sides, but warns of drawing conclusions for the Court's future jurisprudence – the apparent unity among judges may have to do more with the case rather than the wider issue.

International human rights law norms and ‘human-rightist’ imperatives are increasingly ‘mainstreamed’ into general international law. The writer makes two modest assertions: that the success of this trend (i) makes it now possible to speak of general international law ‘sources’ of human rights obligations; and (ii) undermines claims of the ‘specialness’ of the human rights legal framework, which are a source of perplexity for the general international lawyer increasingly used to taking human rights law (as lex generalis) into account when interpreting and applying general international law.

The procurement of information in the sole possession of states is pivotal to the fair and expeditious conduct of trials before the ICTY. At the same time, states possessing sought-after information may have certain legitimate interests they wish to protect in relation to such material, for example national security interests. Taking into account the uniqueness of the ICTY as an institution created by the Security Council under Chapter VII of the UN Charter, this article analyses situations where tensions have arisen, or may potentially arise, between state interests and the presentation of evidence crucial to the guilt or innocence of the accused. After setting out the continuously developing law of the ICTY that has striven to reconcile these competing demands, the authors propose alterations to the Rules of Procedure and Evidence, in the form of amendments to Rule 54 bis and a new rule, Rule 54 ter.

This article examines the possibility of creating a law of armed conflict that could be uniformly applied to both international and non-international armed conflict. The article looks at the history of modern armed conflict, and charts the progression of warfare from a predominantly interstate event to that which is more likely to be characterized as non-international or internal. The increasing prevalence of non-international armed conflicts throughout the twentieth century has lead to ongoing moves on behalf of the international community to bring the regulation of such conflicts further within the ambit of international regulation. With this in mind, the article argues that such moves have blurred the historical distinction between types of armed conflict to the point where the distinction could be eliminated altogether. By looking at international treaties, tribunals, and state practice, this article asserts that the law of armed conflict could be uniformly applied, with the aim of ensuring that all participants in armed conflict are equally and humanely treated.

The UN Security Council, as ‘parent body’ of the two ad hoc Tribunals, never introduced explicit rules on how to compensate accused persons for violations of their rights imputable to the Tribunals' organs. Notwithstanding the absence of such rules, a series of decisions by ICTYand ICTR chambers show the willingness of these institutions to address such violations when they occur. In doing so, the Tribunals appear to have followed some of the same principles on responsibility of international organizations as are being elaborated by the International Law Commission (ILC). By analysing these parallel processes, the author suggests that the elaboration of rules by the ad hoc Tribunals in the field of human rights violations and the codification by the ILC of rules on international responsibility, although distinct in aim and scope, might mutually benefit each other andshed some light on the difficulties of applying such principles in practice.

This essay recounts the protracted history of the proposal to create a UN High Commissioner for Human Rights, from the days of Cold War controversies and divisions until the post ultimately came into being after the World Conference on Human Rights (Vienna, 1993). While early proposals perceived the High Commissioner as an independent authority receiving complaints and lending good offices, the envisaged role of the High Commissioner progressively evolved over the years – with the setting up of a great variety of treaty-based and charter-based implementation procedures – to encompass comprehensive policy-planning and global human rights advocacy. Thus, as the UN official with principal responsibility for human rights activities, the High Commissioner became firmly embedded in the structure of the UN organization. This paper further underscores the catalytic role of non-governmental organizations in consistently pushing forward the high commissioner project, as it finally emerged in an atmosphere of high expectations.