Court of Conscience - Issue 7, 2013 by UNSW Law Society

COURT of CONSCIENCE A SOCIAL JUSTICE JOURNAL â&#x20AC;¢ ISSUE 7, 2013

There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts. – Mahatma Gandhi Conscience is a term of art and, as lawyers and students of law, our art is through words. Be them spoken, written or read, we dissect the English language with a rigour, detail and finesse unseen in other professions. We use words and expression to make an argument, to deconstruct an opponent and to stand up for justice. The essence of law lies in the interpretation of a word, the alignment of a phrase and the ability to articulate the needs and rights of the person being defended. It is through language that we make our voice heard; it is through language that we make a difference.

EDITOR-IN-CHIEF Katerina Jovanovska

EDITORIAL TEAM Madeleine James Rohan Muscat Sharanya Srikanth

LEGAL RESEARCH TEAM Josh Beale Leslie Phung Miles Ma

Design & ILLUSTRATION

Yet what use is a word without a good conscience, moral or ethic to uphold it? Law school is a time for establishing values, for learning about our place within the world and for applying rigour and critical thinking to the work we perform. It is about building confidence to trust our instincts and being bold enough to speak important truths. As we take a break from textbooks, lectures and essays, it is necessary to use our conscience to critique the black letter, think beyond it and communicate our insights in the hope of awakening the conscience of others. Court of Conscience, now an ALSA award-winning journal, is an arena for thought, reflection and consideration of major issues and injustices in Australia and around the world. It is a forum to explore and challenge the preconceived ideas of ‘justice’, to share areas of interest and passion, and express opinions on unique and interesting topics. Congratulations to the Court of Conscience team, led by Katerina Jovanovska, for their excellent work in producing this outstanding publication – undoubtedly one of the finest editions yet. In 2013, Court of Conscience is daring and unconventional. In the coming pages, we invite you to read about the rights of tyrants in international law, sex worker reform and neo-imperialism in the Middle East. These articles advocate justice for voices often silenced. They are thought-provoking and enriching. As we seek to push the bounds of ‘justice’ and elevate ourselves into a higher ‘court of conscience’, we hope that you can enjoy the proceeding articles and are inspired, in turn, to respond positively to the demands of social justice.

Niki Bañados, unless otherwise stated. www.niquary.com/design

Jacqueline Fetchet Vice-President Social Justice

VICE-PRESIDENT, SOCIAL JUSTICE

UNSW Law Society

Jacqueline Fetchet

PRESIDENTS, UNSW LAW SOCIETY Nathan Huynh & Kara Grimsley

The role of the Social Justice Portfolio is to promote the social conscience of law students through education, advocacy and community INVOLVEment. We encourage you to become involved with the activities, events and experiences we offer in order to engage and respond to pertinent issues of social justice.

CONTENTS I welcome you to the seventh edition of Court of Conscience. Court of Conscience 2013 will see UNSW students and Faculty of Law members grapple with legal, moral and ethical issues that are thought provoking and demand our attention as students of the law. The beauty of this realm of our legal education is that solutions to the issues identified within Court of Conscience can only come from discussion. Only through sparking debate and meaningful discourse about the issues that need more than a mere application of law will the necessary creative and conscionable solutions manifest. At UNSW Law, we lead this debate. Questions of social justice are constantly being thrown our way, and we are forced to ponder the fairness of the situations taking place in our courts and in our community. A law degree from UNSW means we are qualified not only in the law itself, but the art of questioning why something is happening, whether it should be happening, and formulating plans as to how to fix it in our capacity as law students and legal practitioners. This is the ethos that permeates Court of Conscience. I hope you read the articles with the knowledge that you have the ability to make a difference. The pages to come pose some difficult questions - questions that are worthy of spending some time trying to answer. Rather than developing an immunity to the idea that some people will suffer at the hands of justice, I encourage you to use your privileged position of being intimately acquainted with the operations of the law. Ask yourself whether it is fair, right or reasonable to punish those whom the legal system treats differently or unfavourably. Our courts are not only courts of law, but also courts of conscience. I hope the articles to come will inspire you to turn your mind to social justice, and advocate for fairness, equality and the just application of the law. I hope you enjoy the 2013 edition. Katerina Jovanovska EDITOR-IN-CHIEF Court of Conscience 2013 UNSW Law Society

Monique Dam & Ying Chin World Courts of Women: A transformative victim-based approach to gender justice

Oliver Moore The rights of tyrants

Prue Vines & Matthew Butt Running out of compensation money: whipping away the social security blanket?

Tarang Immidi (Dis)advantage in lower and higher courts

Marie Iskander HISTORY REPEATING: The persecution of homosexual men in modern-day Egypt and the struggle to recognize ‘sexual orientation’ as a grounds of persecution under the Rome Statute

Colin Fong Sub-ordination – 21 years later

Daniel Reynolds The ICRC customary law study: a small step towards more humane wartime practices

Josh Beale Race and Rivalry: Neoimperialism, intervention and the civilising mission post-1991

Brittney Rigby The faceless ‘boat people’

William Shrubb Transsexuals and the law

Michael Legg Federal Court fees up – access to justice down

Amber Karanikolas Sex work, autonomy and the injustices of criminalisation

Farah Abdel “A nation should not be judged by how it treats its highest citizens, but its lowest ones”

Chantal Tanner Who holds the scales of justice in matters of ‘Public Interest’?

SHARANYA SRIKANTH Creating value through a mutually beneficial relationship

World Courts of Women: A Transformative Victim-Based Approach to Gender Justice BY MONIQUE DAM & YING CHIN

The World Courts of Women is a transnational feminist project of civil society which aims to provide a public forum for women who are excluded from official state-based and international legal and political institutions. Initially coordinated by the Asian Women’s Human Rights Council,1 these courts are currently organised under the guidance of Corinne Kumar; Secretary General of EI Taller International, a global NGO committed to sustainable development and women’s human rights.2 To date, at least 30 such courts have been held in the Asia-Pacific, Middle East, Africa and Central America.3 World Courts of Women strive to include the experiences and perspectives of women which are often absent from dominant historical, legal and political narratives. In providing a symbolic ‘court’ of testimony for women from different parts of the world to name the crimes committed against them, victims and survivors can make their voice have their voices heard. The Courts are distinctly democratic, allowing victims to describe ‘crime’ and ‘violence’ in their own terms and thereby broadening the scope for different visions of injustice to be seen. Despite their lack of official authority, the Courts gain legitimacy through their commitment to a popular sovereignty model. The Courts have also played an important role in helping to build transnational solidarity and strengthening international and local women’s rights activism.

I. An Unconventional Approach World Courts of Women have been described as a ‘form of protest against forms of violence against women for which there is [sic] no legal remedies within local, national, or international judiciary systems’.4 Some might proclaim that ‘court’ is somewhat of a misnomer as the Courts are highly symbolic and function more as a forum of testimony for the voices of the women victims and survivors of violence. This symbolism is self-acknowledged as the Courts’ state that their aim is to ‘weave together the objective reality...with the subjective testimonies of the women; the personal with the political’.5 It is these women who name the crimes committed against them, which may not be generally recognised as a crimes under the law, reflecting the bottom-up nature of the courts and their radical democracy roots. The Courts seek to challenge the dominant human rights discourse in pursuit of ‘a new generation of women’s human rights by grounding themselves in the lived everyday experiences of women. The formalism which traditionally endows courts with legitimacy is not prioritised; an expert ‘Council of Wise Women and Men’ presides over the Court from an un-elevated platform, and witnesses and audience members are not spatially compartmentalised.6 The jury is composed 7

