International Advocate Volume 2 Issue 2

INTERNATIONALADVOCATE April 2013 Volume 2 Issue 2

Feature Article

Security Council Mandates and the Use of Lethal Force by Peacekeepers

By Nigel White

The International Advocate is published by the ANU International Law Society with the proud support of the International Law Students’ Association Publications Director Nishadee Perera Publications Team Sherwood Du, Cheng Ho, Amy Sinclair, Rebecca WIlliams, Nina Yap, Manny Zhang The opinions expressed in the articles are those of the contributors and do not necessarily reflect those of the ANU International Law Society, its partners or the Australian National University.

ANU International Law Society Student Facilities Building 17a Australian National University Canberra ACT 0200 Australia President Andrew Swanson Vice President Claire Wilson Finance Director Chloe Sevil Careers Director Rebecca Williams Competitions Director Jedda Elliott Education Director Parissa Tosif Events Director Kerin Callard Publications Director Nishadee Perera Committee members Kayjal Dasan, Scott Dillon, Rui Lam, Kamilya Nelson, David Purvis, Nikitha Singh, Mallory Wankel Submissions

from

academics,

legal

practitioners, and students are always welcome. Please submit essays, photos and ideas to anu.international.advocate@gmail.com

4 11 17 24

Security Council Mandates and the Use of Lethal Force Nigel White

Gorillas in Our Midst: Expanding the Human Rights Rhetoric

Jordan Sosonowski

Libya vs. The International Criminal Court? Jurisdiction over Gaddafi-era crimes Elizabeth Brownhill and Andrew Swanson

YOJO: You Only Jessup Once

Picorelli Pal

26

Claire Wilson

27

Jack Lin

Course Review for LAWS2264: Advanced International Law

Course Review for LAWS2226: International Trade Law

President’s Welcome Welcome, it’s great to have you joining us for the second issue of the ANU International Advocate!

It is also pleasing to see the strong support this entirely student-run publication has already received. In Australian universities, the notion that student organisations can bring readers the stories that matter about the wider world is still sometimes novel. (But with your help we are quietly optimistic that our new approach can continue successfully for a long time to come.)

The ANU International Law Society has some great public events coming up. Friday 26th April will be our annual social night, a “Fiesta” themed evening at Vivaldi’s. With tickets including dinner and unlimited drinks, you almost can’t afford not to go! We’re also keeping a keen eye on the legalities - the 2013 ILS Speakers’ Series has already hosted Nigel White, Alastair Nicholson, Jennifer Degeling and Elizabeth Keogh. Later this year we will be hosting the new Chief Justice of Australia’s Federal Court, James Allsop. And the list goes on, looking forward to seeing you there!

Happy reading, Andrew Swanson

SECURITY COUNCIL MANDATES AND THE USE OF LETHAL FORCE BY PEACEKEEPERS

By Nigel White

sometimes causing confusion as to

The Problem Since the turn of the 21st century, peacekeepers

have

been

under

pressure to use ‘necessary measures’ to protect civilians and the peace process.

Peacekeepers have been criticised for being inactive in the face of violence when the mandates given to them by the Security Council clearly enable them, arguably require them, to use ‘necessary measures’ against those who would undermine the peace or threaten civilians.

Increasingly

coercive

Security

Council mandates would suggest that peacekeepers can cross the line to become

war-fighters

or

‘combatants’

in the language of the laws of war (international

humanitarian

law),

the legal status of peacekeepers who are traditionally not seen as legitimate targets. Indeed, attacks on them remain prohibited under the 1994 UN Convention on

Safety

of

United

Nations

and

Associated Personnel. In 1999, the UN Secretary General attempted to clarify the non-combatant status of peacekeepers even in situations of armed conflict, by declaring that they are to be viewed as civilians under international humanitarian law unless and until they actively engage as combatants in an armed conflict.1 Although

peacekeepers

have

been

given functions that are less than those of combat but more than those of law 1 Secretary-General’s Bulletin: Observance

by United Nations Forces on International Humanitarian Law, UN Doc ST/SGB/1999/13 (12 August 1999).

(Photo credit: Taliesin) 4 | INTERNATIONAL ADVOCATE

enforcement, it is argued that this does not somehow place them in a legal no man’s land. Instead, it is argued that, despite increasingly coercive Security Council mandates, peacekeepers remain subject to international human rights law standards when using weapons.

However, in exceptional circumstances, when peacekeepers are actively engaged as combatants within an armed conflict situation, they are subject to international humanitarian law standards, where the right to life is qualified by those laws of war that allow ‘enemy’ combatants to be engaged with lethal force.2 Peacekeeping

had

to

Widening of Defensive Use of Force Over

the

lifetime

of

peacekeeping

operations there has been confusion as to the nature and level of force that peacekeepers are permitted to use. At its core the limited use of force available to peacekeepers means self-defence, which is normally interpreted narrowly to cover a peacekeeper using force in defence of his own life and those of his comrades.

While the first force deployed to Suez in 1956 (UNEF) stuck to a narrow interpretation of self-defence by using light arms to defend itself, by 1960 an

be

reformed

following the disasters of Rwanda in 1994, and Srebrenica in 1995, when forces stood by in the face of genocide. Since the Brahimi Report of 2000, peacekeepers have been expected to actively support the peace process and peace building within a state, as well as protect civilians within their areas of deployment.3 This is significantly different from the Cold War model developed by the UN whereby the force oversaw the peace in the form of a cessation of hostilities.

2 See excellent analysis by: Rob McLaughlin, ‘The Legal Regime Applicable to the Use of Lethal Force When Operating under a United Nations Security Council Chapter VII Mandate Authorising “All Necessary Means”’ (2007) 12 Journal of Conflict and Security Law 389.

3 Identical letters dated 21 August 2000 from the Secretary-General to the President of the General Assembly and the President of the Security Council, UNGAOR, 55th sess, Agenda Item 87; UNSCOR, 55th sess, UN Docs A/55/305 and S/2000/809 (21 August 2000). (“Brahimi Report”)

alternative

version

of

peacekeeping

developed in the Congo (ONUC). ONUC initially confined its use force to selfdefence when overseeing the withdrawal of Belgian troops, but that proved inadequate when its task became the elimination of the mercenaries supporting the Katangese secession. In reality, in 1961, ONUC had ceased to act in a defensive way, and had begun to take the initiative and enforce the peace by engaging with the forces of non-state actors.4 This has occurred in more recent operations in the Congo: in July 2012, the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) used offensive force including the use of attack helicopters against M23 rebels.

