This Special Issue is devoted to the commemoration of the 100th anniversary of the Second Hague Peace Conference of 1907. The First Hague Peace Conference took place in 1899, upon the initiative of the Russian czar Nicolas II. Its purpose was to elaborate instruments for the peaceful settlement of future serious international disputes, for the prevention of wars and undue increases of military budgets, and for the codification of the rules of warfare. Twenty-six states participated in the 1899 Hague Peace Conference, and it resulted in three main conventions and three declarations relating to the restriction of armaments, the prohibition of the use of certain weapons, the peaceful settlement of international disputes and the laws and customs of war.

The transfer of intermediate and lower rank indictees from the International Criminal Tribunals for the Former Yugoslavia and Rwanda to competent national jurisdictions is a central component of the so-called completion strategy. When the ad hoc Tribunals contemplate the referral of a case, however, they find themselves hemmed in from two sides. On the one hand, a decision to refer a case will appear justified only if there are strong reasons to believe that national proceedings will be conducted in accordance with international due process standards. On the other hand, the risk that national authorities deny or minimise the responsibility of transferred indictees must be avoided. These two exigencies were given positive expression in the Rules of Procedure and Evidence of both Tribunals, under Rule 11bis. This paves the way for a comparison between Rule 11bis case law and human rights jurisprudence concerning potential violations. For the purposes of this article, comparative analysis provides the basis for asserting that, when the ad hoc Tribunals decide whether or not to refer a case under Rule 11bis, they are bound by human rights standards which go beyond the right to receive a fair trial and are stricter than those normally applicable to a state which is about to extradite or expel an individual.

The United Nations and African Union agreed, late 2006, on conducting a hybrid operation in Darfur, in a remarkable turnaround from the UN's quest to deploy an autonomous force, which, it was anticipated, would take over the African Mission in Sudan (AMIS). This agreement was formalised by Resolution 1769 adopted on 31 July 2007, establishing the United Nations African Union Mission in Darfur (UNAMID). In addition to discussing the various implications of the proposed hybrid operation on the law of peacekeeping and collective security law, this article examines the individual response of the AU and UN to the crisis. It investigates the factors that dictated the AMIS's tepid mandate, and argues that the UN's quest for the Sudan's consent, as a precondition for deploying UNAMID was unnecessary, and that the United Nations Mission in Sudan (UNMIS)'s original mandate provides a solid legal basis for enforcing the will of the international community in Darfur.

The 1907 Hague Peace Conference was the only worldwide diplomatic summit ever before WW I and the League Era. Summoned in the wake of war between the waning Russian and rising Japanese empires, the concluding of the epochal Anglo-French Entente and amidst growing naval rivalry between Germany and Britain, the Conference met at a highly critical moment. It boldly and very pragmatically addressed the many vexing questions issuing from the distinctly shifting power balance on the global and European planes. The intriguing debate between powers great and small, western and non-western traditions, and two altogether different outlooks on the role of the law in global society – that of stern diplomats in the Austinian tradition and the champions of the Institut – unerringly augured the complexities of debate within later League and UN bodies.

The Conference's failure of immediate, palpable result proved ominous. Incapacity to solve the political riddles of international adjudication – the selection of judges, the composition of benches – along with impotence to curb naval rivalry, sealed the fate of peace. Still, it was the nations' obstinacy which barred change, not recalcitrance of subject-matter or lack of insight. In fact, at The Hague, in 1907, the legal and intellectual blueprint of a new world society was first advanced.

While the overwhelming majority of states do not practice anticipatory self-defence, believing that it would create a dangerous precedent, it is ironic that many scholars in the area support the idea of it. After September 11, the legality of anticipatory self-defence is attracting increasing support. What makes the matter worst is the pronouncement of a preventive style of self-defence in the National Security Strategy of the US, which goes far beyond the traditional concept of ‘anticipatory’ self-defence. The old doctrinal debate has resurfaced with stronger vigour. The present article is an attempt to re-appraise the debate and test the legality of anticipatory self-defence. The article objectively interprets Article 51 of the Charter in light of canons of treaty interpretation and explores customary international law of the time. It re-examines the Caroline formula and affirms that it had not been established as customary international law before September 11, owing to the lack of widespread and consistent state practice and opinio juris. The article concludes that although state practice after September 11 tends to condone the use of force against imminent terrorists attacks, Article 51 of the UN Charter is still a good law that can cope with the normal inter-state use of force. Despite the flaws of the United Nations, the Charter-based system of world order can very well serve the international community even in the context of the 21st century world order.

