In this issue the section on the International Criminal Court (ICC) contains two articles with a special focus on problems related to implementing legislation and co-operation with the Court (Zsuzsanna Deen-Racsmány's ‘Lessons of the European Arrest Warrant for Domestic Implementation of the Obligation to Surrender Nationals to the International Criminal Court’ and Héctor Olásolo's ‘The Lack of Attention to the Distinction between Situations and Cases in National Laws on Co-operation with the International Criminal Court with Particular Reference to the Spanish Case’) as well as a general article by Anne-Marie de Brouwer, ‘Reparation to Victims of Sexual Violence: Possibilities at the International Criminal Court and at the Trust Fund for Victims and Their Families’.

In late 2005 the Assembly of States Parties adopted the Code of Professional Conduct for Counsel of the International Criminal Court. Article 22 of the Code contains a provision on fee splitting which does not go as far as to place a positive duty on counsel to report such practices to the Registrar. This essay revisits this approach in the light of the practice of the ad hoc tribunals, the jurisprudence of the European Court of Human Rights, and existing norms in domestic legislation. It argues that the lawyer–client privilege is not absolute. Accordingly, the ICC should make it obligatory – through specific empowering clauses – for lawyers to advise their clients about the prohibition of the practice of fee splitting and to report the incident to the Registrar forthwith, notwithstanding any claim of privilege.

This article focuses on state recognition in the European context and on the admission of states to the Council of Europe after the end of the Cold War. It argues that two global trends identified by John Dugard in the 1980s have continued since then: a common approach to state recognition has been adopted and the criteria for state recognition have increasingly been given normative content. This reflects that the constitutive theory of state recognition continued to be popular. The two trends have not automatically resulted in a more legal approach to the issues, as the case study of Bosnia and Herzegovina illustrates.

Two recent ICSID cases, CMS v. Argentina and LG&E v. Argentina, diverge on the application of necessity under customary international law. The LG&E tribunal affirmed that Argentina's financial crisis amounted to a state of necessity. On virtually identical facts, CMS had reached the opposite conclusion 18 months earlier. This unhealthy split of opinion highlights the fact that necessity is ill-suited to financial crises. The state of necessity is at best a crude defence, appropriate as long as international law in this area remains underdeveloped. Lack of payment capacity will strike a better balance between host country and investor interests in future sovereign debt crises. This defence is also more amenable to adjudication by national courts and international tribunals.

On 2 February 2007 the Special Envoy of the UN Secretary-General unveiled a comprehensive proposal for a supervised independence of Kosovo with a view of clinching the last chapter of the dismemberment of Yugoslavia. This proposal constitutes a further attempt by the international community of states to bridle the volatile and unpredictable phenomenon of statehood. The state of Kosovo that is envisaged by the Status Settlement is to be endowedwith all the features that are nowadays seen as indispensable for the establishment of a modern government apparatus, a tendency that had already beenobserved in the case of Bosnia and Herzegovina or East Timor. The proposed regulation of statehood in this case, however, proves to be of an unprecedented extent. Against that backdrop, the article grapples with the legal questions revolving around the independence of Kosovo, including secession, recognition, succession, international supervision, self-determination, and membership of international organizations.

To help states parties circumvent domestic prohibitions on, inter alia, the extradition of nationals, the ICC Statute formally distinguishes ‘surrender’ of individuals to the Court from interstate ‘extradition’. The European Arrest Warrant contains a similar solution. As (successful) constitutional challenges by nationals to be surrendered under a European arrest warrant indicate, such a (semantic) distinction may not suffice. Despite considerable differences between surrender within the EU and to the ICC, these cases offer useful guidance to domestic legislatures occupied with implementing obligations arising under the ICC Statute so that they can ensure that ICC requests concerning the surrender of nationals can be honoured.

This contribution examines the problem of review of targeted sanctions imposed by the Security Council in the light of recent developments occurring in the EU context. Some recent judgments of the European Court of First Instance of the European Communities (CFI) are analysed, as rendered in the cases of Yusuf and Kadi and also in the more recent cases of the Mujaheddeen and Sison. These last two judgments show that flaws in the targeted sanctions regimes exist not only at UN level. The CFI also does not substantively review the listing when this listing is carried out by the Council of the EU. An examination of the progress made at UN level to address procedural flaws shows that, more than anything else, the real stumbling-block is the lack of a substantive review of intelligence information by an independent and impartial organ. The only conclusion that can be drawn from this is that we are on the way towards a better de-listing procedure, but are not there yet.

This article argues that in passing Resolution 1540, the UN Security Council has confused the proper scope of its enforcement powers under Chapter VII with the proper scope of its long unused, limited, lawmaking powers under Article 26. It has thereby taken to itself by unilateral exercise of its Chapter VII powers a role which, under the Charter system, it is to share with both the General Assembly, in the exercise of its Article 11(1) powers, and the general membership of the United Nations, to whom it is directed under Article 26 to submit proposals for the creation of new international laws in the area of weapons proliferation.

