From the Court’s press release:

Today, 26 April 2013, Leiden University won the final round of the International Criminal Court (ICC) Trial Competition, English version, held in ICC Courtroom I in The Hague (Netherlands). Osgoode Hall Law School of York University (Canada) and Bond University (Australia) won, respectively, second and third place. The Best Speaker award went to Katherine Stewart of Osgoode Hall Law School. Leiden University’s winning team was composed of John Doyle, Sophie Beelaerts van Blokland, Uzay Aysev, Alexander Wills, Joe Holt, Daniel Huck and Adrian Plevin.

Congratulations to Leiden and the runners up. I’m particularly delighted — and completely unsurprised — that the winning team included Alexander Wills, who was one of the smartest students I’ve ever had the pleasure to teach. It’s not every day that an LLB student publishes an article in the Journal of International Criminal Justice — in the special issue dedicated to the crime of aggression, no less. Employers: he’s one to keep an eye on.

I cannot find the relevant document on the ICC website, but Kenya’s CapitalFM is reporting that Judge Christine van den Wyngaert, sitting in the Trial Chamber, has withdrawn from the case against Uhuru Kenyatta because of concerns about the prosecution’s behavior:

In her opinion the prosecution failed to disclose to the Pre-Trial Chamber on the credibility of witness four and disclosing new evidence after confirmation stage.

“There are serious questions as to whether the prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation. I believe that the facts show that the prosecution had not complied with its obligations at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this Chamber started,” she stated.

She further agreed with Kenyatta’s argument that the prosecution introduced evidence and witnesses that had not been disclosed before.

“I stress the concerns expressed in the decision about the overwhelming number of post confirmation witnesses and the quantity of post-confirmation documentary evidence, as well as the very late disclosure of the latter.

Wyngaert observed that even though the prosecution faced challenges it has not justified how so many witnesses were interviewed after charges against Kenyatta were confirmed.

“The Prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation. The mere invocation by the Prosecution of generic problems with the security situation in Kenya, without explaining how this situation affected each of the individuals involved, does not adequately justify the extent and tardiness of the post-confirmation investigation,” she opined.

However in her concurrence with the other two judges, she explained that the hitches on the side of prosecution were not weighty enough to warrant a referral to the Pre Trial Chamber or withdrawal of charges against Kenyatta.

Wyngaert was replaced by Judge Robert Fremr who was previously assigned to the Trial Division 4.

I’m not sure quite what to make of this, and it’s difficult to draw conclusions without reading Judge van den Wyngaert’s concurrence. That said, three (tentative) points. First, and perhaps most obviously, Judge van den Wyngaert’s withdrawal casts the prosecution in an extremely unflattering light. I cannot imagine that the Judge would have withdrawn unless she was profoundly concerned by the prosecution’s actions.

Second, I have serious reservations about the Judge’s decision to withdraw, given that — ironically — it clearly benefits the prosecution. If Judge van Wyngaert’s concerns were simply procedural, the prejudice to the defence might be minimal. But the CapitalFM article seems to imply that the Judge has questions about the merits of the prosecution’s case — its failure to conduct a thorough investigation in particular. (Recall that Article 54 of the Rome Statute provides that the prosecution must, “[i]In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.”) As a result, Judge van den Wyngaert’s withdrawal may well replace a judge who is skeptical of the prosecution’s case with one more inclined to accept it. That hardly seems fair to the defence.

Third, and finally, I am not sure whether there is even a legal basis for Judge van den Wyngaert to withdraw. Art. 41(1) of the Rome Statute provides that “[t]he Presidency may, at the request of a judge, excuse that judge from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence.” The key is the final clause, because Rule 35 of the RPE says that “[w]here a judge, the Prosecutor or a Deputy Prosecutor has reason to believe that a ground for disqualification exists in relation to him or her, he or she shall make a request to be excused” (emphasis added). A request to withdraw from a case thus seems to require the presence of one of the grounds for disqualification listed in Rule 34 — personal interest in a case, conflict of interest, etc. Disagreeing with the prosecution’s conduct in a case is not such a ground for disqualification, although it is important to acknowledge that Rule 34 does not make the list exclusive (“inter alia“). Even so, I think it sets a very bad precedent for the Presidency to agree to excuse a judge on the ground that she has a problem with the prosecution’s conduct. That hardly seems like a ground for disqualification, no matter how liberally such grounds are construed.