On 13 October 2005, the International Criminal Court (ICC) Pre-Trial Chamber II unsealed the warrants of arrest for five senior leaders of the Lord's Resistance Army/Movement (LRA/M) for crimes against humanity and war crimes committed in Uganda since July 2002. While these warrants were yet to be executed, the Ugandan government entered negotiations with the LRA/M rebels. As a result Uganda's President Yoweri Museveni, disregarding the ICC arrest warrants, announced a ‘total amnesty’ for the LRA combatants in July 2006 on the condition that the rebels renounced terrorism and accepted peace. Following the amnesty offer, an agreement on cessation of hostilities between the Ugandan government and the LRA/M was concluded with effect from 29 August 2006. This article considers the question whether a ‘total amnesty’ to individuals indicted by the ICC may be binding upon the ICC.

The present article analyses threats of armed force by states against other states. After determining what conduct amounts to a ‘threat of force’, the current status of its prohibition is investigated. In particular, this article contends that the prohibition of the threat of force contained in Article 2(4) of the UN Charter reflects customary international law. The fact that only a few states have supported the legality of threats for certain law enforcement purposes prevents the prohibition of any threats of force from being qualified as jus cogens. This status should be limited to the prohibition of threats of aggression, which constitutes the common denominator of the practice and opinio juris of all states.

The consequences of threats of force under the law of treaties, the law of state responsibility and international criminal law are then discussed, in particular treaties, the conclusion of which has been obtained by the threat of force in violation of the UN Charter are void ab initio. Article 41 of the ILC Articles on State Responsibility could also entail a duty of non-recognition of situations procured by the threat of aggression. On the other hand, threats of aggression (let alone threats of less serious forms of the use of force) cannot be qualified as international crimes entailing individual responsibility.

As to remedies at the disposal of the victim state, armed responses to threats of force would be lawful only within the limits of self-defence, and only if the threatened armed attack is imminent enough to meet the Caroline requirements. On the contrary, coercive responses to non-imminent armed attacks are still prohibited under contemporary international law.

While there have been increasing demands for strengthening UN capacity for peacebuilding, recent peacebuilding operations under UN transitional territorial administration have obscured and downgraded the importance of normative and legal questions and have failed to address the right to self-determination in substance. It is argued that the legal issues surrounding such operations, including the legal basis for establishing transitional administrations, the legal status of the territories under administration and the legal regulations governing the powers given to UN administrators, must be contemplated in such a way as to focus fully on the internal and substantive aspects of the peoples' right to self-determination.

The US Supreme Court has recently decided the case of Sinochem Int'l Corp. Ltd v. Malaysia Int'l Shipping Corp. This is another landmark case regarding the doctrine of forum non conveniens, which resolved a long-term split among the circuit courts. A federal court will now be able to decline a case by the doctrine of forum non conveniens without conclusively determining the issue of personal jurisdiction or subject matter jurisdiction. The decision of the US Supreme Court is laudable in terms of procedural economy and judicial efficiency. However, to reach the decision, the Court adopted a pragmatic approach. The decision does not entirely conform to the nature and definition of the doctrine. Furthermore, the Court avoided the important question regarding conditional dismissal. It is a fair reading of the Court's decision that there is no mandatory order between jurisdiction and forum non conveniens and, in the future, a federal court can dismiss a case either by lack of jurisdiction or by forum non conveniens, whichever is easier to be determined. This case may also have impact outside the area of forum non conveniens.

Following the 9/11 attacks, the US declared a war on terrorism, principally aimed at Al Qaeda. The declaration could be dismissed as a sleight of words were it not for the fact that, for the US and for those it affects, it has real and serious legal consequences. The US claims that its declaration of a war on terror is merely an act of self-defence as in its view, Al Qaeda declared a state of war through the 9/11 attacks and these initiated an armed conflict to which the laws of armed conflict apply. Although the characterization of the war on terror as an armed conflict has been rejected by many authorities, the view that the 9/11 attacks were an armed attack giving rise to the rise of self-defence has been widely accepted.

If the 9/11 attacks are armed attacks giving rise to the right of self-defence but the attacks did not constitute an armed conflict; as an act of war, they would not be subject to the laws of war. This would disconnect jus ad bellum and jus in bello in relation to acts of war. If there is a state of war without there being an armed conflict, this would allow the US to take certain measures in relation to the terrorist threat but would not give it the more extensive liberties associated with an actual wartime situation.