of experts of diverse backgrounds such as social activists, academics, lawyers, writers and historians. For example, the Jury for the 2001 Court of Women for Peace, Against War held in South Africa included former UN ambassador Mahjid Rahnema, former UN assistant Secretary General Dennis Halliday, human rights author Aicha El Channa and notably Aung San Suu Kyi as an honorary member (at that time, she was still under house arrest and therefore unable to be present).7 Another unique feature of the Courts is the incorporation of testimonies of resistance and the emphasis placed on the need to listen to the voices of the women who resist the violence. Part of the World Court of Women Against War, for Peace was dedicated to listening to testimonies of women central to movements for peace in Jerusalem (Women in Black), Rwanda (Widows of Rwanda) and South Africa (Anti-Apartheid activists). The Courts of Women also facilitate interaction between local NGOs and activists through workshops, seminars and roundtables.8 The aim is to build solidarity as a way of strengthening the bottom-up struggle for women’s human rights. The Courts accept song, dance and visuals as a means of testimony. This is partly due to a concern to prevent re-traumatisation of the victims but it is also an effort to be inclusive, in recognition of the illiteracy of some women. The inclusiveness of

the Courts of Women permeate not only conduct of process, but also their thematic considerations – the Courts address a broad range of violence in an attempt to avoid privileging some experiences of violence over others. This is particularly important in a society where sexual violence against women has tended to receive more attention at the international level,9 a fixation perhaps coloured by stereotypes of female passivity and vulnerability that in turn influence law enforcement, legal bodies and social policy.10 This is reflected in the Women, Peace and Security agenda of the United Nations of which thematic resolutions have focused on sexual violence. In contrast to this, the World Court of Women against War, for Peace, held in Capetown, South Africa in 2001, adopted a much

War Crimes Tribunals. By providing a space for women to articulate their experiences of war and post-conflict situations, the interconnectedness of issues of poverty, lack of social security, peace building and post-war reconstruction emerged. It thus facilitates analysis of the socio-economic dimensions of structural inequality and their impact on gender security, acting as an impetus for new visions of peace that incorporate gender justice.13

II. Redefining What Constitutes ‘Violence’ The manner in which Courts of Women extend their focus beyond the traditional parameters of discussions about female violence can further be seen through the Courts’ consideration of diverse forms of

In relation to violence against women, it is problematic that international humanitarian law maintains a false distinction between times of war and times of ‘peace’. broader view of the violence committed against women in conflict and in post-conflict contexts.11 Forty women from the Philippines, Bosnia, Lebanon, Rwanda, Cambodia, Sierra Leone, South Africa and Afghanistan gave testimonies to the Court comprising of nearly 4000 women and men from provinces of South Africa and 62 different countries. The themes of the Court included the roots of war and conflict, the war of borders and boundaries, militarisation, the war against women, the war of exclusion, racism and the war against human security and the globalisation of poverty.12 The Court explored alternative notions of justice and evaluated the efficacy of transitional justice legal institutions such as the Truth and Reconciliation Commission and International

violence. In the case of the 2001 World Court of Women Against War, for Peace, sessions were held on ‘wars as genocide’ in relation to rape as part of ethnic cleansing in Bosnia, ‘wars without borders’ which dealt with trafficking in Cambodia, ‘war against civilisations’ which considered the Stolen Generation in Australia, and ‘wars against women’ which examined dowry murders in India. The Court also examined the use of land mines in Cambodia and Agent Orange in Vietnam, a demonstration of the Court’s divergence from the fixation with sexual violence at the international level to examine a broader spectrum of violence experienced by women during armed conflict. The Court also dealt with violence against women outside of periods

of armed conflict, reflecting the way in which women experience violence continuously even in times of ‘peace’; including acts of female genital mutilation, fundamentalism and witch hunting. The Court of Women against War, for Peace demonstrates how the Courts of Women strive to encompass a broad range of violence to avoid the exclusion of certain experiences of violence. World Courts of Women also seek to prevent the potential re-victimisation of female victims of gender crimes in the context of formal, top-down legal proceedings. In further redefining what constitutes violence, the Courts adopt a much broader approach to what comes into the ambit of a ‘crime’ and a human ‘right’ than mainstream perceptions. For instance, the Courts speak of the violence of neoliberal globalisation where the deprivation of people of their economic, social and cultural rights is embedded in structures, rendering perpetrators unclear. Courts of Women have previously challenged the legitimisation of processes in the name of national security, law and order, and progress such as colonisation, globalisation and militarisation, which are perceived as constituting wars perpetrated against women. Courts of Women thus play a valuable role in ensuring that women’s lived experiences of political, social and economic inequalities are not overlooked, in giving them ownership of their experiences of violence as survivors and empowerment through resistance.

III. Empowerment through Ownership In conventional criminal courts, victims are invited merely to bear testimony to the crime and their status as the victim is often not directly acknowledged. It is also problematic that criminal charges are often framed in language promoting the restoration of the previous patriarchal order, rather than challenging the status quo. In relation to 9

international humanitarian law, Dixon argues that the priority is to obtain convictions for breaches of abstract legal norms rather than convictions for the crime of what the accused actually did to the victim.14 In the case of Kunarac,15 the International Criminal Tribunal for the Former Yugoslavia (ICTY) was unwilling to recognise the collective subjectivity of Muslim women as a relevant civilian population, preferring to find the attack as directed against the Muslim civilian population generally.16 This decision reveals the limited potential of the international criminal process to recognise the specific and gendered harms suffered by victims of war crimes.17 To counter this, World Courts of Women seek to empower victims by allowing victims to name the crimes committed against them thereby enabling greater ownership of the process. The Courts recognise the importance of public acknowledgement of victimisation in the provision of healing and closure”.18 The transformative potential of the Courts is also found in their subversion of traditional dichotomies and assumptions. Article 27 of the Fourth Geneva Convention states: “[w]omen shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault”19; the language of which reflects the values of a patriarchal society. This characterisation of rape and other forms of sexual violence as attacks against the ‘honour’ of women implies that ‘honour’ is something lent to women by men and that a raped woman is ‘dishonoured’. The trickle-down effect this can have on national institutions is significant; for instance, the phrase ‘honour’ is used in many national military guides.20 The failure of such international instruments to portray sexual violence as a violent crime that violates bodily integrity presents a serious obstacle to addressing crimes of this nature against women. The protective, rather

than prohibitive, nature of the provisions indirectly reinforces the trivialisation of such offences.21 World Courts of Women can thus be seen as a vehicle through which to challenge such patriarchal assumptions which are embedded in law. In relation to violence against women, it is problematic that international humanitarian law maintains a false distinction between times of war and times of ‘peace’. Mainstream legal discourse can also be seen to operate around a ‘hierarchy of harms’, in which divisions are created between ‘ordinary’ and particularly egregious violence; where the latter category is more often perceived as meriting redress.22This artificial separation results in the tendency for violence committed against women to fail to fit ‘narrow legal categories that dominate general understandings of serious human rights violations’, with the effect that ‘normal pervasive sexual and physical violence against women is simply not counted in the overall narrative of conflict or regime change’ (emphasis added).23

who are often excluded by dominant legal and political institutions to give testimony of their experiences of violence in a multiplicity of unconventional ways such as through song, dance and visuals, resulting in greater inclusiveness. By enabling women to name the crimes committed against them in their own terms and rejecting hierarchical divisions of the courtroom, the Courts of Women adopt a radical democracy model which lends it popular legitimacy. Importantly, such democratic tendencies have been further realised through the Courts’ demonstration of a conscious effort to recognise the diverse forms of violence that women experience in their everyday life; empowering participants through acknowledgment of their status as victims and survivors. It can thus be seen that the World Courts of Women provide a platform for women whose voices are unheard to condemn the perpetrators of the violence committed against them, and in so bringing its participants one step closer to a holistic realisation of gender justice.

