In its judgments on the preliminary objections in the Legality of Use of Force cases, the Court held that the FRY was not a UN member in the period between 1992 and 2000. This finding is controversial, at odds with previous decisions of the Court, and has indeed attracted criticism from various judges. This article proposes a different construction of the question of the FRY's membership within the UN and reviews arguments that allow doubts to be cast on the reasoning of the Court. Because of the link between UN membership and the FRY's participation in the Genocide Convention, the Court's finding in the Legality of Use of Force cases may have some implications for two sets of proceedings still pending before the Court (Bosnia and Herzegovina v. Serbia and Montenegro and Croatia v. Serbia and Montenegro). In the former case, an interpretation of the extent of the res judicata principle may allow the Court not to reopen the issue of jurisdiction, already decided in 1996 on the basis of Article IX of the Genocide Convention. In the latter case, various options might allow the FRY to be regarded as a party to the Genocide Convention.

Judge Alejandro Álvarez had already developed a theory of a ‘new international law’ when he joined the first bench of the International Court of Justice in 1946. During his time at the Court, he elucidated his theory by means of Individual or Dissenting Opinions, always stressing the importance of the Court for judicial lawmaking. The aim of this article is to present Álvarez's concept of a ‘new international law’ and to analyse some of his individual and dissenting opinions with respect to his theory, with additional emphasis on the lawmaking function of the Court as an integral part of his approach.

In February 2006 Judge P. H. Kooijmans retired from the International Court of Justice after having served a full nine-year term. The article focuses on the manner in which Peter Kooijmans has performed his task as a judge by taking a close look at his most significant individual opinions. It focuses on three aspects of his contribution to the work of the Court: settling disputes, applying legal logic, and the development of international law.

In 1945 Czechoslovakia confiscated Liechtenstein property as reparation for the damage done by Nazi Germany. Private claims failed before the courts of Czechoslovakia, and international law did not provide Liechtenstein with a means of action against Czechoslovakia. When the property was on loan in Germany, a private case for recovery was declared inadmissible by the German courts, in line with Germany's international obligations. The European Court of Human Rights accepted these decisions. Liechtenstein, on the other hand, considered them to violate its sovereignty. In 2005, the International Court of Justice decided that it lacked temporal jurisdiction to rule on the issue.

The present article aims to examine a set of legal constructions related to the concept of legal title in territorial disputes. Any international jurist cannot but strongly feel the need of a theoretical approach and framework explaining the acquisition and loss of territorial sovereignty. This conceptualization will be put to the test in the light of the ICI's case law, especially, but not exclusively, the most recent ones. To this end, the article is structured in three main parts in addition to introduction: the first will be devoted to the building of a comprehensive concept of territorial title while rejecting the traditional ‘modes of acquisition’ of territorial sovereignty (part 2). Part 3 will deal with the legal processes through which territorial titles are actually created, extinguished, or modified: roughly speaking, this happens by an international agreements (legal acts) or by virtue of norm-creating facts. Last, but not least, we shall examine – in part 4 – the highly debated and sensitive topic of the relations between effectiveness and formal legal title from the standpoint of the establishment or loss of territorial sovereignty. As we have endeavoured to show in this writing the concept of legal title reunites and resolves the tension between fact (effectiveness) and formal gegal title (law). In this respect four situations will be put under scrutiny in order ultimately to test our construction of a new concept of territorial title.

Can an occupier invoke the right of self-defence against terrorism stemming from territories which it occupies? In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory the International Court of Justice responded to this question in the negative. This article critically analyses the reasoning presented by the Court concerning the specific question of the right of self-defence, not least in the light of the fact that it was harshly criticized by a number of judges in their individual opinions and by the Supreme Court of Israel in the subsequent Mara'abe (Alfei Menashe) case. It is also suggested that the issues discussed in this article, such as state responsibility for an armed attack, the principle of effective control, and the interplay between jus ad bellum and jus in bello, loom beyond the scope of the concrete question and concern more theoretical issues of international law.

