Perspectives

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When consultations fail to deliver consensus – electing the third ICC Prosecutor by unprecedented vote

by Phoebe Copeland and Keilin Anderson | 29 May 2021

On 12 February 2021, the Assembly of States Parties (ASP) of the International Criminal Court (ICC) elected Karim Khan QC as the Court’s next Prosecutor. The election followed a series of formal consultations between States Parties, which were constructive and narrowed the field, but ultimately failed to identify a consensus candidate. As a result, the election of the Prosecutor was resolved by secret ballot for the time since the establishment of the Court in 2002. Khan will replace outgoing Prosecutor, Fatou Bensouda, on 16 June 2021 and will serve a nonrenewable term of nine years as Prosecutor. Khan’s election comes at an important juncture for the Office of the Prosecutor (OTP)...

The COVID-19 Pandemic and Trade-Related Security Exceptions: An Analysis of the Flexibility under International Law

by Muhammad Zaheer Abbas | 29 May 2021

The COVID-19 pandemic has raised serious concerns about affordable and equitable access to the needed health technologies. The patent-based pricing model of health technologies further exacerbates these concerns. This paper critically evaluates Article 73(b) of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (WTO TRIPS Agreement) to answer the key question: whether this safeguard provision can be invoked by WTO Member States in response to COVID-19 in order to improve access to critically needed health technologies. This is an important question because access to health technologies is a matter of life and death in a pandemic situation....

Ensuring Respect for International Humanitarian Law Well Beyond the Battlefield

by Marnie LLoydd and Eve Massingham | 29 May 2021

States have a responsibility to create an environment conducive to all States’ capacity to build respect for the laws of armed conflict (also known as international humanitarian law or IHL). This is just one expression of the obligation found in Common Article 1 to the Geneva Conventions (and Additional Protocol I and III thereto), to respect and ensure respect for IHL. As is explored further in the recently published volume Ensuring Respect for International Humanitarian Law, there are a number of different ways in which States fulfil this obligation, and challenge it, in their conduct with regard to other States and other entities. The obligation to respect and to ensure respect for IHL...

In Law and Practice: Australia’s Obligation to Prohibit Child Detention in the Context of International Migration

by Kristie Bluett | 31 Mar 2021

More than three years have passed since the United Nations Committee on the Rights of the Child issued new general comments pronouncing immigration-related detention of children to be a clear violation of the Convention on the Rights of the Child (CRC). However, many States parties to the CRC, including Australia, have failed to adjust their laws and practices to comply with the new international standard. It is time for them to do so. Immigration Detention Violates the Child’s Best Interest On 16 November 2017, the Committee on the Rights of the Child published two Joint General Comments together with the Committee on the Protection of the Rights of All Migrant Workers and Members of...

Protecting equality in the context of the proliferation of artificial intelligence technology

by Tetyana Krupiy | 31 Mar 2021

The advances in artificial intelligence technology create an imperative to protect individuals from discrimination in the context of automated decisions. In order to meet their obligations under Article 26 of the International Covenant on Civil and Political Rights (ICCPR) states need to adopt a holistic and multi-pronged approach to regulation. Anna Lauren Hoffmann coined the term “data violence” to talk about incidents when developers gather data and program artificial intelligence systems in a manner which results in harmful outcomes for individuals. Hoffmann elaborates that, “Those choices are built on assumptions and prejudices about people, intimately weaving them into processes and...

Legal Acts and Legal Facts: The Mauritius/ Maldives Maritime Boundary Dispute in the Chagos Archipelago

by Karen N Scott | 23 Feb 2021

On 28 January 2021 a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) delivered its decision in the preliminary objections stage of the Indian Ocean maritime boundary dispute between Mauritius and the Maldives. Belying its dry nomenclature, this case has implications well beyond the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The Special Chamber dismissed the jurisdictional objections of the Maldives and proceeded on the basis that Mauritius is the relevant sovereign coastal state for the Chagos Archipelago, following the 2019 Advisory Opinion of the ICJ on the Legal Consequences of the Separation of the Chagos Archipelago from...