IV. Conclusion This article has attempted to demonstrate the potential of World Courts of Women to reinvigorate feminist concerns in the public sphere. The Courts have enabled women

References 1. People’s Movement Assembly Resolution of Action, Introduction on the World Court of Women (2007–2008) Women’s Economic Agenda Project, <http://weap.org/WCW/WCWAbout.htm>. 2. Lucis Trust, Interviews ( Lucis Trust World Goodwill Organisation, <http://www.lucistrust.org/en/service_activities/world_goodwill/interviews>. 3. Corinne Kumar, The Vision, Asian Women’s Human Rights Council and EI International, <http://www.rutapacifica.org.co/descargas/mdn/pon_CorinneKumar.pdf>. 4. Marguerite Waller, News: The Courts of Women (17 April 2011) The Women’s Economic Agenda Project <http://weap.org/news/386/17/The-Courts-of-Women.htm>. 5. Kumar, above n 3, 1. 10

6. Waller, above n 4. 7. Corinne Kumar, The World Court of Women for Peace, Against War : A Brief Overview (25 March 2001) Women in Black Leuven <http://snellings.telenet.be/womeninblackleuven/world_court_ women.htm>. 8. Waller, above n 4. 9. Dianne Otto, ‘Power and Danger: Feminist Engagement with International Law through the UN Security Council’ (2010) 32 Australian Feminist Law Journal 97, 102. 10. Paula Ruth Gilbert, ‘Discourses of Female Violence and Societal Gender Stereotypes’ (2002) 8 Violence Against Women 1271, 1271. 11. United Nations Peacekeeping, Women, Peace and Security (2000) United Nations, <http://www.un.org/en/peacekeeping/issues/women/wps.shtml>. 12. Kumar, above n 7. 13. The Gender and Development for Cambodia, Report on World Court of Women Against War, for Peace (2–9 March 2009) Gender and Development for Cambodia <http://www.bigpond.com.kh/ users/gad/gadnet/repSA01.htm>. 14. Rosalind Dixon, ‘Rape as a Crime in International Humanitarian Law: Where to from Here?’ (2002) 13 European Journal of International Law 697, 699. 15. Kunarac et al. (IT-96-23 & 23/1) “Foča”. 16. Dixon, above n 15, 701. 17. Dixon, above n 15, 705. 18. Dixon, above n 15, 709. 19. Geneva Convention (IV) Relative to the Protection of Civilian Person in Times of War, adopted 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) art 27. 20. Customary International Humanitarian Law, Practice Relating to Rule 93: Rape and Other Forms of Sexual Violence (2013) International Committee of the Red Cross <http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule93>. 21. Otto, above n 9, 116. 22. Fionnuala Ní Aoláin, ‘Women, Security and the Patriarchy of Internationalised Transitional Justice’ (2009) 31 Human Rights Quarterly 1055, 1059. 23. Ibid 1061.

Both the Universal Doctrine of Human Rights and the International Covenant on Civil and Political Rights address the importance of a fair and open trial1, and the need for justice to be dispensed by an independent and impartial judiciary, not arbitrarily. The notions of natural justice and procedural fairness are commonly accepted in Australia and other Westminster systems, and domestically, this is applied to alleged rapists, murderers and paedophiles, with human rights given to those that have committed even the most repugnant acts. Nevertheless, internationally, this right is rarely given to the dictators and tyrants post-regime, with transparency and due process not seen as a priority in the transition of power. The examples of former dictators Muammar Gaddafi of Libya and Saddam Hussein of Iraq exemplify the challenges to reconciling the crimes of the past with future stability. Saddam Hussein was tried summarily, his gruesome execution captured on film and broadcast to an international audience, whilst Muammar al-Gaddafi was killed before facing trial, his body displayed as a symbol of the displaced

regime. In both cases, the absence of a fair trial has prevented the implementation of the rule of law and exacerbated regional conflicts. This article seeks to promote the rights of tyrants, the perpetrators of horrific crimes, individuals that are admittedly not usually worthy of the sympathy of the international community. However, it is not simply for their benefit that transparent justice is the most desirable outcome. A fair trial, followed by incarceration if found guilty, deprives them of martyrdom, and sets the tone for a peaceful transition of power.

I. The disadvantages of death without trial In June 2011, the International Criminal Court issued a warrant for the arrest of Gaddafi, stating that under article 58(1) of the Rome Statute,2 ‘the arrest of Muammar Gaddafi appears necessary at this stage to… ensure his appearance before the Court’,3 although this never eventuated. Instead, on the 20 October 2011, a targeted NATO drone strike hit a convoy of vehicles attempting

to flee westward from the coastal town of Sirteiv. This was followed by a skirmish with Misrata militiamen, whilst at the same time Gaddafi attempted to hide in two drainage pipes underneath a major road.5 From here, the truth is difficult to determine, as accounts differ on the precise details of how Muammar Gaddafi was killed. A United Nations report states that Muammar Gaddafi was alive on capture, subsequently dying in custody,6 although it draws no inferences as to whether this was an unlawful killing. Contrastingly, Human Rights Watch asserts that the militia abused Gaddafi upon capture, with one soldier stabbing him with their bayonet, Gaddafi consequently dying within two hours of capture.7 Furthermore, the Human Rights Council was not provided with autopsy reports by the authorities, preventing a conclusive determination.8 The gruesome images of a mangled but recognisable Gaddafi flooded the internet and news media upon his death, a cause for celebration for many of the people that suffered under his regime,9 although the violence of his death served as an ominous

...without a trial, Gaddafi’s victims have lost the opportunity for his actions to be denounced. sign of the transition process to come. The legal response to the indeterminate cause of death has been insufficient, with the chaotic lack of proper legal inquiry demonstrating the obstacles faced by the new Libyan government in the enforcement of the rule of law, leading the Human Rights Council to call for further enquiry into the matter.10 Like the death of Osama bin Laden, the disputed

circumstances surrounding Gaddafi’s death drew attention away from his crimes, and without a trial, Gaddafi’s victims have lost the opportunity for his actions to be denounced. Furthermore, the deaths of Gaddafi and bin Laden without trials allows a tyrant and a terrorist to be spared the deserved shame and stigma of imprisonment, instead enjoying the luxury of death and the postmortem glory of martyrdom.

II. The International Criminal Court - A model for justice? Ideally, tyrants such as Gaddafi would be brought to justice through the International Criminal Court, which provides the most impartial and authoritative body for the trial of war criminals. The international legal environment has developed significantly since the creation of the International Military Tribunal at Nuremberg, which introduced the notion of individual responsibility for crimes of the state. The ad hoc tribunals created in response to regional crises, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) have been critical to reforming the culture of impunity, by taking effective measures to enforce individual criminal responsibility.11 The most important development in recent years has been the increasingly accepted place of the ICC in the international judicial regime. The ICC has the broad consent of the states behind its establishment, and even those that have opted not to consent to ICC jurisdiction support mechanisms of international accountability. Although the ICC has faced criticism on the basis of procedural fairness, and attacks on its legitimacy,12 it provides the best hope for holding leaders accountable and enforcing the standards of the wider international community. Furthermore, the creation of a permanent, independent judicial body has led to ‘not only a punitive but also a restorative function’ through the participation 14

and reparation of victims and affected communities. The legal force of the ICC is enhanced by the legitimacy it has earned through the consent of over 120 nations to its jurisdictions, processes generally seen as fair and impartial, and the universally desirable goal of achieving peace and stability.

