Theorizing about the operation of law in an internationalized territory involves three discrete dimensions, according to which this article is structured. First, liberal legal forms are transmitted without being subject to mediation by a ‘sovereign’. The diffusion of imported norms represents the precise telos of a mission civilisatrice of a postcolonial institution-building mission. Such internationalization projects realize their liberalizing potential through a complex process where they provide legal continuity while importing legal forms that emphasize discontinuity and progress. In the second dimension, the article accounts for the asymmetric co-government setting exhibited in Kosovo in which law is both municipal and international. The syncretic nature of legal sources limits attempts to establish a ‘hierarchy’ of norms in an internationalized territory. Further, the promised advent of a liberal future is challenged by what this article identifies as the third characteristic of such a transitory legal order – the unaccountability of the international administering agent. These three properties of a normative order entail a paradox in which the aspirations of a fiduciary administration operating in the slipstream of liberal internationalism and its ‘civilizing mission’ are qualified by the absence of key criteria of a Rechtsstaat – the democratic creation of laws, the separation of powers, legal certainty, and the judicial control of normative acts.

Many transitional countries face the problem of establishing the rule of law in a weak justice sector where a gulf separates local legal norms from national, constitutional norms that are drawn largely from the international sphere. As a case study of East Timor this article challenges simplistic positivist notions about the normative hierarchy of laws within a constitutionally bounded polity. It argues that in transitional countries such as East Timor legal pluralism is important but must be properly tuned to serve the rule of law. Legal pluralism poses certain dangers when it operates without any of the checks or balances that ensure accountability and the promotion of constitutional values such as equality. The rule of law is not served by an informal system where there are no formal avenues of appeal and thus minimal accountability and transparency. A more promising version of legal pluralism that comports with the rule of law is one that empowers the state to monitor local decisions to ensure that they observe the norms set out in East Timor's Constitution.

State-centrism is a key concept in discussions of sovereignty, justice, and the global political order and of changes within that order. Thus we routinely hear: ‘that analysis is far too state-centric!’ Or: ‘earlier approaches were marred by excessive state-centrism, and need to be reconsidered in the light of contemporary circumstances’. Or even: ‘I'm state-centrist and proud of it’. This article brings into focus some of the themes associated with state-centrism in international legal writing, and suggests something of the limits of this way of framing issues. It also raises the possibility that these themes may provide clues to certain characteristic and apparently deep-rooted, but not always clearly recognized, anxieties on the part of those who work in this field. Borrowing a phrase from Harold Bloom, the article refers to these as anxieties of influence.

International human rights law has been the subject of much scrutiny by feminist scholars over the past two decades, principally because of the way in which it is seen as privileging the realities of men's lives while ignoring or marginalizing those of women. The international prohibition on torture is identified by feminist writers as a classic example of this ‘male’-gendered nature of human rights law. This article explores the extent to which key feminist critiques of the 1980s and 1990s are now reflected in the commentary and jurisprudence on torture of various international human rights bodies. It asks: have the critiques of international human rights law been satisfied by interpretations applied by international and regional bodies to this so-called ‘male’ right? It concludes by offering both caution and counsel – it cautions against the potentiality of new interpretations simply replacing old gender-based stereotypes with new ones and counsels international decision-makers to focus on the individual or personalized characteristics and circumstances of each claim, of which sex/gender may be but one factor.

The ICJ considered the Wall in terms of the structure of the Israeli occupation and the settlements, which is one of de facto annexation. By contrast, the Israeli HCJ uses proportionality to regulate within the occupation. This approach may be inherent in humanitarian law, but involves a misplaced transplantation of the proportionality doctrine and an imbalanced rights/security equation. Contrary to the HCJ's determination, which attributes the different conclusions of the two courts to the different factual backgrounds available to them, this article argues that they reflect the courts' variant attitudes towards the barrier and its place within the broader context of the occupation and its structure. The looming shadow of the ICJ affected the HCJ's decision. On critical questions of international law, however, a wall separates international law as articulated in The Hague and the decisions issued in Jerusalem, pointing to the need for a new articulation of existing theories on transnational legal processes.

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.

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.

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).

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.

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

Eyal Benvenisti and Moshe Hirsch (eds.), The Impact of International Law on International Cooperation: Theoretical Perspectives, Cambridge, Cambridge University Press, 2004, ISBN 0521835542, 330 pp., £55.00 (hb).

Markus Burgstaller, Theories of Compliance with International Law, Leiden, Martinus Nijhoff, 2005, ISBN 9004141936, 244 pp., €98.00 (hb).

Constanze Schulte, Compliance with Decisions of the International Court of Justice, Oxford, Oxford University Press, 2004, ISBN 0199276722, 500 pp., £75.00 (hb).

Science is organized common sense where many a beautiful theory was killed by an ugly fact.

Thomas H. Huxley

Anthony Anghie, Imperialism, Sovereignty, and the Making of International Law, Cambridge, Cambridge University Press, 2005, ISBN 0521828929, 356 pp., £60.00 (hb).

Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order, Cambridge, Cambridge University Press, 2004, ISBN 0521827612, 414 pp., £65.00 (hb).

Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals, Oxford, Oxford University Press, 2005, ISBN 0199271550, 474 pp., £75.00 (hb).

Cesare P. R. Romano, André Nollkaemper, and Jann Kleffner (eds.), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia, Oxford, Oxford University Press, 2005, ISBN 0199276730, 550 pp., £75.00 (hb).