Leadership Liability for Torture: Complementarity and the age-old problem with complicity in the UK and Australia

by Elies Sliedregt and Felicity Gerry QC | 23 Feb 2021

Recently ANZSIL member Douglas Guilfoyle discussed the concern that the Brereton report into war crimes by Australians in Afghanistan apparently finds no evidence that “there was knowledge of, or reckless indifference to, the commission of war crimes, on the part of Troop, Squadron and Task Group Commanders, or higher commanders.” The report foreshadowed disciplinary and administrative consequences for leaders and commanders but not criminal prosecution. This article questions whether Australia and the UK are willing and able to prosecute public officials for torture which took place overseas when there is no clear route to establishing complicity or superior liability. As Melanie O’Brien...

Accountability for the perpetration of war crimes in Afghanistan

by Azadah Raz Mohammad, Anna McNeil and Felicity Gerry QC | 12 Feb 2021

The history of modern Afghanistan is one of internecine and systemic violence. The current prospects for peace and security in Afghanistan after more than four decades of war are uncertain. The question now is whether Afghanistan can move forward without addressing the legacies of its violent past. If it does decide to address them, what are the available or appropriate remedies to achieve accountability for these atrocities? After nearly two decades of conflict, the United States (U.S.) and the Taliban movement (The Taliban) signed a peace agreement on 29th of February 2020, aimed at ending the U.S.'s longest running war. The agreement set the stage for intra-Afghan peace talks and a...

A Community-based approach to address refugee resettlement in Australia

by Shamreeza Riaz | 12 Feb 2021

In the backdrop of the COVID-19 pandemic, Australia’s current refugee Community Sponsorship Program (CSP) in Queensland needs socially distinct community-led support. The concept of a community sponsorship-based approach to address the refugee crisis is not new and was advocated in 1983 by the Gervase JL. Coles, a United Nations High Commissioner for Refugees (UNHCR) legal researcher. Coles argued that ‘Man is a social being who needs a community not only for the security that it gives but also for the provision of the conditions necessary for his general well-being and for the realization of his potential’. According to Coles, ‘international protection should be seen as a necessary...

Managing the Impact of COVID-19 in Western and Central Pacific Fisheries: Balancing Protection of Peoples with Resource Conservation through International Law

by Penelope Ridings | 12 Feb 2021

COVID-19 and its impact on global supply chains has been a focus of recent discussions on the pandemic. International organisations such as the Food and Agriculture Organisation have sought to provide guidance on measures which can be taken to protect supply chains and the incomes of fishing communities, while maintaining appropriate fisheries control measures. The practical impact of COVID-19 on the Pacific tuna fishery has been highlighted, particularly in light of the economic reliance of small island developing States on tuna fisheries. There are significant concerns over the impact of the virus on Pacific island countries which to date have largely been COVID-19 free. These issues...

Shipbreaking Industry – Responsibility of the Maritime Industry

by Mohammad Zulfikar Ali | 15 Nov 2020

Overview and Problem Definition Shipbreaking is the term used to define the process of breaking up old ships. It involves the activity of removing reusable materials, such as steel scraps, furniture, electronic materials etc. found in a used ship. Under Article 2.10 of the Hong Kong International Convention for the Safe and Environmentally Sound Recycling (Hong Kong Convention), the term ‘ship recycling’ is used instead of shipbreaking, because most of the materials found in an old ship can be reused and reprocessed. International shipping companies own and use ships for their trade and finally sell them predominantly to Bangladesh, India, and Pakistan for breaking up. Karim, Alcaidea,...