III. The quest for legitimacy From the trial of Charles I in 1649 to the trial of Saddam Hussein, trials of former heads of state have been frequently challenged on the basis of illegitimacy, with the defendants contending the court does not have jurisdiction over their actions. In the ICTY and ICTR, the cases of The Prosecutor v Tadic13 and The Prosecutor v Kanyabashi14 challenged the legality and legitimacy of the tribunals. In addition, Antonio Cassese, Former President of the Special Tribunal for Lebanon has outlined a test of legitimacy to be applied to international tribunals. As Cassese states, an institution is considered legitimate when the ‘majority of the population, or the majority of the institution’s constituency, expresses a high degree of consent and approval for

IV. The trial of Saddam Hussein A prime example of this is the farcical trial of Saddam Hussein initiated in 2004, with the lack of due process creating a crisis of legitimacy for the court. Furthermore, the court lacked procedures to safeguard it against accusations of being a ‘show trial’, as the US and Britain exercised a high degree of planning and control of the trial.18 Salem Chalabi, a member of a powerful Iraqi family allied with the US, was appointed to head the trial despite being a trial lawyer with no judicial experience. Additionally, public access to the trial was denied, and proceedings were subjected to heavy censorship.19 Consequently, the trial and execution of Hussein had a detrimental impact on the transition of power, as many of his crimes were left unaddressed and large sections of the Iraqi people refused to accept the legitimacy of the decision. As former Egyptian President Hosni Mubarak stated at the time, ‘No-one will ever forget the way in which Saddam was executed - they turned him into a martyr, and the problems in Iraq

No-one will ever forget the way in which Saddam was executed - they turned him into a martyr, and the problems in Iraq remained. it’.15 The values, principles and goals are the institution’s ‘legitimating grounds’16 and a legitimate tribunal must have the consent of the wider population, a legitimate purpose based on universal values of truth and justice, and must achieve performative legitimacy through due process.17 The ICC strives to meet these goals, as have the ICTY and ICTR before it, although trials of former leaders often fail to meet these basic standards. 15

remained’.20 In contrast, the trial of former Serbian leader Slobodan Milosevic was given sufficient resources to defend himself, and was also allowed to publicly challenge the legitimacy of the ICTY.21 This sometimes led to Milosevic frustrating the trial proceedings, but it ultimately assisted the court gain legitimacy, as justice was done publicly and the facts of the case unfolded in a manner unbiased by legal processes.

V. Conclusion Satisfying the rights of victims, defendants and the wider population has proved to be a difficult balancing act in the pursuit of international justice. The ICTY has recently come under criticism for its failure to convict Croatian generals in the Balkan conflict and not doing enough for the victims of the war crimes. However, those indicted by the ICTY include heads of state, prime ministers and army chiefs-of-staff and this has assisted the

reformation of a culture of impunity and facilitated a healing process. Contrastingly, show trials and executions only serve to exacerbate conflicts, exemplified by the consequences of the premature deaths of Gaddafi and Hussein. If heads of state are to be held accountable in the future, then the rights of tyrants and the most abhorrent war criminals must be upheld as due process is a necessary precursor to the achievement of peace, stability and reconciliation.

References 1. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 14; Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), art. 10. 2. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), art. 58(1). 3. Situation in the Libyan Arab Jamahiriya (Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/11, 27 June 2011 [19]) 4. Human Rights Watch, Death of a Dictator (2012) 1. 5. Ibid. 6. Human Rights Council, Report of the International Commission of Inquiry on Libya, 19th sess, Agenda Item 4, UN Doc A/HRC/19/68 (2 March 2012) 9 [33] 7. Human Rights Watch, Death of a Dictator (2012) 7. 8. Ibid 9[33]. 9. Jawad, R, ‘Gaddafi's death prompts wild celebrations in Tripoli’, BBC News (London) 20 October 2011. 10. Human Rights Council, ibid. 9[33]. 11. Popolevski, V 2012, ‘Legality and Legitimacy of International Criminal Tribunals’ 12, chapter in Falk, R et al 2012, Legality and Legitimacy in Global Affairs, Oxford Univerity Press, Oxford. 12. Ibid 20. 13. Prosecutor v Tadic (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-94-1-A, 15 July 1999). 14. Prosecutor v Kanyabashi (Judgement) (International Criminal Tribunal for Rwanda, Trial Chamber II, Case No ICTR-97-29-T, 8 March 2002). 15. Cassese, A 2012, ‘The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice’, Leiden Journal of International Law, vol. 25, no. 2, 492. 16. Ibid 492. 17. Ibid 494. 18. Peterson, J 2007, ‘Unpacking Show Trials: Situating the Trial of Saddam Hussein’, Harvard International Law Journal, vol. 48, no. 1, 282. 19. Ibid 286. 20. BBC World News, ‘Hanging ‘makes martyr of Saddam’’, BBC News (London) 5 January 2007. 21. Scharf, M 2002, ‘The Legacy of the Milosevic Trial’, New England Law Review, vol.37, 915. 16

Running out of compensation money: whipping away the social security blanket?1 BY PRUE VINES & MATTHEW BUTT

Most Australians assume that if they run out of money they can turn to social security. However, when a person runs out of compensation that safety blanket may not be as available as expected. This discussion focuses on NSW but applies in similar terms to other parts of Australia. The common law principles for the award of damages continue to apply, subject to the caps and limits put in place by the Civil Liability Act 2002 (NSW). The general rule is that the injured person is to be placed back in the position they would have been in had the accident not happened, so far as money will allow: Todorovic v Waller (1981) 150 CLR 402. This is the reason it has always been ‘better’ to injure a poor person than a rich person. In order to put the person back into that position various heads of damages are considered, including lost earnings and lost earning capacity, expenses incurred, future expenses, and general damages (pain and suffering, lost life-time etc). Because compensation is not intended to punish the defendant (who, after all, may not have done anything very wrong – for example, look sideways while driving) the courts try to ensure there is no element of extra compensation by deciding on the low side in many of the heads of damages. Overall, compensation is worked out on the basis that the person should be able to continue to live, more or less, as they did before, and 17

it is calculated to last according to the life expectancy of the victim. This seems fair enough. But many people run out of money before that life expectancy is over. Sometimes this is because the person did not use the money wisely, but there are other reasons. One is the discounts applied. The earnings component will be discounted 15-30% for the “vicissitudes of life”; and the whole lump sum will be discounted 5% for the fact that the money is being received earlier than it would had the accident not happened. So, if your lump sum runs out you can apply for social security, right? Wrong. Or probably wrong. There are many examples of people who have run out of compensation, not necessarily because they wasted the money, but who, on application to social security found they were ‘precluded’. If this happens to you it is a nasty shock if your solicitor didn’t warn you that it might happen. The Social Security Act 1991 (Cth) provides that where compensation has been awarded for lost earnings the person compensated will not be eligible for social security for a ‘Lump Sum Preclusion Period’ (‘LSPP’). This may not be not as fair as it first seems. There are two big issues: how the LSPP is calculated, and the fact that it ignores lawyers’ fees.

Calculation of the Lump Sum Preclusion Period The LSPP is calculated by dividing the ‘compensation part’ (that is the earnings part) of the compensation by the ‘divisor’, as defined in the Social Security Act 1991 (Cth). Where compensation is received by settlement, the ‘compensation part’ is 50% of the lump sum, regardless of the actual amount claimed for lost earnings. If the matter is decided by a court the ‘compensation part’ is whatever the court specifies. The divisor is set at the amount of income a single pensioner can earn in a week before the pension is lost. At present that is about $880. Consider Joe. He was injured at work, lost a leg and the use of his right hand. In constant pain he can no longer work as an electrician or any kind of tradesman and has no other work skills. Because he is 48 it is unlikely that he will be able to work again. He can no longer play the tuba in the band

he belonged to. He had been paid about $3000 per fortnight (net). His case was settled and he received a lump sum of $530,000 on the basis that he was unlikely to be able to work again and that his life expectancy would be about 65, or another 16 years. He thought of investing the remaining money but couldn’t think what to do so put most of it in a term deposit. He tried to spend a bit less than he used to but with rent, food, a holiday costing about $3000, the lawyer’s fees and significant medical expenses including on pain medication all the money had gone after 5 years. Joe had confidently expected social security to look after him. But they calculated his LSPP on the usual basis that the compensation amount was half of $530,000 = 265,000. Divided by the divisor of 880 =301 weeks that gave 6 years. He would not be entitled for at least another year. Joe was destitute and soon after he was homeless. Notice the difference between the court’s original calculation of how long the money would last and the social security calculation.