UPDATE: Zach was kind enough to provide a link to Judge van den Wyngaert’s concurrence. The concurrence reinforces my point that the Judge’s withdrawal is significantly unfair to the defence, because it deprives Kenyatta of a judge who was clearly willing to question the strength of the prosecution’s evidence. Paragraph 4 is particularly revealing:

Finally, there can be no excuse for the Prosecution’s negligent attitude towards verifying the trustworthiness of its evidence. In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in the Prosecution’s case. This negligent attitude is particularly apparent in relation to Witness 4′s evidence because, as the Prosecution concedes, ‘the Office as a whole was on notice, prior to the confirmation hearing, of the inconsistencies in the account Witness 4 gave during his [second] screening’. The Prosecution offered a number of explanations for overlooking the problems with Witness 4′s evidence. However, what all these explanations reveal is that there are grave problems in the Prosecution’s system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff. Clearly, thorough and comprehensive due diligence with regard to the reliability of the available evidence is an ongoing obligation of the Prosecution under article 54(1)(a), which is as important as the collection of that evidence itself.

If I were the defence, I would try to challenge Judge van den Wyngaert’s withdrawal. Nothing in the Rome Statute expressly permits a party to challenge or appeal a judicial disqualification, but such a right would seem to be implied by Article 41(2)(b), which provides that “[t]he Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph.” The right to request disqualification should be accompanied by the right to challenge the same.

UPDATE 2: Writing for Reuters, Thomas Escritt says that Judge van den Wyngaert withdrew from the Kenyatta case because of her workload, not because of her criticisms of the prosecution. I do not doubt that Escritt’s reporting is more accurate than the Kenyan media’s, but I find it difficult to believe that there is no connection between the Judge’s criticisms and her decision to withdraw. She certainly could have withdrawn from a different case — one in which she had not savagely criticized the prosecution — instead. “Workload” strikes me as little more than a convenient excuse — and I stand behind the suggestion that the defence should challenge the Judge’s decision to withdraw. Still, it is important to acknowledge Escritt’s reporting.

Professor David Kaye has a thoughtful essay in the latest issue of Foreign Affairs analyzing the growing level of cooperation between the U.S. and the ICC.   He correctly notes that the U.S. is not only no longer actively hostile, but it has taken various steps in recent years to actively support the work of the ICC (most notably in Uganda against the LRA).

We’ve already discussed the relationship between U.S. conservatives and the ICC here, and I suspect the future of US-ICC cooperation will depend on the views of U.S. conservatives who can still muster 40 plus votes in the Senate (and may get more soon).  As Kaye notes, there is no prospect of U.S. ratification of the ICC Rome Statute now or in the foreseeable future. And the Palestine investigation that Kevin mentions below is going to return the ICC to the U.S. Congress’ attention in the context of Israeli relations, which is the absolute worst context for the ICC.

I would say the ICC’s only hope of US ratification one day lies in a slow cultural change. Perhaps this new NBC drama “Crossing Lines”  will help.  Then again, since it seems to propose that the ICC will operate with a shadowy investigative team of former cops, I wonder if this might backfire…

Two years ago, I wrote a long post analyzing the most serious charge in Bradley Manning’s court martial — aiding the enemy, a violation of Art. 104 of the Uniform Code of Military Justice (UCMJ) and 10 USC 904. I claimed in the post that someone like Bill Keller, the Executive Editor of the New York Times during the WikiLeaks era, could not face similar charges, because the UCMJ applies only to soldiers.

I was wrong.