4 But see: Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 163-4.

INTERNATIONAL ADVOCATE | 5

Despite a post-Cold War trend towards allowing more offensive action to be taken by peacekeepers, there remains reluctance,

especially

from

troop

contributing nations (TCNs), to move away from self-defence as this makes the force less acceptable to the host state and the parties within it. TCNs are also reluctant to engage as combatants, as this may mean that their troops will lose the protection from attack afforded to peacekeepers under the 1994 Convention. Thus, selfdefence remains the norm for modern peacekeeping,

even

those

peace

operations having Chapter VII elements to their mandates, which requires forces to

Applicable Law Although

increasingly

coercive

Security Council mandates mean that peacekeepers

can

potentially

cross

the line to become ‘combatants’, in the language of the laws of war, this is remains the exception and not the norm.

Normally, peacekeepers are deployed to violent but post-conflict situations where the laws of war will remain inapplicable to the vast majority of peacekeeping operations.

This may not be so where

violence increases to the level of a protracted armed conflict, in which both the

government

and

peacekeepers

protect the peace process and civilians.

are engaged against organized armed

Despite this reticence in practice, at the

Congo in 1960s and again at the turn of

doctrinal level, the UN has expanded

the twenty-first century. Being based in

the concept of self-defence to include

the host state with the consent of that

defence of the mission and of civilians.

government signifies that a peacekeeping

This development is reflected in the UN

force will not become engaged against the

Department of Peacekeeping Operations’

forces of the host state in an international

latest

peacekeeping

armed conflict. Indeed, if they were to,

doctrine in the 2008 Principles and

the peacekeeping force would cease to

Guidelines document (sometimes known

be a peacekeeping operation and would

as the Capstone Document). While this

become a peace enforcement action

document distinguishes peacekeeping

requiring authorization under Article 42 of

from enforcement action, it also states

the UN Charter.

that

statement

it

is

‘widely

of

understood

that

peacekeeping forces may use force at the tactical level, with the authorization of the Security Council, if acting in self-defence and defence of the mandate’.

groups within a state,5 as occurred in the

This would all suggest that international humanitarian

law

does

not

play

a

significant role in a post-war situation to which peacekeepers are deployed.

Rather it is the jus post bellum – including aspects of general international law, 5 Prosecutor v Tadic (1996) 105 ILR 488.

6 | INTERNATIONAL ADVOCATE

human rights law, refugee law, and

The second source of human rights

international criminal law, as well as the

obligation

national criminal and military laws of the

as members of a UN force, given

TCNs and national law of the host state

the

– which together frames the work of a

international law that attach to the

peace operation.

UN as an international legal person.7

It follows that for most peacekeepers the relevant international laws will be those governing human rights. The existence of human rights obligations on peacekeepers flows from two main sources. The first source for peacekeepers is as state agents and comes from the human rights obligations of their sending States under

The

applies

obligations

International

to

peacekeepers

under

Law

customary

Commission’s

2011 Articles on the Responsibility of International Organizations clearly show that it is possible to attribute wrongful acts to the UN,8 and such responsibility is based on it having duties under customary international law including ones to uphold and protect human rights.

human rights treaties. These obligations attach to them even when acting extraterritorially in circumstances where they exercise control over areas or individuals.6 6 Human Rights Committee, General Comment No. 31, UN Doc CCPR/C/21/Rev.1/Add. 13 (26 May 2004) para 10.

7 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 174-8.

8 Taken note of in: Responsibility of international organizations, GA Res 66/100, UN GAOR, 66th sess, 6th Comm, Agenda item 81, Supp No 49, UN Doc A/RES/66/100 (9 Dec 2011).

(Photo credit: keeshu)

INTERNATIONAL ADVOCATE | 7

The Use of Lethal Force and the Right

A more detailed examination of UN policy

to Life

and guidelines on when peacekeepers

Having established that human rights law

shows that the UN largely acts within

is normally applicable to peacekeepers, it would appear that modern peacekeepers are placed between the rock of human rights constraints and the hard place of a Security Council mandate that appears to require them to use lethal force in a range of circumstances.

The fact that UN peacekeepers and armed police carry weapons, the use of which may cause deaths, seems at first glance to be incompatible with the right to life. However, major human rights treaties make it clear that the right to life, though fundamental, is not absolute.

The basic principle is that life cannot be taken arbitrarily. Drawing on human rights jurisprudence under Article 2 of the European Convention on Human Rights and Article 6 of the International Covenant on Civil and Political Rights: during peacetime and situations short of armed conflict, lethal force can be used by peacekeepers when absolutely necessary for self-defence (including defence of third parties), to effect an arrest or prevent escape of a detainee, or in action taken to quell a riot or insurrection. This provides a relatively clear legal framework within which peacekeepers should operate.

can use force, including lethal force, this legal framework; indeed, the UN frames its policies and directives largely within the parameters of international human rights law, rather than international humanitarian law. As mentioned above, the 2008 Capstone Document expands somewhat on when potentially lethal force may be used. The Document explains that ‘all necessary means’, in the context of a peacekeeping mandate, includes lethal force where necessary against ‘militias, criminal gangs, and other spoilers who may actively seek to undermine the peace process or pose a threat to the civilian population’, in order to ‘deter forceful attempts to disrupt the political process, protect civilians under imminent threat of physical attack, and/or assist the national authorities in maintaining law and order’.

It is possible to interpret these guidelines as being compatible with human rights standards if the provisions that allow the use of potentially lethal force when absolutely necessary (to effect an arrest or in tackling riots and insurrections) is applied to include not only these, but also analogous situations faced by peacekeepers when force is absolutely necessary to tackle militias, criminal gangs and other armed spoilers who undermine the peace or threaten civilians.

If this purposive interpretation is adopted,

8 | INTERNATIONAL ADVOCATE

it follows that there is sufficient leeway in

human rights law, and protecting the right

human rights law to enable peacekeepers

to life is one of those. Second, Security

to perform their functions using potentially

Council

lethal force where absolutely necessary.

human rights treaty obligations unless the

There remains the problem of ensuring that peacekeepers do not exceed these standards under the guise of a Chapter VII mandate issued by the Security Council

that

authorizes

‘necessary

measures’; for necessary measures in a situation short of armed conflict are those absolutely necessary to defend civilians or to defend peacekeepers when tackling those who undermine the peace. There

of Engagement, of peacekeepers being permitted to use deadly force to protect UN property, which is generally difficult to reconcile with human rights law, though 9

it is permissible in some circumstances

cannot

override

Security Council expressly states that this is the case. Drawing upon the European Court of Human Rights judgment in the Al-Jedda of 2011 it is for TCNs to interpret Security Council mandates to ensure that peacekeepers use ‘necessary measures’ in line with their human rights obligations unless and until the Security Council clearly exempts States from these obligations.10 Conclusion

further remains the problem found in many UN documents, including UN Rules

obligations

While the Security Council may feel it has discharged its primary responsibility for peace and security by introducing Chapter VII and ‘necessary measures’ into the mandates of modern peace

under international humanitarian law.

operations, it leaves the situation on

Article 103 of the UN Charter, which

required to use lethal force to protect

states that obligations derived from

civilians and to protect the peace process

the UN Charter prevail over those in

but what this article has argued is that, in

any other international treaty, does not

so doing, they are bound by the principles

affect the analysis given above for a

of human rights law and only exceptionally

number of reasons, two of which will

by those of international humanitarian law.

be mentioned. First, Article 103 does not affect customary obligations under 9 ‘[P]rotection of property cannot be invoked as a justification for the use of potentially lethal force unless it is somehow linked to the defence of life’.