In its Judgement issued on 30 November 2005 in Prosecutor v. Limaj et al., Trial Chamber II of the ICTY found that an armed conflict existed in Kosovo between the Kosovo Liberation Army and the Serbian forces as of the end of May 1998. It held, however, that the evidence did not establish that there was a widespread or systematic attack by the KLA directed against a civilian population at the relevant time. The first trial of former members of the Kosovo Liberation Army also gave rise to a number of significant developments in the ICTY's jurisprudence relating to issues of international criminal law and procedure, such as the treatment of hostile witnesses and of eyewitness identification evidence, as well as the proof of the existence of a joint criminal enterprise.

There are three topics within the body of Vereshchetin's academic work which deserve special attention: the law of the sea, space law, and the theory of international law. Vereshchetin's contribution as a judge to the practice and theory of international law can be appreciated through his individual opinions and declarations, in which he dealt with various issues of international law and the international judicial process: self-determination, countermeasures, diplomatic protection, and questions which concern the functioning of the Court (the role and powers of the ICJ, non liquet, bases for the revision of decisions, declarations accepting the Court's jurisdiction and reservations to them, and so on).

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).

The question whether the International Criminal Court may use its review powers to determine the admissibility of a case during the arrest warrant phase has gone widely unnoticed in legal literature on the International Criminal Court. This article treats the question from different perspectives. It presents the different stages at which admissibility questions may arise in response to a state party referral. Then it analyses the first jurisprudence of Pre-Trial Chambers I and II of the Court on the treatment of the question of admissibility at the arrest warrant stage. The article concludes that the Court may, proprio motu or based on a Prosecutor's request, rule on admissibility questions during arrest warrant proceedings per Article 58.

In certain quarters of the former Yugoslavia, the ICTY judgment issued on 30 June 2006 in Prosecutor v. Naser Orić has been strongly criticized for meting out a two-year prison sentence to the Bosnian Muslim wartime commander of Srebrenica. After a short sketch of the factual background which the trial chamber considered to be the pivotal sentencing factor, this note focuses on the legal issues underlying his conviction for having failed to prevent the murder and cruel treatment of a number of Serb prisoners. In particular, the trial chamber's interpretation of the standard of ‘reason to know’ of these crimes deserves attention. The judgment also gave rise to other significant developments, such as the approach to repeated prosecutorial violations of its disclosure obligations and an important clarification regarding the scope and nature of crimes committed by subordinates of a superior.

Notwithstanding estimates that 12.3 million persons today are subjected to conditions analogous to slavery, public international lawyers have almost completely ignored slavery and related institutions in recent decades. This article explores the phenomenon of forced labour in the Amazon, where anywhere between 25,000 and 100,000 people are compelled through trickery and coercion to work in subhuman conditions. After outlining the legal regime governing slavery-related practices, the author examines why the Brazilian government has failed in its efforts to secure compliance within its own borders of its obligations under anti-slavery and human rights conventions. The author then argues that holding the Brazilian state responsible and assessing monetary damages is not in fact the most effective and fair way to secure the human rights of the victims of forced labour, and that international criminal sanctions for the individual perpetrators – including prosecution in the ICC for crimes against humanity – is a viable and preferable alternative.

Moiwana Village is the second case to be decided by the Inter-American Court on Human Rights against Suriname in which the victims are members of an ethnic community that descends from ‘Bush Negroes’ or ‘Maroons’, namely escaped former slaves who established new autonomous communities in the eastern part of Suriname. In contrast to its prior judgment, in Moiwana the Court shows a striking evolution in its case law regarding the treatment of ethnic or group rights. This approach, which may be traced back to previous case law on the rights of indigenous communities, affords an enhanced protection to members of an ethnic community in the light of their disadvantaged position as a vulnerable group and taking into account the ancestral traditions followed by the community. After the Moiwana case, the Court decided Yakye Axa and Yatama, two cases regarding indigenous and ethnic communities in which this tribunal consolidated its approach towards the protection of these vulnerable groups.

The article analyses the main features of the Statute of the International Criminal Court in the context of recent developments in international law. The core submission is made that the states' obligations enshrined in the Statute (namely, to investigate and prosecute the most heineous crimes, and to co-operate with the Court in their investigation and prosecution) are to be construed as obligations erga omnes. Since ending impunity for such crimes transcends the interests of individual states, the Court should act on behalf of the international community in remedying any shortcomings of states' action in this respect. In this perspective, particular attention is devoted to the principle of complementarity: it is argued that it could and should be construed and implemented in such a way as genuinely to allow the achievement of the universal objective of preventing impunity for those crimes of concern to the international community.