Brenton Tarrant and Trans-Tasman Prisoner Transfers

by Donald R Rothwell | 15 Nov 2020

Should Brenton Tarrant be returned to Australia? Certainly that was the view of the then New Zealand Foreign Minister Winston Peters in August, who argued Tarrant should be returned to the country that raised him. Professor Al Gillespie of Waikato University has also promoted this view. The New Zealand Nationals leader, Judith Collins had another view, telling the Sydney Morning Herald in September that she was fearful that if Tarrant was returned to Australia “a flood of criminals in Australian jails could be sent the other way.” Both Jacinda Ardern and Scott Morrison have been more circumspect. New Zealand has yet to make any formal request to Canberra regarding Tarrant’s return to...

The Brereton Report: War Crimes Allegations and Command Responsibility

by Melanie O’Brien | 15 Nov 2020

On 19 November 2020, the Australian Defence Force released a report prepared after four years of investigation by Justice Paul Brereton. The Inspector-General of the Australian Defence Force Afghanistan Inquiry Report provides redacted details of allegations of war crimes committed by Australian Special Forces soldiers in Afghanistan between 2005 and 2016. There are many potential discussion topics within the report, such as prosecution procedural challenges, but only a few can be covered here. This perspective will focus on the relevant substantive law, and the issue of command responsibility that the report raises. I preface this analysis by saying that significant portions of the detail...

Perceived Threats to the Making and Enforcement of International Law

by Bill Campbell | 12 Oct 2020

Two key elements underpinning international law and the important role it plays in the international system appear to be under some stress. Those two underpinnings are the development and subsequent acceptance of rules of international law to meet emerging international challenges and the application and enforcement of existing rules of international law. Threats to the development and acceptance of rules of international law First, with some notable exceptions, it is becoming increasingly difficult to develop new and effective treaty rules on matters requiring global attention, where the subject matter is challenging and/or the threat faced is both imminent and real. Without attempting to...

Prisoners of war: Updating our thinking on the law of armed conflict

by Wing Commander Tim Wood, Royal New Zealand AirForce | 12 Oct 2020

In an era in which a number of developed nations, including the United States, the United Kingdom, Australia and New Zealand have been accused of ill-treating or unlawfully killing captured persons or persons under their control, the need for international bright-lines has never been more important.

Genocide, the duty to protect and complicity: Is Australia sailing close to the wind in Myanmar?

by Felicity Gerry QC, Eva Buzo and Anna McNeil | 12 Sep 2020

As Canada and the Netherlands announce their intention to intervene in proceedings against the Republic of the Union of Myanmar (hereinafter “Myanmar”) concerning alleged violations of the Genocide Convention before the International Court of Justice in order "to prevent the crime of genocide and hold those responsible to account", this article considers whether Australia should do the same, particularly as Australia has not adopted all the recommendations of the Independent International Fact Finding Mission on Myanmar (IIFFM) report of 12 September 2018 and has maintained both diplomatic and military relationships with Myanmar. Background On 11 November 2019, the Republic of The Gambia...

Is a recent Argentine map of the Antarctic Peninsula a potential source of tension within the Antarctic Treaty System?

by Bruno Arpi | 12 Sep 2020

Despite common perceptions to the contrary, national concerns over territorial claims in Antarctica are not completely “frozen”. These national concerns have recently been brought to light by an amendment to Argentinian legislation on “Maritime Spaces” and publication of a map (see figure 1) relating to its claim to a continental shelf beyond 200 nautical miles (M). These developments have sparked political tension between Argentina and Chile regarding their overlapping claims to territory in the Antarctic Peninsula. Although these events might at first glance appear peripheral to Australia and New Zealand’s interests in Antarctica, this paper argues that they are pertinent and could have...

Sexual Harassment: Human Rights Obligations

by Melanie O’Brien | 12 Sep 2020

Sexual harassment in the legal profession has been much discussed in Australia this year, after the announcement from the High Court that an investigation had found former High Court Justice Dyson Heydon had sexually harassed six women who worked at the High Court. Other allegations followed. There have been studies in Australia on the prevalence of sexual harassment in the workplace, and in the legal profession more specifically. The International Bar Association also looked at the pervasiveness of sexual harassment globally, finding that 1 in 3 female respondents had experienced sexual harassment in the workplace. It is also commonplace in academia, pushing many women out of the...