Here is the text of Art. 104 (my emphasis):

“Any person who—

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”

The key here is “any person.” Such broad personal jurisdiction is very unusual among the UCMJ’s punitive articles; the only other ones that use it are Art. 83 (fraudulent enlistment in the armed forces) and Art. 106 (spying). All of the other punitive articles have more limited jurisdiction, applying only to “any person subject to this chapter” (such as solicitation, Art. 82) or “any member of the armed forces” (such as desertion, Art. 85). The difference is critical, because it means that a person does not have to be subject to the UCMJ to be subject to court-martial for aiding the enemy. Indeed, both Art. 104 and Art. 2 in the Manual for Courts Martial (MCM) are explicit on that point. Here is the MCM’s explanation of Art. 104 (emphasis added):

Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court-martial or by military commission.

And here is the MCM’s explanation of Art. 2 (emphasis added):

(1) Authority under the code. Article 2 lists classes of per­sons who are subject to the code. These include active duty personnel (Article 2(a)(1)); cadets, aviation cadets, and midship­ men (Article 2(a)(2)); certain retired personnel (Article 2(a)(4) and (5)); members of Reserve components not on active duty under some circumstances (Article 2(a)(3) and (6)); persons in the custody of the armed forces serving a sentence imposed by courtmartial (Article 2(a)(7)); and, under some circumstances, speci­fied categories of civilians (Article 2(a)(8), (9), (10), (11), and (12); see subsection (3) and (4) of this discussion). In addition, certain persons whose status as members of the armed forces or as persons otherwise subject to the code apparently has ended may, nevertheless, be amendable to trial by court-martial. See Article 3, 4, and 73. A person need not be subject to the code to be subject to trial by court-martial under Articles 83, 104, or 106.

There is no reason, then, why Bill Keller could not be court-martialed for aiding the enemy. And indeed, for all the reasons I discussed in my post two years ago, he is no less guilty of that crime than Bradley Manning. Here are the elements of aiding the enemy via communication:

(5) Communicating with the enemy.

(a) That the accused, without proper authority, communicated, corresponded, or held intercourse with the enemy, and;

(b) That the accused knew that the accused was communicating, corresponding, or holding intercourse with the enemy.

If Manning has aided the enemy, so has Bill Keller. The crux of the government’s argument is this (see Specification 1 on the charge sheet): (1) Manning gave classified documents to WikiLeaks; (2) Manning knew that WikiLeaks would publish the documents on the internet; (3) the “enemy” — basically al-Qaeda and its associated forces — had access to the documents on the internet; (4) Manning thus indirectly communicated with the enemy. That argument, however frightening, is unfortunately far from frivolous. The crime does not require any intention to communicate with the enemy, much less an intention to harm the United States; as the MCM commentary says,”the intent, content, and method of the communication, correspondence, or intercourse are immaterial.” Nor does the crime require proof that the enemy actually received the prohibited communication: “[t]he offense is complete the moment the communication, correspondence, or intercourse issues from the accused.”

The government’s argument obviously applies to Bill Keller no less than to Bradley Manning. Indeed, in one respect, the case against Keller is even stronger than the case against Manning. Manning “communicated with the enemy” indirectly: he gave the documents to WikiLeaks; he did not post them on the internet himself. Keller, by contrast, authorized the New York Times to post Manning’s documents on its website, where anyone — al-Qaeda included — could find it. His communication with the enemy was thus direct, not indirect.

To be clear, I am categorically opposed to prosecuting anyone, Bradley Manning or Bill Keller, for “aiding the enemy” in circumstances like these. It is impossible to overstate the chilling effect the government’s argument — that causing intelligence to be posted on the internet qualifies as communicating with the enemy — will have on media freedom. But there is not simply moral equivalence between Manning’s actions and the actions of the New York Times. There is legal equivalence, as well. So if Manning deserves to be court-martialed for aiding the enemy, Bill Keller should be in the dock with him.

Literally.

In the wake of Obama’s memorable statement, a number of bloggers have questioned whether the Boston bombings deserve to be labeled “terrorism.” Most of those bloggers — such as the excellent Ali Abuminah here – emphasize that many US definitions of terrorism require the violent act in question to be politically or ideologically motivated, which is still an open question with regard to the Tsarnaev brothers’ actions.

