Leiden Journal of International Law - Current Issue

Volume 21 Issue 01

Sat, 01 Mar 2008 00:00:00 GMT

Leiden Journal of International Law, Volume 21 Issue 01

Firmly established as one of Europe's leading journals in the field, the Leiden Journal of International Law ( LJIL ) provides a forum for two vital areas, namely international legal theory and international dispute settlement. It is unique in providing the most comprehensive coverage of the world's most important international tribunals in The Hague (such as the ICJ, ICTY, ICC and others) and elsewhere, as well as examining new trends in international legal thinking. LJIL is essential reading for academics and practitioners who need to stay abreast of recent developments in these areas.

International Law and Alterity: The State and the Other

Research Articles
SÉBASTIEN JODOIN,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 1-28

Abstract
This article argues that orthodox international law is committed to the state at the expense of the Other, that which is not the state, and, at a more philosophical level, to ontology at the expense of ethics. Drawing on the philosophy of Emmanuel L alterity, ontology politics.

Judicial Independence in The Hague and Freetown: A Tale of Two Cities

Research Articles
YUVAL SHANY, SIGALL HOROVITZ,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 113-129

Abstract
This note evaluates the application of rules on judicial independence and impartiality in two international decisions issued in 2004 and compares them with a code of judicial conduct recently prepared by an ILA study group (the Burgh House Principles on the Independence of the International Judiciary). We assert that the approach taken by the ICJ in Wall is excessively restrictive and is out of step with contemporary tendencies to embrace stricter standards of judicial independence and impartiality.

‘New Facts’ in ICTY and ICTR Review Proceedings

Research Articles
JEAN GALBRAITH,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 131-150

Abstract
The Statutes of the ICTY and ICTR provide for the review of final judgments upon the discovery of a that could have affected the judgments. The Appeals Chambers of the two Tribunals interpret the term 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 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.

A Review of the Experiences of the Pre-Trial and Appeals Chambers of the International Criminal Court Regarding the Disclosure of Evidence

Research Articles
DAVID SCHEFFER,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 151-163

Abstract
Negotiators of the Rome Statute of the International Criminal Court (ICC) did not intend the Pre-Trial Chamber (PTC) to act as a de facto investigating judge; rather, their intent was that the PTC ensure that the Prosecutor act responsibly and within well-defined limits. Several opportunities have arisen in the Lubanga case before the ICC's PTC and the Appeals Chamber to examine the Prosecutor's duty and performance in disclosing documentary evidence and the identities of witnesses at the pre-trial stage. International criminal tribunals necessarily must bridge the evidentiary magnitude of atrocity crimes with a pragmatic focus on one person's role. The PTC judge should aggressively narrow the charges and focus the Prosecutor on the requirement of minimal evidence to meet the sufficiency standard for the remaining charges, direct the Prosecutor to share existing and emerging evidence with the accused in a timely manner and not wait until 30 days prior to confirmation hearing, and use statutory power to ensure timely non-disclosure requests and determinations.

Does the United States Really Prosecute Its Service Members for War Crimes? Implications for Complementarity before the International Criminal Court

Research Articles
THOMAS WAYDE PITTMAN, MATTHEW HEAPHY,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 165-183

Abstract
This article addresses the prosecution of service members by the United States for the commission of war crimes, specifically whether or not the offences charged in such cases can truly be considered . The answer has implications in terms of application of the complementarity provision of the Rome Statute, as well as the stigmatic effect that is avoided when the United States prosecutes ordinary criminal offences rather than war crimes.