Is it reasonable for the social security preclusion period to be calculated quite differently from the way the compensation was calculated? 18

Lawyers’ fees

We need to ask questions about this. Is it reasonable for the social security preclusion period to be calculated quite differently from the way the compensation was calculated? Taxpayers should not be overburdened; but this contradicts the compensation principle, which is to put the person back in the position they would have been in if the accident hadn’t happened. Damages are not awarded on the basis that the plaintiff should have to live as if they are on the pension; but the LSPP formula directly contradicts this approach; and the failure to take account of the cost of lawyer’s fees exacerbates the problem. This leaves people like Joe with no options. The inadequacy of compensation, by this process is converted into an accelerator of people’s fall through the social security safety net into destitution. It could happen to anyone, even you.

1 Prue Vines, Professor, Law School, UNSW and Matthew Butt, Litigation Solicitor, Welfare Rights Centre. We are currently carrying out a research project on the impact of compensation on social security rights.

image is a detail from “Reine de Joi” by Toulouse-Lautrec

The second issue for the person who has run out of compensation is that the calculation of the LSPP ignores the cost of getting the compensation – that is, the lawyer’s fees. This is a very big issue, particularly since the no-win- no-fee system has been allowed. The arrangement is usually that a percentage (as much as 40%) comes out of the compensation if there is a win. It turns out that Joe’s nowin-no-fee agreement provided that he would pay 20% of his award to the lawyers who litigated his compensation award. This means that he got 20% less in his hand. He actually got not $530,000 but $434,000. But when the LSPP is calculated this is ignored. This means that the preclusion period is one year or longer because of money Joe never had.

sex work, autonomy and the injustices of criminalisatioN* by amber karanikolas 20

light as other professions. If the answer is in the negative, what then makes sex work different? Many sex workers defend their right to be paid for sexual acts and value the “dignity and liberty” of the profession.6 It is also often argued that sex work does not fundamentally differ from other kinds of professions through arguments that whatever exploitation or degradation accompanies sex work originates from its morally and legally stigmatised practice.7 Jody Freeman eruditely summarised the ‘inescapable dilemma’ of the prejudiced practice, signposting two overarching issues: * Due to the disproportional amount of women involved in the sex industry, this article will be concerned with what may appear to be a particularly heteronormative view of the industry. Although I acknowledge the heterogeneous and diverse identities of those involved in sex work, (especially the fact that men are sex workers as well), this is, unfortunately, outside the scope of this research, as I will be focusing on those who identify as women who are involved in sex work.

making truly autonomous choices.3 Physical coercion interferes with autonomy but is not the only factor impeding the autonomous right of persons.4 The respective literatures of St James Richards and Schulhofer assume a broad definition, whilst Elizabeth and Scott Anderson have favoured a narrow approach.5 For the purposes of this essay I will adopt Schulhofer’s wide delineation to consider how international societies have developed customs which impinge on the choice and consent of its democrats.

I. Introduction - A War between Definitions

II. Sex Work versus ‘Normal Work’: is there a Difference?

Understandings of the definition of autonomy have been central to the way we view human rights in relation to sex work. The conflicting views on whether sex work is ‘real work’ seem to crux on how we define sexual autonomy itself. Stephen Schulhofer defines sexual autonomy as the freedom of every person to decide whether and when to engage in sexual activity.1 In specific relation to sex work there ought to be a “right to safeguard and exclude, the freedom to refuse to have sex with any person at any time, for any reason or for no reason at all.”2 Questions of autonomy will always involve problems of degree, and social conditions habitually prevent individuals from

It prima facie appears impossible to reach a single conclusion about the role of autonomy in the choices of sex workers, or lack thereof, particularly in light of the protracted history of feminist literature around the issue. Sex workers themselves hold a multitude of conflicting views about their own autonomy, and scholars, academics and advocacy groups are all opinionated on the dynamics of consent and autonomy in the realm of sex work.

When considering a woman’s choice to enter sexual relations in return for money, it becomes necessary to evaluate whether sex work can be discussed in the same

“[R]esist[ing] the commodification of women’s sexuality …requires [either] circumscribing choices that some women themselves insist are voluntary, or to support the right of women to do the work they say they want to do, at the cost of reinforcing male dominance.”8 This dichotomy in opinion affects our interpretation of sex work. Are sex workers exercising sexual freedom and pleasure as free agents, or conversely, are sex workers exclusive victims of their customers?9 Gayle Rubin rightly believes that “democratic morality should judge sexual acts by the way partners treat one another, the level of mutual consideration, the presence or

This dichotomy in opinion affects our interpretation of sex work. Are sex workers exercising sexual freedom and pleasure as free agents, or conversely,

absence of coercion, and the quantity and quality of the pleasures they provide.”10 This ethical view ought to be accepted as the proper lens through which we evaluate the role of autonomy in sex work. This is because there is general acknowledgement, not only that women participate in sex work ultimately for economic gain, but also because receiving an income should not trump the safety of the individual. Many (but definitely not all) workers of the sex industry are unfairly, yet likely, to be exposed to “danger, disease, mistreatment, [violence], insecurity, psychological abuse, and emotional pain”.11 Ample research provides that socioeconomic and political factors such as gender parity, loss of job security and the feminisation of poverty are the major causes for female involvement in the sex industry.12 For some women it is an active choice but for many it is a last resort where women are required to consent.13 It is this permeating notion of socio-economic and political coercion which is the point of disagreement and a major reason why sex work has historically proved so perplexing. In any case, the conditions sex workers have worked and continue to work under has been overshadowed by notions of ‘voluntariness’ and the sex profession’s ‘patriarchy’.14 Interestingly Kathleen Barry rightly champions the idea of the existing “uselessness” of “choice” rhetorics by highlighting that sex work is not concerned with female autonomy, but rather the autonomy of customers.15 An increasing number of writers are understandably requesting greater focus on those who purchase sex work, rather than concentrating on the female workers themselves.16 This is in an attempt to attack the “root of the problem”.17

are sex workers exclusive victims of their customers? 22

III. To Reform, or not to Reform? That is the Question

legislated purpose; it has propelled the sex industry further underground.20

Crafting policy and reform proposals that protect the autonomy of the individual without legitimising sexist elements of the practice has proved overwhelming for moral and legal theorists.18 State regulation or criminalisation is often a further imposition on the autonomy of sex workers.

Decriminalisation, the granting of (some) autonomy back onto sex workers, thus seems a viable solution to the conundrum. If sex workers can organise, form support groups and run self-help networks, they will be enabled to exert some control over the coercive elements of the practice.21 By listening to sex workers themselves, it is clear that many are weary of being subjected to other people’s views of appropriate sexuality.22

Advocacy groups, such as the Canadian Organisation for the Rights of Prostitutes (CORP), lobbies for reform of criminal laws in relation to sex work. CORP strives not only for decriminalisation of the socalled ‘offensive’ and ‘amoral’ sex worker profession but also justifiably believes that sex workers be allowed to organise, pay taxes and receive unemployment insurance. In short, CORP’s “ideal situation is” to set their “own standards.”19 Decriminalising sex work is especially important from a moral standpoint. This is because it is increasingly difficult for sex workers to report violence and other crimes committed against their person for fear of themselves being prosecuted. Combined with the lack of protection and support available for sex workers in such circumstances, the criminalisation of sex work has ironically yet unjustifiably only achieved the opposite of its

However, decriminalisation and reform are only the starting points for the professionalisation of the practice which could lead to improved working conditions for many women. Although lobby groups for sex worker rights and many feminists unwaveringly express different long-term goals, they ought to agree on shortterm reform proposals to create some prospect for any long-term aspirations.23 Decriminalisation, albeit not a conclusive end to sex worker discrimination, would allow for unionisation, harm-minimisation policies, the extension of worker benefits, and health and safety regulations. All of which could significantly improve the life of, and provide some empowerment to, those working in the sex industry.24

An increasing number of writers are understandably requesting greater focus on those who purchase sex work, rather than concentrating on the female workers themselves. This is an attempt to attack the “root of the problem”.