Allegiance is a Bond of Protection Not a Means through which to Deliver a Punitive Moral Judgement

by Sue Milne, Cate Read, Eamonn Kelly and Felicity Gerry QC | 12 Aug 2020

Stranded in the al-Hawl refugee camp in Northern Syria for the last two years, Australian women and children have desperately been seeking repatriation to Australia. In response, the Australian Government has steadfastly resisted repatriation efforts and requests. Underpinning this stance is an inchoate assertion — a perception — that these women and children have transferred their allegiance to ISIS. Rebecca Barber argued powerfully in the last ANZSIL Perspective that humanitarian aid must continue. We suggest that arguments of this nature provide a moral foundation upon which to advocate for the repatriation of Australian woman and children, with repatriation efforts being intrinsic to...

Further Thoughts on Australia/Hong Kong Relations on Extradition and Other Matters in Transnational Criminal Law

by Liam MacAndrews | 12 Aug 2020

All views expressed in the above article are the author's own and do not necessarily reflect those of his firm. In the July edition of ANZSIL Perspective, Holly Cullen authored an informative article examining Australia’s suspension of its Extradition Agreement with Hong Kong and, in particular, the surrounding framework of international law. Since then, however, Hong Kong’s relationships with Australia and other western nations on this and related topics have seemingly progressed further down the same trajectory. Given the evolving nature of Australia’s relations with Hong Kong in this regard, this article will seek to add some further thoughts to Adjunct Professor Cullen’s analysis, as...

Australia Clarifies its South China Sea Legal Position in Responding to China

by Donald R Rothwell | 12 Aug 2020

Australia’s 23 July statement to the UN Secretary-General in formal response to a series of diplomatic exchanges between Malaysia, China and other states is the clearest to date on legal issues associated with China’s South China Sea maritime claims. Diplomatically the statement is unremarkable, legally though, it makes Australia’s position on some key issues very clear. It came at a time when Trump Administration officials were also speaking about the South China Sea. Secretary of State, Mike Pompeo, in a 13 July press statement asserted that “Beijing’s claims to offshore resources across most of the South China Sea are completely unlawful...”. The Australian statement was made through...

All is Fair in Law and War: Legal Cynicism in the Israeli-Palestinian Conflict

by Shiri Krebs | 12 Aug 2020

Can legal fact-finding processes into wartime actions resolve factual and legal disputes about these events? Despite the growing popularity of international and domestic legal fact-finding processes, recent examples demonstrate that the terminology and epistemology of international humanitarian law (IHL) can intensify the very factual and legal controversies they were designed to resolve. Some explanations for this unintended outcome of IHL-based fact-finding efforts relate to the legitimacy, credibility, and trustworthiness of the fact-finding bodies (Bassiouni, 2001). Other explanations are rooted in motivated cognition processes, leading individuals to reject facts inconsistent with...

Suspending the Australia-Hong Kong Extradition Treaty After the National Security Law

by Holly Cullen | 12 Jul 2020

States have begun to respond to China’s adoption of a new national security law for Hong Kong, bypassing the Hong Kong legislature. Key features of the new law include life sentences for crimes of secession and subversion of state power, and more active state oversight of political activity linked with foreign organisations. Immediately after the law’s adoption, the Hong Kong government announced the formation of special police and prosecution units to enforce the law. By early July, hundreds of protesters had been arrested, some under the law with its much harsher penalties. Some worry that those charged under the law could be extradited to mainland China, a policy which had been strongly...