Under the UN sanctions regime of Resolution 1267, UN member states are obliged to freeze the assets of persons and entities which are associated with Usama bin Laden, and which therefore reason have been listed by the UN. Within the European Union this ‘UN sanctions list’ is implemented by means of a Community regulation, having direct effect in all EU member states. The regulation was challenged by several individuals and an organization, which were added to the UN sanctions list on the basis of their association with al Qaeda. The regulation was challenged on two grounds. First, the applicants claimed that the Community did not have the competence to adopt the contested regulation. In the second place, the applicants claimed that the Community regulation infringed their human rights (right to property, right of access to court). Thus the CFI was asked to determine to what extent it is competent indirectly to review measures adopted under the UN Charter. This delicate legal question is answered in a lengthy judgment, the legal reasoning of which is not always convincing.

The UN Security Council has recently referred the situation in Darfur, Sudan, to the International Criminal Court. This has been hailed as a breakthrough in international criminal justice. However, aspects of the referral resolution can be criticized from the point of view of their consistency with both the Rome Statute and the UN Charter. The limitations of the referral with respect to whom the Court may investigate also raise issues with respect to the rule of law. In addition, Sudan has accused the Security Council of acting in a neo-colonial fashion by referring the situation in Darfur to the Court. This article investigates these criticisms against the background of the international system in which international criminal law operates, and concludes that although the referral cannot be considered neo-colonial in nature, the referral can be criticized as selective and as an incomplete reaction to the crisis in Darfur. The referral remains, however, a positive step.

Books and Articles in the Field of the Prevention and Peaceful Settlement of International Disputes (Winter 2005)

Compiled by Ingrid Kost exclusively from materials available in the Peace Palace Library, The Hague

The MOX Plant and IJzeren Rijn disputes illustrate the growing problem of concurrent jurisdiction between international courts and tribunals and the ECJ. This article argues that in cases in which Community law is involved in a dispute between two EC member states, international courts and tribunals must accept the exclusive jurisdiction of the ECJ under Article 292 of the EC Treaty to decide these cases. However, only the UNCLOS arbitral tribunal in the MOX Plant case stayed the proceedings and requested that the parties first find out whether the ECJ had jurisdiction, whereas the OSPAR as well as the IJzeren Rijn arbitral tribunals rendered their awards despite the implications of Article 292. Thus it appears that every arbitral tribunal decides the issue of Article 292 as it sees fit. This situation, it is argued, requires the creation of some sort of hierarchy between the growing number of international courts and tribunals in order to co-ordinate and harmonize their decisions so as to avoid a fragmentation of international law.

More than a decade after the end of the conflict in Bosnia and Herzegovina, the issue of missing persons remains a major obstacle to reconciliation. With a focus on Bosnia and Herzegovina, this article looks at the phenomenon of missing persons and reviews the scope of the legal protection available to the victims and their family members, as well as some of the institutional efforts to shed light on their fate. The article describes the progressive development of the jurisprudence of the Human Rights Chamber for Bosnia and Herzegovina, a court modelled on the procedures of the European Court of Human Rights, which held that Bosnian authorities who are withholding from family members information about missing persons are violating their right not to be subjected to inhuman or degrading treatment and their right to respect for private and family life. It further illustrates the positive effects on politicians and lawmakers which can emanate from transitional justice.

Although the House of Lords has now made it clear that evidence obtained by means of torture conducted abroad by non-UK nationals is inadmissible in judicial proceedings in the United Kingdom, the position remains unsatisfactory. Restrictive approaches have been taken to many of the key issues, suggesting that there is still considerable scope for the use of evidence which is brought to light as a result of forms of ill-treatment which violate human rights standards. Moreover, the use of ‘foreign torture evidence’ by the executive is expressly sanctioned. Even if this strikes an appropriate balance between conflicting goals of public safety and judicial propriety, it cannot be said to further the realization of the international prohibition of torture and inhuman or degrading treatment or punishment and is a poor reflection of the abhorrence of torture which the House of Lords itself says is a feature of domestic common law.