The first effect after enactment was an immediate drop in the numbers of women visibly working. A problem here arises, There has been recent debate in Europe because these findings unlikely reflected a about legal changes introduced in several departure from sex work, but rather only countries. In Sweden, sex work is considered a likely emphasised how sex workers and ‘social problem’, and uniquely laws criminalise their clients have chosen less visible ways the purchasers of sexual services in an of proceeding with their business. Also, the attempt to reduce demand. The legislation number of convictions is startlingly low. In hopes to achieve equality between males the first nine months of 1999 only three sex and females at a national level in Sweden clients were found guilty and charged. While by defining sex work as a form of violence project workers have emphasised that they against women.25 Since January 1, 1999, are available to sex workers for support, sex purchasing or attempting to purchase sexual workers seem to find it increasingly difficult services has constituted a criminal offence to contact project workers. Subsequently, punishable by fines and up to six months project workers have had little success.30 imprisonment.26 It is in this way that Swedish Moreover, not only should the effect of laws, despite being highly regulatory, can be the legislation be considered at the local considered abolitionist.27 level, but ought to be discussed on an The ‘Swedish Model’ has recently been international, scale, because immigrant adopted by other countries such as France.28 sex workers in Sweden are also likely to be Yet, it is important to note that the ‘Swedish driven underground in fear of deportation.31 Model’ is an alternative to sex work distinct The consequences of sex work being driven from decriminalisation, because under the underground means that sex workers and ‘Swedish Model’ sex work remains illegal. their clients increasingly evade visibility and A support system was introduced that thus criminal sanction. included permanent government funding of Although the ‘Swedish Model’ is a practical municipal sex worker projects, counselling and retraining possibilities.29 Yet, their success and virtuous legal policy solution to the sex worker dilemma by aiming to criminalise has been hampered by the way statutory the agents and managers of brothels who regulations affect the women involved.

IV. The ‘Swedish Model’: An Avenue for Justice?

If sex workers can organise, form support groups and run self-help networks, they will be enabled to exert some control over the coercive elements of the practice. By listening to sex workers themselves, it is clear that many are weary of being subjected to other people’s views of appropriate sexuality. 24

photo by quinn norton

financially profit from the sex work, it is often the working women in particular who suffer.32 The ‘Swedish Model’ therefore ultimately fails to protect the autonomy of sex workers. Is then decriminalisation the only justiciable answer? Governments therefore ought to opt for decriminalisation, the establishment and permanent funding of health and support programs, and to follow the United Nations’ recommendations on sex work policy which would establish sex work as ‘real work’.33 Decriminalisation of sex work should include the abolition of criminal laws and penalties for the purchase of sex (as Sweden does) the management of sex workers and brothels, and other activities in connexion with sex work.34

V. Conclusion – Decriminalisation: the Only Reasonable Alternative? Sex work is largely a response to a lack of economic alternatives which not only

results in constraints on women’s options and freedom, but also contemporaneously forces them into a position of limited choice in what should be a right to choose or refuse sexual partners.35 Although some undertake sex work voluntarily, we must remain cognisant of the relativity of choice; where there exists an ability of social constituents to influence decision making which could impede an individual’s capacity to give ‘consent’. We ought to remain aware that legislation aimed at eliminating poverty and increasing employment options for women is equally as necessary as state action regulating or the practice itself.36 As seen with the failures of the ‘Swedish Model’, without formal and pragmatic state efforts to achieve gender equality, legal regulation and criminalisation of sex work, there will remain ineffective strategies to deter those involved in the sex industry. Subsequently, without decriminalising sex work, legal systems ubiquitously will continue to, and further, deprive sex workers of their human right to autonomy.

References 1. Stephen J Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law (Harvard University Press, 1998) 99. 2. Ibid. 3. Ibid 107. 4. Ibid 100.

5. 6. 7. 8.

Jeffery, Gauthier, ‘Prostitution, Sexual Autonomy, and Sex Discrimination’ (2011) 26(1) Hypatia 166, 176. Christine Overall, ‘’What’s Wrong with Prostitution? Evaluating Sex Work’ (1992) 17(4) Signs 705, 705. Gauthier, above n 5, 167. Jody Freeman, ‘The Feminist Debate Over Prostitution Reform: Prostitutes’ Rights Groups, Radical Feminists, and the (Im)possibility of Consent’ (1990) 5 Berkeley Women’s Law Journal 75, 76. 9. [The citation given was incorrect and no part of the article cited reflected the ideas expressed by this sentence] In the event that you do find the ideas reflected, the correct citation is ‘Ibid 77.’ 10. Gayle Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’ in Carole Vance (ed), Pleasure and Danger (Routledge and K. Paul, 1984) 143, 153. 11. Overall, above n 6, 710. 12. Monica O’Connor and Grainne Healy, Coalition Against Trafficking in Women and the European Women Lobby, The Links between Prostitution and Sex Trafficking: A Brief Handbook (2006) 6. 13. Overall, above n 6, 711. 14. Freeman, above n 8, 86. 15. O’ Connor and Healy, above n 12, 12. 16. Jan Macleod et al, ‘‘Challenging Men’s Demand for Prostitution in Scotland: A Research Report Based on Interviews with 110 Men Who Bought Women in Prostitution’ (Report, United Kingdom: Women’s Support Project), 5. 17. Ibid. 18. Gauthier, above n 5, 166. 19. Ibid 83. 20. Freeman, above n 8, 81. 21. Ibid 92. 22. Ibid 104. 23. Ibid 72. Freeman’s essay goes deeper into what most feminist think on the topic and the divergence between liberal feminists (proponents of liberal individualism) and radical feminists, and how they too have differing aspirations for the future or the sex industry. 24. Gauthier, above n 5, 182. 25. Ministry of Industry, Employment and Communications, Government of Sweden, Prostitution and trafficking in human beings (April 2005) Government Offices of Sweden, <http://www.regeringen.se/sb/d/2664>. 26. Ibid. 27. Judith Kilvington, Sophie Day, and Helen Ward, ‘Prostitution Policy in Europe: A Time of Change?’ (2001) 67 Feminist Review 78, 78. 28. Emily Denny, France’s newest import? Parliamentary Commission calls for “Swedish model” client criminalization (9 September 2011) Nordic Prostitution Policy Reform <http://nppr.se/2011/09/09/ france-newest-import-parliamentary-commission-calls-for-swedish-model-client-criminalisation>. 29. Kilvington, Day and Ward, above n 27, 83. 30. Ibid 85. 31. Ibid 89. 32. UNAIDS, Guidance Note on HIV and Sex Work (2012) 6. 33. Ibid. 34. Ibid. 35. Schulhofer, above n 1, 111. 36. Gauthier, above n 5, 168. 26

photo by justin mcintosh

‘A Nation should not be judged by how it treats its highest citizens, but its lowest ones’ - Nelson Mandela BY FARAH ABDEL

The impending death of Nelson Mandela has undoubtedly prompted the world to reminisce on his inspirational life achievements and I too have been influenced to do the same. I was reminded of Mandela’s role as an anti-apartheid revolutionary. It reminds me of my journey with family to Palestine as a 12 year old girl in 2007. Despite being a violation of international law, apartheid regulated South Africa from 1948 until 1994. The South African National Party led a system of racial segregation where the rights of the black inhabitants of South Africa were removed in order to preserve white supremacy. In his efforts to destroy this apartheid regime, Mandela announced that there is ‘no such thing as part freedom’ for ‘freedom would be meaningless without security in the home and in the streets.’ Mandela’s spoken truth resulted in his 27 years of imprisonment. The South African apartheid seems analogous to the modern Arab-Israeli conflict. Following the series of Arab-Israeli wars from 1947-1949, approximately 700,000 Palestinians fled the country or were expelled from their homes. This resulted in

the formation of the Israeli state, who then took control of the area recommended by the UN General Assembly Resolution 181 as well as control of 60% of Arab land allocated by the United Nations. Since then, Israel has forced a daily struggle and oppression onto the Palestinian people. It is difficult not to notice the likeness between the South African Apartheid regime and that of Israeli-occupied territories and I witnessed it.

stood among the many Palestinian Arabic men and women who made their four hour journey to work, only to be used as cheap labour. Some people would fight their way to the front of the gate in frustration. Others waited in silence, indicating how this routine has sadly become convention for some.