Books and Articles in the Field of the Prevention and Peaceful Settlement of International Disputes (Winter 2006). Compiled by Ingrid Kost exclusively from materials available at the Peace Palace Library, The Hague

This article provides an assessment of the replacement of the UN Commission on Human Rights by the Human Rights Council, with a view to ascertaining whether the human rights architecture of the United Nations is now in better or worse shape. Institutionally, it is unique in that an international organ is dismantled and replaced by a new one for the sake of achieving greater effectiveness. What are the chances for success? For a proper assessment, the article first examines the status, functioning, and falling into disgrace of the UN Commission on Human Rights and, second, reviews the establishment of the new Human Rights Council as part of the UN reform process and identifies the new features of the Council compared with the previous Commission. Third, it discusses the work of the Council in its first year, in particular the extensive June 2007 decision on institution building of the UN Human Rights Council. The article concludes that the Council had a far from fresh and easy start, but that its establishment and functioning so far are not a radical departure from the acquis of the UN human rights regime. The first years of the Council are crucial for solid institution building and functioning credibly in an action-oriented way. The first members on the Council bear the heavy responsibility of seizing this historic opportunity.

The concept of democracy has long fuelled controversy among international legal scholars, especially concerning its definition. This article is an attempt to single out three constitutive elements of democracy that have been subject to extensive scrutiny in the practice of electoral assistance and the more comprehensive peace-building and state-building missions that the UN has taken up or supported since the end of the twentieth century: freeand fair elections, freedom of association – with emphasis on the freedom to establish political parties – and freedom of expression. In doing so, this paper examines the role and the importance of each of these three constitutive elements in the practice pertaining to post-conflict reconstruction of Kosovo, East Timor, Afghanistan, and Iraq.

This essay examines the impact of the distinction between situations and cases under the Rome Statute in national laws on co-operation with the ICC. It argues that this distinction is likely to create difficulties in three areas: (i) the communication of the notitia criminis to the Court; (ii) admissibility issues in proceedings under Articles 18 and 19 of the Statute; and (iii) the efficacy at national level of admissibility rulings by the Court.

According to Israel's Guide to the Mideast Peace Process, charges regarding the illegality of Israeli settlements in the 1967 Occupied Palestinian Territory (OPT) have no foundation in international law. Peace efforts between Israel and Palestine will have no chance of success as long as Israel uses its prolonged military occupation to promote and protect its annexation-in-disguise of the West Bank and East Jerusalem. John Dugard has passed on this hard truth consistently as Special Rapporteur on the situation of human rights in the OPT. The international community should take the same hard line towards the Guide as it has done towards the Hamas Charter. If it wants to establish a just and lasting peace in the Middle East, it should not allow Israel to bend the truth any more in respect of the legality of the Israeli settlements in the OPT as Hamas has done in respect of the illegality of Israel.

In this contribution the reparation possibilities for victims of sexual violence at the Inter-national Criminal Court and at the Trust Fund for Victims and their families are explored. This is done by explaining first of all why victims of sexual violence – and especially women – are in urgent need of reparation during and after conflict, with a special focus on the situation of female survivors of sexual violence in Rwanda. The reparation possibilities for victims of sexual violence at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda are subsequently discussed, followed by a similar discussion with regard to the ICC. Questions such as the nature of the best forms of reparation for victims of sexual violence and at what point they are made are also dealt with. Although the ICC reparations regime offers in theory a good means of providing restorative justice to victims of sexual violence, it is important that the special concerns and needs of such victims are not easily overlooked by the Court and that swift action is taken by the Trust Fund for Victims and their families to address their plight.

Books and Articles in the Field of the Prevention and Peaceful Settlement of International Disputes (Spring 2007). Compiled by Ingrid Kost exclusively from materials available at the Peace Palace Library, The Hague

At the turn of the twenty-first century rapid advances in the life sciences had culminated in the successful cloning of mammals, with the potential for the development of cures to major diseases. It also raised the spectre of the cloning of human beings – a possibility declared repugnant to human dignity by UNESCO in 1997. In 2001, France and Germany initiated a process in the UN General Assembly to negotiate an international treaty banning the reproductive cloning of human beings. What started as a seemingly straightforward proposal soon ran into the cross-winds of the broader debate on the ethical and legal appropriateness of human embryonic stem-cell research. A major confrontation ensued at the United Nations between those states favouring a narrow ban limited to cloning for reproductive purposes, and those insisting on prohibiting all forms of human cloning, including for ‘therapeutic’ purposes. At play was not only a difference in worldview as to the meaning of human dignity in the twenty-first century (and the boundaries on scientific research), but also considerations relating to respect for cultural diversity, the economic consequences of finding cures to major diseases, and the ability of the technological ‘have-nots’ to limit the activities of the technological ‘haves’.

Rachel Murray, Human Rights in Africa: From the OAU to the African Union, Cambridge, Cambridge University Press, 2004, ISBN-13: 9780521839174, ISBN-10: 0521839173, 349 pp., £50.00 (hb).

M. Mubiala, Le Système régional Africain de Protection des Droits de l'Homme, Brussels, Bruylant, 2005, ISBN 280272021X, 299 pp., €65.00.

The essay argues that the absence of an international treaty definition of aggression in international law should not preclude the prosecution of its perpetrators. Two legal regimes of responsibility, namely the prohibition against aggression as an international wrongful act and the crime of aggression have been entangled. Once one separates the criminal liability of individuals from state responsibility, a definition of the crime of aggression can be seen. According to the author, the contours of such a new definition contain the requisite degree of certainty for judicial approaches instead of merely political approaches. Consideration is also given as to whether conspiracy to wage a war of aggression may also be regarded as a separate crime within international criminal law.