I’m sympathetic to this position — and I wholeheartedly agree with Abuminah’s observation that “acts of violence, especially mass shootings, carried out typically by white males, are immediately labeled as the acts of ‘disturbed individuals’ while the acts of a person identified as ‘Muslim’ are to be labeled ‘terrorism’ regardless of the facts.” But it is important to acknowledge that not all definitions of terrorism require a political or ideological motivation — including the one that is most relevant to the Boston bombings, the International Convention for the Suppression of Terrorist Bombings (“Terrorist Bombing Convention”), which is codified in the US Code at 18 USC 2332f. Here is the international definition:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

And here is the US definition:

(a) Offenses -

(1) In general – Whoever unlawfully delivers, places, discharges, or detonates an explosive or other lethal device in, into, or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility -

(A) with the intent to cause death or serious bodily injury,
or
(B) with the intent to cause extensive destruction of such a place, facility, or system, where such destruction results in or is likely to result in major economic loss,

shall be punished as prescribed in subsection (c).

The Boston bombings clearly qualify as terrorism under either definition. There is also no question that the Terrorist Bombing Convention applies, because one of the victims of the bombings was a Chinese national. (The Convention excludes acts that take place in one state and involve only nationals of that state.) The US version is a bit more complicated, because 18 USC 2332f requires a bombing to have a substantial effect on foreign or interstate commerce if jurisdiction is predicated — as it would be here — on the fact that the bombing killing a foreign national. But I agree with Bobby Chesney that the bombings almost certainly do have the requisite effect.

Again, I think it’s unfortunate that the label “terrorism” is almost always reserved for violent acts committed by Muslims, even though domestic groups (from right-to-lifers to neo-Nazis) pose a much greater threat to Americans living in the US. But that doesn’t change the fact that setting off bombs in the middle of a marathon does indeed qualify as terrorism.

NOTE: I should add that, as a normative matter, we should restrict the term “terrorism” to violent acts that are politically or ideologically motivated. I think it is precisely the presence of such a motivation that distinguishes terrorism from “ordinary” criminality. Alas, the international community does not seem to agree, at least for certain kinds of weapons.

The Pre-Trial Chamber has granted the OPCD’s request to withdraw from the case and has appointed the OPCD’s chosen replacement, John RWD Jones QC, to represent Saif until such time as he is either able to choose his own lawyer or the ICC finally rules on Libya’s admissibility challenge. Jones is a fantastic choice — he successfully represented both Oric and Markac at the ICTY, established the Defence Office at the Special Court for Sierra Leone, and is one of the world’s leading extradition scholars and practitioners.

That said, the OPCD’s rationale for withdrawing should give us all pause:

The OPCD submits that an imminent depletion in staffing will disrupt the continuity of Mr Gaddafi’s representation and will significantly affect its ability to fulfil its mandate in a timely and effective manner. The OPCD suggests that replacement of counsel for Mr Gaddafi at this juncture would facilitate a smooth transition in representation and would ensure that new counsel has sufficient time to acquaint themselves with the case in advance of potential appellate proceedings.

Reading between the lines, it seems clear that the OPCD is facing a significant funding crisis. That’s a serious problem, given the critical role the OPCD plays in the overall defence scheme at the ICC.

The OPCD deserves our praise for its advocacy of Saif’s interests — efforts that never wavered, even when Melinda Taylor and her colleagues were illegally and unconscionably detained by the Libyan government. Best of luck to Jones, whom I have no doubt will do an equally superb job.

So reports the Kuwait News Agency. The building is expected to be completed in late 2015. Here is the winning design:

You can read more about the design, and see more artists renderings, here. It’s not a bad design, but it’s a bit too high-modernist for my taste. I preferred the one by Wiel Arets Architects & Associates that won third prize in the ICC’s competition. You can find it here.

How the financially-strapped Court is paying for its fancy new digs — which are expected to cost 190,000,000 euros — is anyone’s guess.