I witnessed a woman being refused entry into a town at a checkpoint because she was clearly of an Arabic heritage. I watched her suffer through emotions of despair, sadness In the summer of 2007, I embarked on a and anger as she missed her sister’s funeral, routine visit to the Middle East with my family, first to Syria to visit my mother’s family for which she travelled from Jordan, whilst the Israeli soldiers who refused her entry and then to Jordan, to visit my father’s. For the first time, since migrating from the Middle laughed and socialised among one another. East in 1999, my family and I visited Palestine. I saw dozens of army tanks and thousands of armed soldiers patrolling towns, scaring I knew the history, I heard the stories and children and monitoring set curfew times. watched the news, but nothing prepared me for events that I would experience, the I drove along the notorious ‘Wall’; a 700 things that I would witness and the emotions kilometre Israeli West Bank barrier which I would soon feel. What should have been separates the State of Israel from the a peaceful and secure journey (due to the Palestinian West Bank; a wall which separates Australian passport) was made tense and and exacerbates different cultures and difficult due to our obvious Arabic heritage. cultural tensions. On either side of the wall there is a stark contrast in infrastructure and I witnessed the Israelis control each place we living conditions. Thousands of armed Israeli visited. I saw the “Jewish-only” settlements, soldiers patrol the wall’s border and create the separate states, towns and roads for the further apprehension among the Palestinian dispersed Israeli and Palestinian citizens. I waited at several military checkpoints for hours people. Yet, the world does not appear to care. at a time to reach our destination, where I 28

photo by Kristian Berge

In hindsight, and from a contemporary Western perspective, it is truly shocking that apartheid was law and system for 46 years in South Africa. While the world became increasingly aware and opposed to this system in South Africa, the Palestinians suffered and continue to suffer in silence. Apartheid no longer exists for the South Africans. Apartheid however is still law for the Palestinians: 65 years and running. In 1973, the UN made Apartheid an international crime under the International Convention on the Suppression and Punishment of the Crime of Apartheid. International critics of the Israeli national and international policy make an analogy between Israel and South Africa and accuse Israel of committing the crime of apartheid. Opponents to this analogy claim that it is intended to deligitimise Israel and say their policy is enacted for security concerns in order to protect them from Palestinian terrorist organisations. I wonder how much longer Israel and the USA will be able to use security concerns as a means of justifying their own terrorism, not just on Palestine, but on nations worldwide. How much longer will our society be brainwashed to overlook the fact that Israel and its alliances possess superior weaponry, money, strength and the most powerful nations on their side and use the media to produce an apprehensive and mindless society? If they are at a “war on terror”, then they are at war with themselves.

‘We know too well that our freedom is incomplete without the freedom of the Palestinians.’ 29

– Nelson Mandela

TRANSSEXUALS AND THE LAW BY WILLIAM SHRUBB

Corbett, an English aristocrat who was Governor of Tasmania from 1959 to 1963. The respondent was April Ashley, a former model. Their marriage had broken up, and Ashley was seeking some share of Corbett’s property. Ormrod LJ was asked to determine if the marriage between the two parties was valid. It was, all in all, the standard kind of fodder for the society pages of the British tabloids. Except for one thing: April Ashley had been outed as a male-to-female transsexual ten years earlier.

I. A comparison between England and Australia ‘Male and female he created them,’1 wrote the author of the Book of Genesis. It is such an easy sexual dualism that touches so many aspects of our lives. When you walk into the UNSW Law building, seeking a bathroom, and are confronted with a choice – male or female – the same dualism is lurking. It is not a problem for most people. Sometimes, however, a person may have the physical characteristics of one sex, yet feel deeply that they are in fact a member of the other sex. This is known as transsexualism, or gender dysphoria. It is different from homosexuality. Women who have sex with women are still women; they have the physical characteristics of women, and identify as women. It is different from transvestism, or cross-dressing: men who dress as women still have the physical characteristics of men, and still identify as men. It is also different from being an intersex person, or a hermaphrodite. Transsexual people only have the physical characteristics of one sex. However, over twenty thousand Australians who experience transsexualism, feel like they are stuck with the wrong physical characteristics.2 Over the last four decades, the law has had to grapple with questions where

this previously simple sexual dualism has broken down. Courts have had to answer questions like: •

What criteria should be used to determine a person’s sex?

•

When should transsexual people be recognised as a member of a particular sex?

•

Under what circumstances should new birth certificates and identity documents be issued to transsexual people?

•

And crucially, who is a transsexual person allowed to marry?

Answering these questions has been difficult, and the results have often been tragic, but the general trend has been towards a greater understanding and tolerance of those people who do not fit so easily into our constructed sexual dualism.

II. The law in England: the restrictive biological test The first major case to deal with this issue was Corbett v Corbett (orse. Ashley).3 The applicant was Arthur Corbett, later Baron Rowallan, the cross-dressing son of Thomas

Born in Liverpool in 1935 as George Jamieson, April was raised as a boy, and joined the Merchant Navy at the age of fourteen. But despite being biologically male from birth, April felt trapped in the wrong body. After a deliberate drug overdose, and time in a psychiatric hospital, he moved to France, and became friendly with a troupe of female impersonators. He joined the troupe, began taking female hormones, and, in 1960, underwent surgery. His testes and scrotum were amputated, and a vagina was constructed from the inverted skin of his penis. No womb or ovaries could be constructed, nor could his chromosomes be altered. Only six months later, post-operative George, who adopted the name April Ashley, met Arthur Corbett for the first time. Arthur was aware at all times that April was a male-to-female transsexual. The pair fell in love, and married in 1963. In the meantime, Ashley had changed her name by deed poll, and had received a woman’s insurance card from the Ministry for National Insurance. All was not well in the relationship, however, and the pair separated not long after the marriage. The question for Ormrod LJ was whether Ashley was considered by English marriage law to be a man, and thus whether the marriage was void. First, His Honour considered the criteria by which a person’s sex might be determined. On the evidence of the medical experts before

him, His Honour listed four possible criteria: (i) chromosomal factors, (ii) gonadal factors (i.e., presence or absence of testes or ovaries), (iii) genital factors (including internal sex organs), and (iv) psychological factors.4 Secondly, His Honour found that physical characteristics of a person were, by reason of their chromosomes, ‘fixed at birth (at the latest), and cannot be changed, either by natural development of organs of the opposite sex, or by medical or surgical means.’ 5 Having found this, the question for His Honour became whether a person’s sex for the purposes of marriage ought to be determined by reference to physical characteristics as apparent at birth, psychological criteria, or some combination thereof. His Honour found that only physical characteristics as apparent at birth ought to be determinative in the case of marriage. Bearing in mind that Ashley was accepted as a woman for the purposes of national insurance, His Honour nevertheless found that marriage was a special kind of relationship, because ‘it is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element.’6 His Honour helpfully conceded that “[marriage] has, of course, many other characteristics, of which companionship and mutual support is an important one,”7 but maintained that ‘the characteristics which distinguish it from all other relationships can only be met by two persons of opposite sex.’8 Nor was Ashley’s operation or hormone treatment sufficient for Ormrod LJ. In a breathtakingly outspoken – some might say 32

boorish – judgment, His Honour claimed that ‘the pastiche of femininity’9 exhibited by Ashley had nearly fooled him, but under ‘closer and longer examination in the witness box…the voice, manner, gestures and attitudes became increasingly reminiscent of the accomplished female impersonator.’’10 Despite her operation and hormone treatment, Ashley was deemed not ‘naturally capable of performing the essential role of a woman in marriage’,11 whatever that might be, and the marriage was held to be void. For the purposes of marriage, a person’s sex was to be determined by the physical characteristics that they exhibited at birth, and no subsequent changes could affect that determination.