Note by the Secretary General transmitting the Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN GAOR, 66th sess, 3rd Comm, Agenda Item 69(b), UN Doc A/66/330 (30 August 2011) annex para 43.

the ground unclear. Peacekeepers are

While it is possible to reconcile the ‘protection mandates’ given to modern peace operations with the restrictions on

the

arbitrary

deprivation

of

life

contained in human rights law, care must �� Al-Jedda v The United Kingdom (European Court of Human Rights, Grand Chamber, Application No. 27021/08, 7 July 2011) [105].

INTERNATIONAL ADVOCATE | 9

(Photo credit: Linzi)

be taken. Security Council mandates increase pressure on peacekeepers and TCNs to not stray into a legal no man’s land between human rights law and international humanitarian law.

In this

zone individuals would not have clear rights under human rights law nor would they be protected under the laws of war, meaning that the use of lethal force in such a zone is likely to be both abused and unaccountable.

Of course there is great concern that peacekeepers use force when necessary to protect civilians under existential threat; however, we must be careful to ensure that while more is done to achieve this laudable aim we do not encourage the excessive use of force by peacekeepers that may itself lead to the arbitrary deprivation of life.

10 | INTERNATIONAL ADVOCATE

Nigel White is Professor of Public International law at University of Nottingham, UK. This is a summary of a lecture given to the Australian Centre for Military & Security Law, Australian National University on 21 February 2013. A

developed paper will appear as a chapter in a forthcoming collection of essays - C. Harvey, J. Summers and N.D. White (eds), The Law of War: Fit for Purpose in 2013

GORILLAS IN OUR MIDST: EXPANDING THE HUMAN RIGHTS RHETORIC

By Jordan Sosonowski

The river remains, though the water

‘Foundation’ suggests that the Declaration

of which it is composed changes.

was not meant to be exhaustive, but to

1

The aftermath of World War II saw the United Nations recognition of the ‘fundamental liberties and constitutional rights of people and individuals’2 that would be protected by international law in times of war and peace. This articulation of essential entitlements was the catalyst for the expansion of international human rights law, resulting in the UN Charter, the Universal Declaration of Human Rights (‘the Declaration’) and other important Treaties.3

The

Declaration

Preamble

provides recognition of ‘the inherent dignity and of the equal and inalienable rights of all members of the human family.’4 These rights are ‘the foundation of freedom, justice and peace in the world’.

5

1 Heracleitus cited by Thomas H. Huxley, ‘Evolution and Ethics’ (Speech delivered at the Romanes Lecture Series, the Sheldonian Theatre, 18 May 1893).

2 United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War, (His majesty’s stationary office, 1948) 192-193.

3 Steven R. Ratner, Jason S. Abrams & James L. Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford, 3rd ed, 2001) 7.

4 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) Preamble (‘UDHR’).

5 Ibid.

provide a starting point upon which other rights could be built. This argument is supported by the subsequent creation of treaties that build upon the foundation of rights by protecting civil, political, economic, social, cultural rights, and rights specifically for the child, as well as those that seek to prevent genocide, racial discrimination and torture.6 Therefore, it could be argued that the Declaration marked the beginning of a ‘rights’ rhetoric’ that is continually expanding, and the language of rights could also be utilised to provide non-human beings with ‘freedom, justice and peace in the world’.7 6 See, for example, Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 2106 (XX) (entered into force 4 January 1969); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 2200A (XXI) (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 2200A (XXI) (entered into force 3 January 1976); Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 17 July 1980, 34/180 (entered into force 3 September 1981); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 39/46 (entered into force 26 June 1987); Convention on the Rights of the Child, opened for signature 20 November 1989, 44/25 (entered into force 2 September 1990).

7 UDHR, Preamble.

INTERNATIONAL ADVOCATE | 11

(Photo credit: keithcr)

This article will consider the argument that

non-human animals, without affecting the

human rights in international law should

validity of human rights. In this way, the

be extended to include members outside

‘river’ that is the human rights’ debate,

the ‘human family.’8 At first, this statement

which is currently flowing at a swift pace,

may seem perplexing and practically

would not be slowed or diluted by the

inconceivable. International human rights

addition of rights for non-humans. Instead,

law concerns itself with humans - why

new streams of thought and discussion

should it broaden its scope to include

will add to the human rights’ source to

other beings such as animals? Would

further the Declaration’s original goals.

such an extension delegitimise humanity’s struggle for universal recognition of

Why were human rights first recognised in international law?

rights?

By considering the legal justification for recognition of international human rights, it will be demonstrated that it could be possible to extend the rights’ rhetoric to 8 In this article, the terms ‘other beings’, ‘nonhumans’, ‘sentient beings’ and ‘animals’ are all used interchangeably. Please note that when these terms are referred to, it is only those beings who are rational, self-conscious and have the capacity to feel pleasure and pain that it is argued rights should be extended towards. These would therefore only include chimpanzees, gorillas and orangutans. See, Peter Singer Practical Ethics (Cambridge, 2nd ed, 1993) 131-132.

12 | INTERNATIONAL ADVOCATE

While state-sanctioned persecution has occurred throughout history, the Holocaust was thought to represent a new level of criminality, which deserved international attention. From the Nuremberg trials emerged

the

now

infamous

‘crimes

against humanity’, which were created ex post facto, for the purpose of incriminating individuals for crimes that were of a particular magnitude. The International Military Tribunal at Nuremberg (‘the IMT’)

was the first articulation of international

in the moral sense must be regarded as

criminal justice, and thus ‘signified the

innocent in law.13

beginning of the modern human rights movement’.9

Thus it seems that the IMT’s reasoning was that the Nazi crimes were of such a

The prosecutions at Nuremberg marked

magnitude that it would be ludicrous to

the first trial of their kind; however, much

assert that they were not illegal, as they

of the actual law that was employed

were such an affront to common notions of

did not exist before the war took place.

morality. Unfortunately it took the atrocities

Instead, the principle of ‘nullum crimen

of the Holocaust for the international

nulla poena sine lege: a defendant may

community to legally articulate the ethical

be convicted only on the basis of legal

concepts of obligation and responsibility.

rules that were clearly established at

However, it must be noted that the

the time of offense’,

was seen as a

Declaration’s inherent notions stem from

fundamental attribute of the criminal

thousands of years of religious and

justice system. However, in the context

philosophical thought.