An opinion piece in Al-Jazeera by an international lawyer who works with the Palestinians, John Whitbeck, reports some interesting comments by Fatou Bensouda about Palestinian ratification:

During a public discussion held at the Academie Diplomatique Internationale in Paris on March 20, Fatou Bensouda, the Prosecutor of the International Criminal Court, addressed the potential membership of Palestine in the ICC. During the question time, she was asked:

“If and when the State of Palestine, whose state status has now been overwhelmingly confirmed by the UN General Assembly, revives its application for ICC membership, what will be the procedure for considering its application and, if it is approved, would the court’s jurisdiction be retroactive to 2002, permitting prosecutions for crimes already committed in Palestine or by Palestinians?”

She started her reply by recalling why Palestine’s initial application was not approved — essentially, as was clear from the ICC’s response, the court’s view that it was not the role of the court, but rather the role of the UN General Assembly, to determine who was or was not a state. She then went on to say that, now that the UN General Assembly had made its determination that Palestine is a state, “the ball is now in the court of Palestine”, “Palestine has to come back” and “we are waiting for them”.

While she said, unsurprisingly, that any new application would have to be considered, there was no ambiguity or suspense as to the result of the requisite consideration. It was clear that, in her eyes, ICC membership for the State of Palestine was Palestine’s for the asking. There was even a hint of puzzlement that the ICC had not heard from Palestine subsequent to the UN vote. 

On the issue of retroactivity, she said that she did not think that any retroactivity could extend back to the birth of the court in 2002 – at most, if prior to Palestine’s formal accession to the Rome Statute, to November 29, 2012, when the UN General Assembly determined the issue of Palestine’s state status.

There is nothing particularly new here, but the retroactivity comment is useful. As a theoretical matter, I think the ICC could determine that Palestine qualified as a state prior to the UNGA resolution upgrading its status. But I think that the Court would be well-advised to take a conservative approach to Palestinian ratification — and as Whitbeck notes in his piece, the less retroactive Palestine’s acceptance of the Court’s jurisdiction (perhaps even purely prospective, from the date of ratification), the more difficult it will be for Israel to complain about it.

That said, as I’ve pointed out before, Palestine has reason to be wary of even prospective ratification. The ICC would find it much easier to prosecute Hamas’s rocket attacks on Israel than Israel’s expansion of the settlements or disproportionate attacks on Gaza.

[Darryl Robinson is Assistant Professor at Queen’s University Faculty of Law]

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

I am deeply grateful to Jens David Ohlin and Mark Drumbl for participating in this symposium. Their comments are valuable and insightful, just as one has come to expect from their work. I am privileged to have the benefit of their thoughts.

Jens advances an important clarification that domestic legal systems should not be seen as idealized systems and that liberal inquiry must be based on ‘deeper principles’ of criminal law as it ought to be.  I emphatically agree, and this is an important point to highlight.  I argue in my article that the aim of the liberal critique is not the replication of articulations of principles from national systems, but rather upholding the underlying commitment not to treat individuals unjustly.  In Jens’ terms, it’s a search for deeper principles.  Indeed, I would say that our endeavor is not a uni-directional one of applying criminal law theory to ICL.  Rather, it is a bi-directional process in which the special problems of ICL can bring about new realizations about our first principles. The ultimate aim is that ICL doctrines are consistent with some defensible concept of just treatment of individuals.

I agree with Jens that domestic systems can depart just as egregiously from important principles. As I have suggested elsewhere, I think the greatest difference between national systems and ICL in terms of departures is the type of reasoning associated with departures (a more openly anti-liberal law-and-order agenda versus more subtle distortions of internationalist liberal heuristics).

Further supporting Jens’ point, I would gesture to a new trend in ICL jurisprudence.  While there was a tendency in earlier days toward exuberantly expansive doctrines, much of the most recent jurisprudence seems to have internalized the liberal critique.  Indeed, there is even a danger that ICL could overcorrect, adopting unnecessarily narrow and restrictive doctrines to avoid any risk of breaching principles.  Thus, a clarified concept of justice is doubly useful.  It not only delineates what ICL should not do, it also clarifies the zone of permission, where there is no deontological impediment to the pursuit of sound social policy.

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[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington and Lee University School of Law.]