Legal Options for Cross-Border Humanitarian Assistance in Syria, with or without the Security Council

by Rebecca Barber | 12 Jul 2020

Over a period of five days earlier this month, the UN Security Council conducted nine rounds of voting on five draft resolutions, before finally reaching a compromise on the issue of whether to authorise cross-border humanitarian assistance to millions of desperately vulnerable people in northwest Syria. The compromise – Security Council Resolution 2533 – was to allow aid to pass through just one of the two Turkish border crossings that previously had been authorised by the Council. It effectively cuts off humanitarian assistance to 1.3 million people in the Aleppo governorate – an outcome that humanitarian agencies had spent weeks of intensive lobbying trying to avoid. The Council was,...

As lockdown lifts, it is time to repatriate women and children held in Syrian camps

by Eamonn Kelly, Felicity Gerry QC, Sue Milne and Cate Read | 12 Jun 2020

Australian women and children currently being held in the Al-Hawl camp in Syria present a jurisdictional headache for their home States, some of whom have made domestic criminal allegations against these citizens in respect of their conduct abroad. In Australia, senior ministers allege, amongst other things, that citizens detained in Syrian refugee camps have committed foreign fighter offences and pose a risk to the Australian community if repatriated. This short article considers a State’s duties to protect its citizens, particularly women and children, as an incident of nationality and a citizens’ right to return to Australia, especially where alleged crimes empower Australian Courts...

Interrogating the Definition of Women Human Rights Defenders

by Susan Harris Rimmer, Emma Palmer and Jacob Montford | 12 May 2020

International lawyers love a good crisis, argues Hilary Charlesworth, though this tendency can often impoverish the discipline of international law. So whilst all eyes are drawn to the pandemic, we alert you to the closing of civil society space in many parts of the globe, including for women human rights defenders. On 16 March 2020, a group of UN human rights experts said that ‘emergency declarations based on the COVID-19 outbreak should not be used as a basis to target particular groups, minorities, or individuals. It should not function as a cover for repressive action under the guise of protecting health... and should not be used simply to quash dissent.’ We should stay focused on the...

Joint Criminal Enterprise in the Kosovo Specialist Chambers

by Jonathan Rees QC and Felicity Gerry QC | 12 May 2020

Now that indictments have been filed with the Kosovo Specialist Chambers (KSC) for review by the Pre-Trial Judge, one of the issues on the KSC’s horizon will be whether it adopts, as a basis for individual criminal responsibility, the extended form of joint criminal enterprise known as ‘JCE III’. By way of background, although the KSC is a ‘hybrid’ court, Article 3.2.d of the Law on Specialist Chambers and Specialist Prosecutor’s Office (the KSC Statute) gives customary international law superiority over domestic law. Specifically, the basis for individual criminal responsibility in relation to Crimes Against Humanity under International Law (Article 13) and War Crimes under International...

COVID-19 and the UN Security Council: Should We Expect an Intervention?

by Ash Murphy | 12 May 2020

When the 2014 West African Ebola crisis reached its pinnacle the UN Security Council (UNSC) took the unprecedented step of declaring the outbreak an Article 39 threat to international peace and security – thus activating its most powerful tool under the UN Charter. Just six years on, COVID-19 has gripped the planet with unrivalled intensity, generating over 3 million cases and causing 205,000 deaths (at the time of writing). However, the UNSC remains in a guise of hibernation and has not yet adopted a meaningful position on what Secretary-General Guterres has called ‘the most challenging crisis we have faced since the Second World War’. This inaction may appear inconsistent given the 2014...

Antarctic Governance in a Time of Coronavirus

by Alan D Hemmings | 12 May 2020

Antarctic governance under the Antarctic Treaty System2 is achieved through two annual decision-making meetings. The Antarctic Treaty Consultative Meeting for the Antarctic Treaty and Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol); the Commission for the Conservation of Antarctic Marine Living Resources for the Convention for the Conservation of Antarctic Marine Living Resources. Consultative Meetings are rotated through Consultative states; Commission Meetings are held in Hobart. Decision-making in both is by consensus of those present. The difficulty that presents itself in 2020 is that the global pandemic of Covid-19 has closed down (or seems likely to)...

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