10

of the Nuremberg trials, as Meron points out, the IMT found that ‘the law of war was to be found not only in treaties, but in the customs and practices of states and the general principles of justice’.11 Chief Prosecutor at Nuremberg, Justice Robert Jackson, admitted that there was no judicial precedent for the Charter,12 yet he invoked justice and morality in order to rationalise what was, in effect, recently invented law: The refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime 9 Mark Findlay and Clare McLean, ‘Emerging International Criminal Justice’ (2007) 18 Current Issues in Criminal Justice 457, 458.

10 Theodor Meron, ‘Revival of Customary Humanitarian Law’ (2005) 99 American Journal of International Law 817, 817.

11 Ibid, 830.

12 Above n 10, 146.

Can the same legal reasoning be applied to non-humans?

What sparked the human rights movement was the reasoning that it seems ‘right’ to infer that people ‘have a right’ not to suffer.14 But what actually occurred during this event so as to affront our notion of morality in such a way as to lead to the articulation of legal rights?

As part of their philosophy regarding the supremacy of the Aryan race, the Nazis undertook

various

experiments

upon

Jews, blacks, gypsies and homosexuals.

Experimentation on concentration camp 13 Ibid 154.

14 ‘There is an obvious distinction between ‘what is right’ and ‘having a right’, but one cannot imagine having a right that is not based on ‘what is right’. Daniel Warner, ‘An Ethics of Human Rights: Two Interrelated Misunderstandings’ (1996) 24 Denver Journal of International Law & Policy 395, 414.

INTERNATIONAL ADVOCATE | 13

inmates by the infamous Nazi scientist,

fixed to a platform, which rolls and tilts in

Joseph Mengele is well documented.

movements similar to that of flying a plane.

Experiments undertaken in Auschwitz

The monkey must learn to use a control

include operations on twins such as

stick to ensure the platform reaches

castration, amputation of limbs, injections

a horizontal position, or be subject to

of typhoid and injections of dye in the

electric shocks. Once the monkeys are

eye, in an effot to turn them blue. Women

competent at ‘flying’, they are exposed to

were

sterilisation

chemical agents and radiation. They must

techniques such as the injection of

subject

to

various

continue to keep the platform straight,

caustic substances to the uterus, which

whilst nauseous and vomiting, otherwise

caused internal sepsis.15 Other scientists

they receive more shocks.17 Another

carried out hypothermia tests, subjecting

example is the experiment conducted by

people to freezing ice baths, or left in the

Professor Harry F. Harlow. In developing

elements of a Polish Winter, strapped

various strategies for utilising higher

to a stretcher. In one experiment to

primates as research tools, the experiment

understand how soldiers stranded at

induces psychopathology in monkeys by

sea could survive, one scientist forced

keeping then in total isolation from birth.

subjects to drink only sea water for up to

The monkeys are housed in stainless

12 days. Witness reports detail victims of

steel chambers and are then subject to

this experiment licking the mopped floor,

monitoring whilst a mechanical surrogate

before finally succumbing to the effects

‘mother’ rejects them. Another of Harlow’s

of dehydration.

These various acts of

research tools was the development

cruelty were documented meticulously

of a ‘well of despair’ – a stainless steel

and used as the evidentiary basis for

chamber

many of the Nuremberg trials.

induces and supposedly facilitates the

16

As part of our current philosophy regarding the supremacy of the human race, scientists undertake various experiments upon non-human animals. For example, to understand how nerve gas affects pilots’ flight capability, the Brooks Air

with

sloping

sides,

which

study of the effects of depression. Young monkeys were placed in the rounded bottom of the ‘well’ for up to forty-five days and often would never fully regain normal behaviour patterns, even months after their release.18

Force Base in Texas undertakes testing on primates. The experiment involves restraining a monkey in a chair that is 15 David ����������������������������������� Bogod,����������������������� ‘The Nazi Hypothermia Experiments: Forbidden Data?’ (2004) 59 Anaesthesia 1155, 1155.

16 Ibid.

14 | INTERNATIONAL ADVOCATE

17 U.S. Air Force, School of AerospaceMedicine, Report No. USAFSAM-TR-87-19, October 1987 cited in Peter Singer, Animal Liberation (Harper Collins, 2009) 26-30.

18 Journal of Comparative and Physiological Psychology 80 (1): 11 (1972) cited in Peter Singer, Animal Liberation (Harper Collins, 2009) 26-30.

(Photo credit: pfflyer)

Unlike the Nazi experiments, these tests

of a declaration that ‘an animal could

upon animals are lesser known. However

be granted the legal status of a person

should they be looked upon as any less

with rights.’19 This resolution sought to

affronting to our sense of morality? If the

protect chimpanzees, bonobos, gorillas,

tests on primates are developed in order

and orangutans and give them the right

to understand the effects on humans, the

to life, liberty and freedom from torture.

physiological connection between our

These are the same fundamental rights

two species is scientifically conceded.

that served as the basis for the initial

Thus, if an inherent notion of ‘what is right’

recognition of human rights.

does not compel one to consider rights for non-humans, then, at the very least, their capacity to suffer should.

Would an extension of the rights’ subject delegitimise the human rights

If we take the opening speech of Justice Jackson as an indicator of what led to global recognition of human rights, it was that:

movement?

