Editorial: Edition 35

Written by Felicity Gerry KC



Tēnā koutou, yumalundi, and welcome to this edition of ANZSIL Perspectives. This edition is a retrospective from Sir David Barangwanath on the work of the Special Tribunal for Lebanon – fitting for the eighteenth anniversary of the Tribunal’s establishment, and almost exactly one year since it entered into its residual phase. The Tribunal is the first international entity to have prosecuted terrorist crimes—a judicial function which states have attempted to establish, in one form or another, since 1937.

Sir David’s retrospective discusses the events which led to the establishment of the Special Tribunal, before summarizing the key legal issues and the major decisions issued. He provides an interesting account of the defence counsel’s challenges to the jurisdiction of the Tribunal, the question of whether a company can be held criminally liable (including for contempt) in international law, fair trial rights, and the validity of in absentia criminal cases under international law.

As always, while preparing this edition world events continued on. In no particular order, over the last month or so:

  • The UN Security Council recently held an Arria meeting on the law protecting cultural heritage in armed conflict, with UNESCO presenting. Five new members of the Council were elected on June 6: Algeria, Guyana, Republic of Korea, Sierra Leone and Slovenia join the body’s membership starting January for a two-year period.  
  • After robust and often challenging negotiations, an agreement was reached to produce a zero draft of the proposed Plastic Pollution Treaty.
  • In global health, the WHO recently concluded the seventy-sixth World Health Assembly, and work has continued on the drafting of a global pandemic treaty.
  • In trade, the AU-UK FTA and NZ-UK FTA have entered into force as of 31 May 2023.
  • The International Law Commission has completed the first of its two in-person sessions for 2023, held in Geneva from 24 April to 2 June. This session addressed the settlement of international disputes to which international organisations are parties, the prevention and repression of piracy and armed robbery at sea, and subsidiary means for the determination of rules of international law.
  • The 2023 International Labour Conference will run from June 5-16.
  • In Ukraine, the international armed conflict sparked by Russia’s invasion continues. Ukraine has purportedly commenced a long-anticipated counter-offensive; Russia has continued to make use of missile strikes against targets in Ukraine, often with significant human and humanitarian consequences; and partisan, anti-regime groups claim to have commenced operations on Russian territory. The legal effect of this third development remains unclear, particularly regarding conflict classification and/or the question of direct participation in hostilities.
  • In France, the Cour de Cassation’s plenary assembly has reaffirmed universal criminal jurisdiction over crimes against humanity in Syria, overturning a previous decision to the contrary by its criminal chamber. The Assemblée plénière held that the requirement of double criminality had been construed in an overly narrow and prescriptive form by the criminal chamber. 
  • Closer to home, the 2023 Shangri-La Dialogue took place in Singapore, bringing together ministers of defence from across the Asia-Pacific. Discussions at, and about, the dialogue act as a reminder that the rules-based international order is as at just as much risk from geopolitical tensions in our region as it is in other parts of the world.
  • In Australia, the Federal Court has released its judgment in the defamation case bought by Ben Roberts-Smith against multiple media agencies. The Court held that on the balance of probabilities, the substantial truth of several allegations regarding war crimes and violations of international humanitarian law had been established. It held that two allegations were not sufficiently established. The effects of this civil judgment, particularly regarding ongoing investigations into violations of IHL by ADF members, remain to be seen.
  • In Afghanistan, the United Nations has ceased its system-wide instruction for staff not to report to their offices, instead favouring an agency-level response. The instruction was put in place to protest the Taliban’s prohibition of women working for international organisations in Afghanistan. While the instruction appeared to prioritise compliance by the Taliban as a de facto governing body with international human rights law, it was widely criticized as several UN agencies chose to disregard it and accept the restrictions imposed upon them.
  • In a personal highlight, oral submissions in the Al Hassan case at the ICC were completed, including some on the defences of superior orders, mistake and duress. They are available on You Tube here.

As always, ANZSIL Perspective welcomes expert contributions on any of these issues, or any other topics presently testing international law, whether those contributions come from our members or beyond. We warmly invite you to submit your perspectives on public international, private international, and domestic-international interface legal matters. ANZSIL Perspectives are conversational in tone and designed to encourage debate, so we also would be glad to receive any responses you may have to pieces published. We look forward to receiving submissions from a diverse range of scholars, including new and emerging authors.

Felicity Gerry KC
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Felicity is on the lists of counsel for the ICC and KSC having come to international practice now her children are older. She is admitted in England and Wales and Australia (Victoria and the High Court Roll) and specialises in complex criminal law cases, generally involving an international element including terrorism, homicide, biosecurity and human trafficking. She has a particular interest in complicity as leading counsel in the UK Supreme Court decision in R v Jogee [2016] UKSC 8 and having led an amicus brief on CIL and complicity in the ICTY. She is Professor of Practice at Deakin University where she teaches a unit on Contemporary International Legal Challenges. She is widely published in areas including women & law, technology & law and reforming justice systems. Her current PhD candidature is on Transnational Feminisms and the Human Trafficking Dilemma.

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