A Tightrope Walk between Legality and Legitimacy: An Analysis of the Israeli Supreme Court's Judgment on Targeted Killing

Research Articles
HELEN KELLER, MAGDALENA FOROWICZ,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 185-221

Abstract
The Israeli official policy of targeted killing has often been a subject of controversy and criticism. Although still applied by the state of Israel, this cruel practice was recently limited in a courageous decision handed down by the Israeli Supreme Court. The new restrictions on targeted killing represent an important step towards its criminalization. Despite this, the Court's interpretation of the international humanitarian law requirements is still too broad and there is a need for more restrictive safeguards. In addition, the current uncertainties of this field of law, replicated in the decision, exacerbate the problem further. The main difficulty, however, lies in the theoretical assumption that targeted killing is legal. This article proposes instead to view targeted killing as an exception to the presumption of protection of the civilian population. The authors review the recent trends in international humanitarian law in order to assess the impact of the Court's reasoning. Although this landmark case represents an important breakthrough, it will certainly not be the last word on targeted killing.

THE TELDERS INTERNATIONAL LAW MOOT COURT COMPETITION

Research Articles

Leiden Journal of International Law, Volume 21 Issue 01 , pp 223-224

Abstract

The Telders International Law Moot Court Case 2008: Aerial Accident Case (Icara v. Mercuria)

Research Articles

Leiden Journal of International Law, Volume 21 Issue 01 , pp 225-228

Abstract

BIBLIOGRAPHY

Miscellaneous

Leiden Journal of International Law, Volume 21 Issue 01 , pp 229-233

Abstract

Sex, Love, and Marriage: Questioning Gender and Sexuality Rights in International Law

Review Articles
AEYAL M. GROSS,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 235-253

Abstract

Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law , Geneva and Cambridge, International Committee of the Red Cross and Cambridge University Press (2005), 2 volumes, ISBN 9780521539258, 4,411 pp., £320.00 (boxed set, hb); Volume I available separately, ISBN 9780521005289, 621 pp., £32.00 (pb).

Book Reviews
Eloisa Newalsing,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 255-279

Abstract

Giorgio Sacerdoti, Alan Yanovich, and Jan Bohanes (eds.), The WTO at Ten: The Contribution of the Dispute Settlement System , Cambridge, Cambridge University Press, 2006, ISBN 9780521863148, 531pp., £60.00 (hb).

Book Reviews
Isabelle Van Damme,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 279-282

Abstract

Olivier Corten and Pierre Klein (eds.), Les Conventions de Vienne sur le droit des traités: Commentaire article par article , 3 volumes, Brussels, Bruylant, 2006, ISBN 2802721828, 3,024 pp., €395.00.

Book Reviews
Jean d'Aspremont,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 282-288

Abstract

System Values and Understanding Legal Language

Research Articles
MAKSYMILIAN DEL MAR,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 29-61

Abstract
This paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence the law itself and towards an engagement with the responsiveness of legal work performed in international legal institutions.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) : An Introduction

Research Articles
SANDESH SIVAKUMARAN, SANTIAGO VILLALPANDO,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 63-64

Abstract

The Strange Story of the Bosnian Genocide Case

Research Articles
VOJIN DIMITRIJEVIĆ, MARKO MILANOVIĆ,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 65-94

Abstract
The article explores the political context of the Bosnian Genocide case recently decided by the International Court of Justice. It strives to show that an appreciation of the larger disputes within Bosnia and Herzegovina and Serbia is necessary for understanding the Court's judgment properly, particularly when it comes to the litigation strategies of the two parties which shaped the final outcome of the case, and, above all, for understanding how the judgment was perceived by the general public of the former Yugoslavia.

Bosnia v. Serbia : Lessons from the Encounter of the International Court of Justice with the International Criminal Tribunal for the Former Yugoslavia

Research Articles
RICHARD J. GOLDSTONE, REBECCA J. HAMILTON,
Leiden Journal of International Law, Volume 21 Issue 01 , pp 95-112

Abstract
This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ's approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies. With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied on the ICTY's work. The decision of the ICJ not to demand crucial documents from Serbia is discussed and criticized. Based on its approach to fact finding in this case, doubts are raised as to whether the ICJ will ever hold a state responsible for genocide outside the parameters of the prior criminal convictions of individual perpetrators.