[T]he wrongs which we seek to condemn

Some basic legal rights for animals have

so malignant, and so devastating, that

already been recognised on a domestic

civilization cannot tolerate their being

level, without causing any harm to the

ignored, because it cannot survive their

international human rights movement.

being repeated.20

For example, in 2008, a committee of the Spanish parliament voted in support

and punish have been so calculated,

19 Above n 18, xiii.

20 Opening speech of Justice Robert Jackson, Chief Prosecutor at Nuremberg, Trial of the Major War Criminals Before the International Military INTERNATIONAL ADVOCATE | 15

While this speech is fashioned to invoke

Further, while animals do not have the

a dramatic response, it also allows a

capacity for reason, they share the

glimpse into the interesting, but less

same interests as humans to experience

documented reason why the first trial

pleasure and be free from suffering. This

in history for crimes against humanity

fact alone presents a strong case for the

was staged: because civilization cannot

extension of basic rights, such as the right

survive their being repeated. This is a

to life, and the right to be free from slavery

blatant acknowledgement that acting

and torture.21 However, as non-human

from reasons of self-preservation is a valid

beings do not have the capacity to form a

motivation for invoking rights.

government or articulate these rights, it is

If self-preservation is the justification that is employed for invoking rights for humans, then extending the rights’ subject is perfectly reasonable. It is clear from plain observation that animals act instinctually for reasons of self-preservation, thus

incumbent upon humans to express these basic entitlements for them. The very basic rights such as the right to life should be extended to non-humans because we would expect these rights to be given to us, were the roles reversed.

both humans and non-humans have a

The adoption of basic rights for non-

common objective – to carry on living. Yet,

humans would not impact significantly

must we experience an event on the same

on the rights that are already set down

scale of atrocity in order to recognise

for humans. An extension would add to

rights for our non-human counterparts?

the current rights’ rhetoric, not take away

When the catalysts of morality and justice

from the rights already entrenched for

are employed, as they were after the

humans. Therefore let us not be ‘bound

Holocaust, it is straightforward to see

in the fetters of inherited orthodoxy’22

how an extension of rights could further

and recognise that non-human animals

validate the human rights movement,

are also valid subjects of rights under

rather than delegitimise it.

international human rights law.

Tribunal, Nuremberg (vol II) 98.

21 UDHR, articles 3, 4, 5.

22 Bertrand Russell, A History of Western Philosophy (George Allen and Unwin, 1946) 21.

Jordan Sosnowski is an Associate Fellow at the Oxford Centre for Animal Ethics. She graduated from Monash University with a Master of Laws, Juris Doctor. Jordan was awarded a Bachelor of Arts from the University of Queensland, majoring in Philosophy and English Literature. This article is adapted from Jordan’s submission for the the ALPSA Essay Competition. Jordan currently works in the field of legal research. Her present research focusses on how the animal law movement can be furthered through an international law framework.

16 | INTERNATIONAL ADVOCATE

LIBYA VS. THE INTERNATIONAL CRIMINAL COURT? JURISDICTION OVER GADDAFI-ERA CRIMES

By Elizabeth Brownhill and Andrew Swanson In February 2011, the UN Security

The

Council issued Resolution 1970, referring

authorities and the ICC presents complex

the situation in Libya to the International

questions about the legal limits on the

Criminal Court (ICC). The ICC issued

Court’s exercise of universal jurisdiction.3

warrants for the arrest of Colonel Muammar

The basis of the Court’s jurisdiction is the

Gaddafi, his son Saif Al-Islam Gaddafi

1998 Rome Statute,4 which broadly reflects

and the then-head of Libyan military

the principle of universal jurisdiction,

intelligence Abdullah Al-Senusi for crimes

providing for prosecution of crimes of

against humanity committed in the course

concern to the international community as

of the 2011 uprising. Following Saif’s

a whole when the traditional requirements

capture in November 2011, however,

of jurisdiction are not met.5 However, the

Libya’s

Council

Statute’s provisions give states the right

(NTC) and newly-elected General National

to challenge a case’s admissibility before

1

2

National

Transitional

Council of Libya have failed to comply with the ICC’s requests to surrender him for trial. Instead, it has maintained that it will prosecute him domestically and has formally challenged the ICC’s exercise of jurisdiction.

1 SC Res 1970, UN SCOR, 6491st mtg, UN Doc S/ RES/1970 (26 February 2011).

2 Dapo Akande, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC’ (2012) 10 Journal of International Criminal Justice 2, 303.

standoff

between

the

Libyan

3 An authoritative definition of universal jurisdiction considers it to be ‘a legal principle allowing or requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim’. See eg. Kenneth C. Randall, ‘Universal jurisdiction under international law’ (1998) 66 Texas Law Review 785, 788.

4 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’).

5 Mireille Delmas-Marty, The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law (2003) 1 Journal of International Criminal Justice 1, 22.

(Photo credit: clarita) INTERNATIONAL ADVOCATE | 17

the Court on the grounds that the state is prosecuting the matter domestically.

6

Libya’s admissibility challenge, made

The Admissibility Test and the Scope of Libya’s obligations to respect ICC jurisdiction

in May 2012, presents the first case in

The Libyan government challenged the

which the ICC must give meaning to the

admissibility of Saif’s case under Article

admissibility test set out in Article 17 of

19(2)(b) of the Statute on the basis that

the Rome Statute, by determining whether

it was investigating and prosecuting Saif

Libya is willing and able to prosecute the

for the same acts and that it was capable

accused to the standard required for the

of prosecuting him domestically.7 Article

ICC to defer to domestic proceedings.

19(7) directs the Court to determine an

In making this decision, the Court must

admissibility challenge by applying the

navigate

test set out in Article 17.8

the

competing

normative

principles that inform whether the exercise of universal jurisdiction is legitimate. Do the widespread human rights abuses and significant failures of due process that continue in post-revolutionary Libya, and concerns surrounding the viability of Libya’s judicial system, indicate that the ICC should reject the admissibility challenge? Or does respect for Libya’s sovereignty, and the need to achieve transitional justice by developing an effective judicial system, dictate that the ICC should defer to Libyan jurisdiction?

Which approach more closely aligns with the Court’s overriding goal of ending impunity for crimes against humanity?

Balancing several competing normative principles, we conclude that the ICC should defer to Libya’s jurisdiction.

6 Rome Statute art 19.

18 | INTERNATIONAL ADVOCATE

Article 17 requirements Article 17 provides that the Court shall find that a case is inadmissible where that case ‘is being prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution’.9 In determining unwillingness, the Court must have regard to the principles of due process recognised by international law, including the risk that proceedings may not be conducted impartially or independently, with genuine intent to bring the accused to justice.10 In determining ‘inability’, the Court should consider whether ‘due to a total or substantial collapse or unavailability of the national 7 Marina Mancini, ‘The Day After: Prosecuting International Crimes Committed in Libya’ (2012) 21 Italian Yearbook of International Law (forthcoming), available at SSRN: http://ssrn.com/ abstract=2151903, 18.