To-date, the proliferation and unrestricted transfers of small arms and light weapons (SALW) pose a threat to peace and security, particularly in conflict torn regions and countries. As part of collective responses to this problem, the Security Council intensified Chapter VII arms embargoes in the aftermath of the Cold War. These bans are arguably seen by many as the only legal restrictions on the trade in SALW under international law. However, due to a lack of appropriate monitoring and enforcement mechanisms, the bans are often violated by states and non-state actors. In response to this the Council has taken a range of steps, including establishing and empowering sanctions' committees, monitoring panels and groups of experts, to oversee compliance and conduct investigations on alleged violations. This article inquires into three areas of interest: first, the link between the small arms challenge and international peace and security and the powers and responsibilities of the Security Council to respond to this challenge; secondly, the nature, scope and major problems of the embargoes; and finally, the features of recent developments in the application of the bans. It is submitted that whilst the inherent problems of these bans, most crucially the lack of political commitment of states to comply with the measures and respond to violations remain to be persistent contemporary challenges, the newly introduced monitoring mechanisms are positive attributes to the effectiveness of the embargoes.

In the practice of modern international law, if a certain understanding is advanced as the correct interpretation of a treaty provision, the proposition is assessed using the rules of interpretation laid down in the 1969 Vienna Convention on the Law of Treaties, Articles 31–33. This article is concerned with the relationship held in such an interpretation process between the preparatory work of a treaty – described as a supplementary means of interpretation in Article 32 – and the three primary means of interpretation that can be used by an interpreter citing Article 31. Judged by the wordings of Articles 31 and 32, the relationship between the primary and the supplementary means of interpretation is hierarchical. As a consequence, preparatory work may be used to determine the correct meaning of a treaty provision, only on the condition that in the earlier stages of the interpretation process, the application of Article 31 has been found to leave the meaning of the interpreted treaty ‘ambiguous or obscure’, or to lead to a result ‘which is manifestly absurd or unreasonable’. Several scholars in the area have recently argued for granting the preparatory work of a treaty a more prominent role in the interpretation process. As this article will show, such a claim builds on arguments that do not stand up to careful legal analysis. It should, therefore, be discarded as unsound.

This casenote outlines and analyses the US Supreme Court's 2006 decision in Hamdan v. Rumsfeld. In this case the Court held that suspected terrorists held in Guantánamo Bay were entitled to bring habeas corpus petitions to federal courts and to the benefits of the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions. The US Supreme Court eschewed the tradition of judicial deference to overturn the President's determination that military commissions could be established without congressional approval in the circumstances of the ‘War on Terrorism’. The casenote goes on to consider the aftermath of this decision, including the introduction of the Military Commissions Act 2006, and the implications of this Act for the future of Guantánamo Bay litigation.

A central concept found in the 1907 Hague Regulations Respecting the Laws and Customs of War on Land is the notion of ‘belligerents’. The formal status of ‘belligerents’ or, in more modern terms, ‘combatants’, is limited to international armed conflicts. One of the crucial functions that the status fulfils relates to distinguishing those who are legitimate objects of attack from those who enjoy protection. Combatants are legitimate targets, while civilians are not, unless and for such time as they directly participate in hostilities. Civilians are defined as all those who are not combatants. Because the formal status of ‘combatant’ is limited to international armed conflicts, the principle of distinction cannot be conceptualized in the same way in non-international armed conflicts. Who, then, may be targeted in non-international armed conflicts and under what conditions and who is conversely immune from being made the object of attack and enjoys protection against the dangers arising from military operations by virtue of the status of ‘civilian’? This article argues that, in principle, members of armed forces of both state and non-state parties to a non-international armed conflict are legitimate targets and all those who are not such members are to be considered civilians. However, the practical operationalisation of the principle of distinction in this way faces a number of difficulties. Due to the variety and changing nature of organised armed groups, a more differentiated approach is required in striking a reasonable balance between military considerations and humanitarian concerns.

Despite great efforts made to conform maritime practice at The Hague in 1907, and later in London in 1909, the sheer pace of industrial competition in evidence by 1914 meant not only that disarmament remained out of the question, but further, that new theories of wartime necessity might over-ride the many developed, ‘civilised’ wartime restraints, if to do so favoured victory. One body of rules quickly disregarded was that for armed neutrality at sea, by which is meant a state stance of abstention and impartiality declared on the outbreak of war, in exchange for continued neutral rights of peaceful maritime commerce. Illustrative of the impact industrial warfare had on rules of maritime neutrality was the infamous Baralong incident of 9 August 1915, in which a German submarine was sunk by the British Q-ship. It is argued, however, that the unrestricted manner in which World War 1 was fought was not caused by any deficiency of the known rules of maritime neutrality, per se. Instead, the essence of that war may be sought in political, chauvinistic demands for ultimate success, and an associated greed that would ultimately force neutral states to share the costs of a conflict not of their making.