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

Darryl Robinson is among the most exciting thinkers currently engaged with international criminal law (ICL). In his latest piece, the subject of today’s discussion, he surveys the field. While much of academic work is given over to exploiting fissures and wedges, Darryl yearns for compatibilities. Ever the optimist, he searches for bridges and synergies.

Darryl – rightly, I think – notes that ICL’s roots lie in a teleological formalism. Motivated by the very human impulse to pursue accountability for the equally human impulse to inflict great harms, the formalists established the foundations and charted the territory. Celerity was the name of the game; time was of the essence. But making sense of the macabre isn’t easy, so the formalists soon had to contemplate instrumental short-cuts. One of these, as Darryl identifies, was to the principle of legality. Acting in the name of the law necessitated diluting the purity of the law. Retroactivity, duress, specific intent, and the causality of contribution became viewed as vaguely inconvenient instead of centrally constitutive.

These compromises, in turn, spawned a second wave of scholarship, which Darryl describes as the liberal critique. This critique recovered the value of legality for ICL. Its advisories, however, also risked rendering the system unworkable, too exigent, and somewhat unwieldy. This critique may have overemphasized general principles of law drawn from ordinary systems, rather than built lex specialis for violence in extremis.

A third critique then emerged, which Darryl portrays as the critique of the liberal critique. This critique – in which Darryl generously incudes my own efforts – intimates that the collective nature of atrocity is such that compromises to liberal legalism, while not necessarily justifiable, are eminently understandable. In this regard, the critique of the liberal critique could be seen as coming full circle and supporting the work, and the compromises, of the formalists. Alternately, the critique of the liberal critique could be seen as nihilistic – nothing works, so let’s do nothing. But neither caricature gets to the heart of the critique of the liberal critique. The focus of this critique is on methodology and ordinality, that is, questioning why the criminal law should be such a primadonna in the pursuit of post-conflict justice. This critique does not suggest inaction but, rather, exceeding present efforts and, in addition, working differently. This critique begins with an epistemological inquiry: from where do we know what we know about mass atrocity? It ends with an assumptive challenge: why is it, exactly, that we believe that the criminal law has so much to offer and yields such a high return on an at times astronomical investment?

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[Jens David Ohlin is Associate Professor of Law at Cornell University Law School.]

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

I agree with almost everything in Darryl Robinson’s plea for a cosmopolitan liberal approach to international criminal justice.  Robinson’s article sketches out the development of ICL scholarship, noting the beginnings of the field, followed by the liberal critique of early ICL development, and then the counter-critique of the liberal critique that emphasized the need for sui generis theories to deal with the unique nature of international atrocities.  The story is convincing and tightly explained.  Although it might be difficult to identify particular scholars with just one of these schools of thought, it is certainly possible to identify particular arguments as fitting into one of these moments in the dialectic of ICL.

I do, however, want to point out an important trend in the development of the criminal law that cuts across the dialectical story emphasized by Robinson.  This won’t suggest that Robinson has it wrong – far from it – though I think it does complicate the picture somewhat.

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[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

This symposium launches our second year of collaboration with Opinio Juris, which we hope to be as fruitful as the first in combining the in-depth discussions that arise in the Leiden Journal of International Law with the dynamic online community of the blogosphere. In order to start the new year with a bang, we bring you, from Volume 26-1 of LJIL, two discussions of fundamental issues of international law: the functions of international tribunals and the philosophy of international criminal law.

The first discussion has as a starting point the article by Armin von Bogdandy and Ingo Venzke entitled On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority. In this piece, the authors suggest to look beyond the traditional dispute settlement function of international courts in order to assess other functions, such as law making and control and legitimation of authority exercised by others. This is, for the authors, the only way to better understand the role and place of international courts in the international legal order as exercising public authority and requiring ‘democratic legitimation’. In their thoughtful reactions, Ruti Teitel, from New York Law School, and Andreas Follesdal, from the University of Oslo, both question the choices made by the authors of the article. They mostly question the choice of ‘functions’ (why these and not others?) and the basis for legitimacy of international tribunals (why ‘democratic’ legitimacy? In whose name?). I share the methodological concerns of the commentators in this respect, and would even go a little further on the question of functions and legitimacy.

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