8 Above n 4, art 19(7).

9 Ibid, art 17(1) 10 Ibid, art 17(2).

judicial system, the State is unable to

rights groups have reported numerous

obtain the accused or the necessary

instances of arbitrary arrest and detention,

evidence or otherwise unable to carry out

torture

its proceedings’.

access to judicial review or even lawyers

11

While Article 17 thus provides some guidance, there remains considerable ambiguity as to the level of due process protections, guarantees of independence and impartiality, and judicial capacity that must be in place for the ICC to defer to domestic proceedings. This ambiguity has given rise to conflicting opinions on which normative framework should prevail in determining admissibility. Some argue that the potential for unfair trials and human rights violations should be given greater weight, while others prioritise the principle of state sovereignty, the need to achieve transitional justice domestically, and the development of effective national judicial systems.

in

custody,

and

inadequate

for suspected Gaddafi loyalists.14 The suspicious deaths of former Libyan authorities, including Muammar Gaddafi, which have not received independent investigation, concerns.

15

further

highlight

these

While Libyan authorities are

genuinely seeking to bring Saif to justice, to stabilise the political situation and to develop and legitimate the Libyan judicial system,16 concerns have been raised that Saif has not yet received access to a legal representative.17 Moreover, the extent to which the Libyan government exerts full control over its judicial system is highly questionable, with thousands of detainees being held arbitrarily by militia groups without formal charges. .18

12

Due

Process

and

Human

Rights

Concerns Given

the

revolutionary

turbulence political

The Rome Statute requires the Court to consider ‘the principles of due process recognized

of

the

post-

landscape

in

Libya and the serious limitations of the judicial system resulting from years of authoritarian rule, it is highly possible that the accused may not receive a fair trial if prosecuted in the Libyan courts.13 Human 11 Above n 4, art 17(3).

12 Carsten Stahn, ‘Libya, the International Criminal Court and Complementarity: A Test for Shared Responsibility’ (2012) 10 Journal of International Criminal Justice 2, 334.

13 John J. Liolos, ‘Justice for Tyrants: International Criminal Court Warrants for Gaddafi Regime

by

international

law’

in

making the admissibility determination.19 Crimes’ (2012) 35 Boston College International and Comparative Law Review 589, 595, 597.

14 Human Rights Watch, World Report 2012: Events of 2011 (2012), 596-7.

15 Ibid.

16 Above n 12, 600-601.

17 ‘Prosecution Response to Application on behalf of the Government of Libya pursuant to Article 19 of the International Criminal Court Statute’, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah AlSenussi (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/11-01/11), (5 June 2012), 4 [8].

18 For example, see: Human Rights Watch, ‘Libya: As Deadline Passes, Militias Still Hold Thousands’ (News Release, 14 July 2012), 1.

19 Above n 4, art 17(2).

INTERNATIONAL ADVOCATE | 19

Arguably, therefore, the ICC should give

contributes to the fall of a leader as it did

serious consideration to the failings of the

here, the Court has a moral obligation

Libyan judicial system.20 However, many

to protect members of that regime from

argue that ‘the ICC is not a human rights

an unfair domestic trial.24 According

monitoring body, and its role is not to ensure

to

perfect procedures and compliance with

due process and access to a fair trial

all international standards’.21 Members

are of fundamental importance when

of the ICC also maintain that ‘the Court

determining admissibility.

cannot reject an admissibility challenge… solely on the ground that attributes of the State’s domestic procedure are not fully consistent with those of other legal systems including the Rome Statute’.

22

Rather, Libyan Courts should only be considered incapable of prosecuting if these failings rendered the judiciary ‘so inadequate that they cannot be

Robertson,

therefore,

issues

of

The Impact of Capital Punishment Another

important,

uncertain

aspect

of admissibility is whether the Court’s obligation to uphold international human rights standards requires it to consider that a domestic trial may result in capital punishment.25 Some, including Robertson,

considered genuine proceedings’.23

have argued that the prospect of the

On the other hand, as Geoffrey Robertson

the Court’s decision on admissibility.26

death penalty should strongly influence

QC has argued, when an ICC indictment

However, such a consideration could

20 Above n 12, 344.

21 International Criminal Court, Office of the Prosecutor, Informal Expert Paper: The principle of complementarity in practice (2003).15 [49].

22 Above n 17, 11 [28].

23 Above n 21, 8 [23].

24 Geoffrey Robertson, ‘Extradition of Abdullah al-Senussi is a blow to international justice’ The Guardian, Wednesday 5 September 2012.

25 Above n 12, 345. ��Above n 24.

(Photo credit: mconnors)

20 | INTERNATIONAL ADVOCATE

impede state sovereignty and impose

Firstly, the benefits for Libya of conducting

values which, owing to varying instances

the trial are significant. Bringing justice

of state practice, cannot be said to

domestically for the suffering caused

constitute international rules on domestic

by the Gaddafi regime is undeniably

legal systems.27

important to rebuilding the state.30 A domestic trial could help legitimise the

State Sovereignty

new popularly-elected government by

The Libyan case presents the first challenge from a state asserting its right to try an accused national domestically, and therefore raises important questions about the extent to which the Court’s jurisdiction should be permitted to infringe upon on state sovereignty. This issue was raised in the drafting of the Rome Statute and remains critical to the ICC’s jurisdiction.28 Since Libya is not a signatory to the Statute,

and

the

Libyan

authorities

maintain that they are ‘willing and able to try [the accused] in accordance with Libyan law’,29 a decision by the ICC to reject the admissibility challenge and infringe upon Libya’s sovereignty would be problematic in several respects, suggesting deferral is preferable.

evidencing a credible and effective judicial system.31. Secondly, the Court cannot enforce its decision if Libya does not cooperate by transferring the accused and facilitating the investigation, a clear reflection of the realities of the sovereign state system within which the Court must work. These realities suggest that deferring to Libyan jurisdiction and providing support aimed at ensuring a fair trial to the greatest extent possible will be most pragmatic way to achieve justice.32 Finally, the extent to which the ICC’s exclusive exercise of jurisdiction could be perceived among the Libyan public as a violation of Libyan sovereignty may significantly

undermine

the

popular

legitimacy of any ICC trial in Libya.

This concern is particularly acute when considering that the Court’s jurisdiction

27 Above n 12, 345.

28 See, eg, Jimmy Guruk, ‘United States Opposition to the Rome Statute Establishing and International Criminal Court: Is the Jurisdiction Truly Complementary to National Criminal Jurisdictions?’

(2001) 35 Cornell International Law Journal 1; Michael A Newton, ‘Comparative Complementary: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court’ (2001) 167 Military Law Review 20.

29 NTC Letter dated 23 November 2011, cited in Carsten Stahn, ‘Libya, the International Criminal Court and Complementarity: A Test for Shared Responsibility’ (2012) 10 Journal of International Criminal Justice 325, 335.

was imposed by a Security Council resolution linked to the NATO military intervention, and that the new popularlyelected government maintains that Saif should be tried domestically. A decision 30 Brenan Leanos, ‘Cooperative Justice: Understanding the Future of the International Criminal Court Through Its Involvement in Libya’ (2012) 80 Fordham Law Review 2267, 2303.

31 Above n 13, 597.

32 Above n 12, 348.

INTERNATIONAL ADVOCATE | 21

by the Court to assert jurisdiction in

ability to try other former members of the

these circumstances could cause it to be

Gaddafi regime. Such confidence would

perceived as ‘merely a tool of Western

serve the interests of the Libyan people

imperial power’.

– in supporting justice for past wrongs

33

jeopardise

the

This could significantly trial’s

support

and

as the nation transitions to a new system

legitimacy within Libya, undermining its

of government – and the international

very purposes of achieving justice for the

community

abuses that Libyans suffered under the

even States in transition can effectively

Gaddafi regime.

prosecute crimes against humanity.

–

in

demonstrating

that

The Larger Goals of the ICC

Transitional Justice

Ending Impunity

While domestic trials remain impossible

When determining admissibility, the Court must also consider the overarching goals of the Rome Statute in establishing a court ‘determined to put an end to impunity’ for crimes against humanity and ‘resolved to guarantee lasting respect for and the enforcement of international justice’.

34

This requires building an effective system of domestic courts that are capable of prosecuting international crimes and can act as a strong deterrent to future crimes.

35

There may well be other former members of the Gaddafi regime that could be brought

to

trial

for

crimes

against

humanity or serious crimes that do not meet that threshold. Were Libya to

in many cases, when there is the possibility of a domestic trial the ICC should not ‘compete with states for jurisdiction’.36

Achieving

transitional

justice domestically will be central to building the legitimacy of and confidence in newly-established judicial institutions.37 Furthermore, domestic trials will also allow Libya to address past crimes directly and feel involved in the process of achieving justice.38 Libyan authorities have emphasised these factors in their dialogue with the Prosecutor.39 A refusal to defer to Libya in this matter could be interpreted as an imperialist gesture that could undermine Libya’s willingness to reengage with the international community.

conduct a successful trial – that is, a trial process that upholds human rights and considerations of due process – this would engender greater confidence in its 33 Above n 13, 599.

34 Above n 4, preamble.

35 Above n 30, 2291.

22 | INTERNATIONAL ADVOCATE

36 Above n 21, 3 [2].

37 Above n 13, 597.

38 Above n 30, 2302.

39 ‘Prosecution’s Submissions on the Prosecutor’s Recent Trip to Libya’ The Prosecutor v Saif Al-Islam Gaddafi ad Abdullah Al-Senussi (International Criminal Court, Pre-Trial Chamber I, Case No ICC01/11-01/11, 25 November 2011) 3 [4].

Proactive Complementarity

human rights abuses and concerns

Numerous commentators have proposed,

bar the ICC from electing to defer to

and the ICC has considered, that an approach of ‘proactive complementarity’ should be taken, deferring to Libya’s jurisdiction but providing assistance to the domestic prosecution of the accused.40 This could involve publishing general standards or a best practice guidance for the conduct of trials for crimes against humanity, and providing a list of relevant experts that would be willing to assist.41 There is a risk of becoming entangled in domestic proceedings, however, and this might hinder the ICC’s ability to exercise proper judgment in the admissibility of future cases.42 It may also compromise

about failure of due process should not Libya’s jurisdiction. Deference to Libyan jurisdiction over both men would accord with the Rome Statute’s recognition of state sovereignty, support transitional justice in Libya, and promote the development of a network of states that are willing and able to investigate and prosecute crimes against humanity, which provides the best opportunity to achieve an end to impunity.

Elizabeth Brownhill and Andrew Swanson are both studying the Juris Doctor at the ANU College of Law. This article is adapted from an essay they were involved in with a number of other writers.

the ICC’s ability to ‘credibly criticise’ domestic proceedings that fail to meet the standards required.43 Such risks must be balanced against what this approach might achieve for both Libya and the broader international community.

Conclusion Libya’s challenge to the ICC’s prosecution of Saif Al-Islam Gaddafi and Abdullah AlSenusi is a watershed moment in the history of the ICC. As we have argued, 40 Above n 30; above n 2.

41 William Burke-White, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice’ (2008) 49 Harvard International Law Journal 53, 101.

42 ���������������� Above n 41, 100.

43 Above n 21, 6-7.

INTERNATIONAL ADVOCATE | 23

YOJO: YOU ONLY JESSUP ONCE

Why it’s worth spending your entire summer in the law library

By Picorelli Pal It’s noon.

Stacks of paper, several

metres high, litter the room.

With a growing feeling that I hadn’t quite

Boxes of

appreciated what I’ve signed up for, I

Thai food rest precariously on top of

flick through the twenty page problem

computers. The air stinks of coffee and

question – or, as it’s called in the Jessup

other unidentifiable odours. One of my

world, the ‘Compromis’.

teammates is curled up on the floor in a

scenario is about a sinking island, and

foetal position. We have not slept in 48

the nation that’s trying to help the island,

hours, nor felt sunlight on our skin for

partly by extending loans and partly by

days. We have just handed in our written

shipping the islander–refugees to a third

submissions, totalling 18,000 words, and I

country for processing. Sound familiar?

never thought it would come to this.

The allusions to Australia are even more

Three months earlier, on a sunny afternoon, I met my team–mates for the Phillip C. Jessup Mooting Competition for the first time. Our coach, Imogen Saunders, and faculty advisor, Wayne Morgan, divided up tasks and impressed upon us the importance of beginning early. They tried to foreshadow the magnitude of the task ahead. Don’t expect to go away for a weekend. Probably best not to have big nights out. Going away for Christmas?

Out of the question.

This year’s

apparent when I read that the nation’s Prime Minister is called Eileen Millard.

Uncanny. The Compromis raises real, contemporary questions in international law that do not have easy answers. Does an island, which has become completely submerged, lose its statehood? Are its people refugees? Are other nations under a duty to process people on their shores?

And if an island sinks, is it still fair to seize its assets to repay outstanding sovereign debt?

The most challenging, and the most rewarding, aspect of Jessup is that by the end of three months, you need to know the answers to these questions, right down to the obscurest detail. The competition consists of two elements: written submissions, and the oral rounds,

The 2013 ANU Jessup Team: Picorelli Pal, Katie Binstock, Natasha Purvis, Guy Stuckey-Clarke and Mark Jehne 24 | INTERNATIONAL ADVOCATE

where teams from Australian universities go head to head. The two teams who

The ANU 2013 Jessup Mooting team in the oral rounds

make the finals go on to compete in the

within a short period of time. I found out

international rounds in Washington.

All

that when practising law, the question is

teams prepare written submissions for

not how to find the correct legal argument.

applicant and respondent, and need to

The question is how to frame the existing

be prepared to moot both sides in the

law to put your client in as favourable a

competition. This means that, on one day,

position as possible. There is a kind of

you might be justifying why it’s consistent

intellectual satisfaction in standing up and

with human rights obligations for five

justifying a transfer of illegal migrants to a

people to die from dysentery in detention.

third country, where the migrants are very

On another, you’ll be trying to convince the

likely to have their human rights abused.

bench why the emission of greenhouse

It may be morally repugnant, but the art of

gases constitutes persecution for the

argument has a certain allure.

purposes of the Refugee Convention.

Jessup forces you to take unpalatable positions, and what’s more difficult, is that you have to argue it in front of a bench of three judges, who are often experts in the field, and alive to every flaw in your argument. But if you want to be a barrister, or even want a taste for what the act of legal representation is all about,

More

than

anything,

lesson in team-work.

Jessup

is

a

All those clichés

employers look for: clear communication, excellent interpersonal skills, leadership, synergy– all of those are required if you’re going to function as an effective unit for three months.

My team spent

up to twelve hours a day together,

Jessup is the perfect rite of passage.

often in the same room. Egos clashed,

Surviving Jessup has taught me more

something consumes your life to the

than anything else has at law school. I’ve

degree Jessup does, it’s hard to remain

learned how to research into new areas of

detached about it. At the same time, I

the law, and how to master these subjects

couldn’t have asked for a better group

tempers frayed, tears were shed. When

INTERNATIONAL ADVOCATE | 25

of people to spend my summer, nerding

complex areas of law. If you want a career

it up with. We played indoor cricket with

in international law, want to learn how to

library books. We substituted coffee for

speak in front of a judge, or want to hone

sleep.

We created the slogan, YOJO,

your research skills, Jessup is for you. It’s

(You Only Jessup Once, obviously) and

the hardest but also the most rewarding

proceeded to plaster it all over Facebook.

academic experience I’ve had, and I

We ate together; we drove home together,

would recommend it, whole-heartedly, to

and became finely tuned to each others’

everyone.

moods and work processes. We used each other to sound out arguments and to shoot down ridiculous ideas. By the end of Jessup, you learn how to speak fluently on your feet, while canvassing Picorelli Pal is currently in her final year of a Bachelor of Arts/Bachelor of Laws at the ANU. She was part of the ANU Jessup Team in 2013, and upon graduation hopes to pursue a career in international or constitutional law.

COURSE REVIEW

International Organisations. Introducing

LAWS2264: Advanced International Law

By Claire Wilson

the topic of International Criminal Law,

Having

lectured by Kevin Boreham. Covering

enjoyed

LAWS2250,

the

International Law compulsory course, I decided to take Advanced International Law in Semester Two 2012 to build upon the foundational concepts introduced in the previous year. Divided into two parts, the first six weeks of LAWS2264 focused on ‘State Responsibility’. Lectured by Sarah Heathcote, this section of the course built upon and enhanced my understanding of the the issues surrounding State

the final seven weeks of semester were Crimes against Humanity, War Crimes and Genocide, this material was fascinating, although at times confronting to study.

Drawing attention to the progress and the problems facing International Criminal Law, the course traced the roots of the discipline from the Nuremburg Trails to the contemporary cases before the International Criminal Court.

the

The Means of Assessment amounted to

compulsory course – I now realise there is

a one hour mid semester closed book

a whole lot more to the Tehran Hostages

exam and a take home exam at the end of

Case! The first topic of the course also

semester. While the take home exam was

briefly examined the responsibility of

typical of a College of Law examination,

Responsibility

introduced

26 | INTERNATIONAL ADVOCATE

in

the incredibly short time frame of the

The course introduces students to the

mid semester exam arguably did not

intricate international legal regimes that

give students adequate opportunity to

govern today’s network of multilateral

demonstrate the knowledge they had

trade agreements. The focus is on the

acquired. To this end, the only other

treaties under the WTO (‘World Trade

drawback of this otherwise engaging

Organisation’) and its predecessor, the

course was the lack of tutorials. Delivered

‘General Agreement on Tariffs and Trade’.

in a three hour a week lecture format, I would consequently not endorse the Advanced

International

Law

course

for students who thrive on the tutorial model. Nevertheless, I would recommend LAWS2264 to anyone who has an interest in international law and wants to build on material covered in the compulsory class – if nothing else, the Advanced International Law course will give you an even greater appreciation of the film Argo!

Claire Wilson is a fourth year undergraduate studying Bachelor of Arts/Bachelor of Laws at the ANU.

COURSE REVIEW

LAWS2226: International Trade Law

By Jack Lin

For students who prefer ‘black letter law’ courses, the study of international law tends to start and end with the compulsory course. However, International Trade Law introduces students to legal problems reminiscent of black letter law courses but with detailed insight into the political context behind trade policy. The course combines rigid rules and regulations of trade law with the dynamic and evolutionary touches of international law – really, it has the best of both worlds.

The framework of the course is fairly comprehensive with detailed coverage of topics that are thoroughly enjoyable to learn. The lecturers, Wayne Morgan and Imogen Saunders, have perfected it to satisfy any student’s intellectual curiosity by balancing the familiar problem based questions with essay topics on trade policy and its impact on environmental, developmental and human rights issues.

Initially, the economic outlook that the course

introduces

could

be

tough.

Background knowledge on economics is not required but it definitely helps you better appreciate the objectives of the WTO. Also, the shift from the problemsolving side of the course to the more policy-analysis focused topics could be a tough transition for those who strongly favour a particular side. However, the course is flexible and inviting enough for you to play to your strengths.

So, when looking out for elective courses, consider International Trade Law. You might be pleasantly surprised!

Jack Lin is a fourth year undergraduate studying Bachelor of Laws/Bachelor of Economics at the ANU.

INTERNATIONAL ADVOCATE | 27

ABOUT THE

ANU INTERNATIONAL LAW SOCIETY The ANU International Law Society (ILS) is a student run orgnisation located at the Australian National University in Canberra. The society is dedicated to promoting interest in and the study of international law. Its activities include publishing the International Advocate featuing contributions from students, academics and practitioners, as well as providing insightful events and valuble academic support to students.

For more information on the society’s activities, upcoming events and how you can get involved please visit www.anuils.com