Later, in R v Tan,12 this restrictive biological test was extended to determining a person’s sex for the purposes of criminal liability too, in the interests of “certainty and consistency.”13 Ormrod LJ’s test, founded on the supposed special nature of marriage, came to be the sole test for determining a person’s sex across all fields of law in the United Kingdom. The publicly available register of births recorded a person’s sex at birth, based on the restrictive biological test, and changes were only possible if there had been a clerical error, a process that could cause grave embarrassment to a transsexual person if their birth sex became known to those around them.14 New birth certificates, required for passport applications, pension insurance, university enrolment and public service employment, were not issued to post-operative transsexuals, like April Ashley.15 It was a low point in the history of the common law.

III. The law in Australia: towards a broader test Corbett v Corbett was a marriage case, and the heightened tension around that institution arguably coloured the judgment of Ormrod LJ, leading English jurisprudence

liability, the court ought to have regard to ‘the relevant circumstances at the time of the behaviour.’19 Two conclusions followed from this: first, a person’s chromosomes down the path of the restrictive were never ‘relevant circumstances’; and biological test in the interests secondly, in sexual offences, the state of a person’s external genitalia ought to be of ‘certainty and consistency.’ In contrast, the first Australian case to deal with considered at the time of the alleged offence, regardless of whether ‘they were artificially the issue of determining a person’s sex was a created or were not the same as at birth.’20 criminal case. In R v Harris and McGuiness16 Consequently, the Court overturned Lee the New South Wales Court of Criminal Harris’ conviction on the grounds that, Appeal attempted to define a ‘male person’ as a post-operative transsexual, she was for the purposes of s 81A of the Crimes Act not a ‘male person’ for the purposes of s 1900 (NSW), which used to criminalise a 81A. Phillis McGuiness was not so lucky. male person attempting to procure an ‘act While accepting that psychological factors of indecency’ with another male person. Lee contributed to a person’s sexual identity,21 Harris was a post-operative male-to-female Mathews J regretfully rejected the argument transsexual, while Phillis McGuiness was a prethat “where a person’s gender identification operative male-to-female transsexual. They differs from his or her biological sex, the were both charged with offering to engage in former should in all cases prevail.”22 Preoral intercourse with two male undercover operative Phillis McGuiness remained a ‘male police officers in Darlinghurst. Both Street CJ person’ for the purposes of the Act. and Mathews J were anxious to point out that Corbett was not a binding authority on them, Harris has shaped the way transsexual people and in any event it was not a criminal case.17 have been treated by Australian law ever Although R v Tan was a criminal case, Mathews since. In Secretary of Department of Social J dealt it short shrift, saying it was just an Security v SRA,23 the Harris test was imported application of the rule in Corbett, and there from criminal law into social security law. In was ‘little, if any, independent consideration SRA, some kind of surgery was considered of the issues relating to transsexuals.’18 necessary in order for a transsexual person to be considered a member of their acquired In Harris, Her Honour (with whom Street CJ sex. Black CJ acknowledged that there were agreed) found that, in determining criminal problems with this, but held that ‘a line has

Despite her operation and hormone treatment, Ashley was deemed not ‘naturally capable of performing the essential role of a woman in marriage,’ whatever that might be ...

to be drawn somewhere.’24 Lockhart J also regretfully adopted this line, noting: A transsexual who genuinely regards himself or herself as having achieved the new sex must find life extremely difficult. Judicial opinions in this area of the law must be liberal and understanding, guided by the signposts of what is in the best interests of society and the transsexual. They do not conflict in the case of the post-operative transsexual, but in my opinion the conflict still exists in the case of the pre-operative transsexual.25 Secondly, the Court made clear, as in Harris, that it was not determining anything with regard to marriage.26 That bridge was finally crossed in Re Kevin.27 In that case, Chisholm J definitively demolished Ormrod LJ’s restrictive biological test. At the heart of Chisholm J’s judgment was the question of whether marriage was special in the sense that a different test from that in Harris and SRA ought to be adopted. His Honour considered two arguments for having a special test for marriage: ‘(i) that marriage is a social institution having its origins in ancient Christian law, and (ii) that it is intrinsically connected with procreation.’28

His Honour conclusively rejected both propositions. With regard to the first, His Honour said while he accepted its truth, nevertheless ‘ancient Christian law’ provided no guidance on how to determine a person’s sex for the purposes of marriage. With regard to the second proposition, His Honour also rejected the necessary connection between marriage and procreation, citing examples of infertile couples with valid marriages.29 Instead, His Honour found that ‘man’ and ‘woman’ ought to be given their ordinary contemporary meanings, and so the list of criteria to take into account when determining a person’s sex was not limited to physical criteria, even for the purposes of marriage.30 His Honour said: To determine a person’s sex for the purpose of the law of marriage, all relevant matters need to be considered. I do not seek to state a complete list, or suggest that any factors necessarily have more importance than others. However, the relevant matters include, in my opinion, the person’s biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person’s life experiences, including the sex in which he or she is brought up and the person’s attitude to it; the

person’s self-perception as a man or a woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and the person’s biological, psychological and physical characteristics at the time of the marriage.31 Chisholm J’s judgment was upheld by the Full Court of the Family Court of Australia.32

IV. The current state of the law The situation in the United Kingdom has finally changed as a result of several appeals to the European Court of Human Rights based on the European Convention on Human Rights.33 In 2004 the UK Parliament passed the Gender Recognition Act. Under the Act, transsexual people can apply to a Gender Recognition Panel for a Gender Recognition Certificate.34 They must provide evidence they that have been diagnosed with gender dysphoria, have been living in their acquired sex for two years or more, and intend to continue living in that sex until death.35 Evidence of surgery is not required. If satisfied, the Panel can then

issue a Gender Recognition Certificate, with which the applicant can get a new birth certificate, which can be used in all the ways discussed above. As a result, transsexuals in the United Kingdom can finally be accepted as members of the sex to which they always felt they belonged. Yet it is worth comparing Australian law’s tolerance and understanding with the narrow-mindedness of Corbett, and noting that human rights legislation is not always necessary for the law to protect all who come before it from injustice. Unlike the European Court of Human Rights, the NSW Court of Criminal Appeal did not base its objections to Corbett on human rights legislation, nor did the Family Court of Australia. To its credit, the common law in Australia has largely managed to recognise and protect the rights of transsexual people even without human rights legislation. As Street CJ said back in 1988, ‘the time has finally come when the beacon of Corbett will have to give place to more modern navigational guides to voyages on the seas of problems thrown up by human sexuality.’36

[ His Honour said ] ‘ancient Christian law’ provided no

guidance on how to determine a person’s sex for the

To its credit, the common law in Australia has

purposes of marriage. [...] His Honour also rejected

largely managed to recognise and protect the

the necessary connection between marriage and

rights of transsexual people even without

procreation, citing examples of infertile couples

human rights legislation.

with valid marriages.

References 1. Genesis 1:27, New King James Bible. 2. Rachael Wallbank, Young People with Transsexualism: the Contemporary Australian Experience (February 2010) True Colours, <http://www.truecolours.org.au/publications/ypwts.html> 3. Corbett v Corbett (orse. Ashley) [1971] 2 All ER 83. 4. Ibid 100. 5. Ibid 104. 6. Ibid 105. 7. Ibid. 8. Ibid 106. 9. Ibid 104. 10. Ibid. 11. Ibid 106. 12. R v Tan [1983] QB 1053. 13. Ibid 1064. 14. Cossey v United Kingdom (1990) 13 EHRR 622 per Martens J, 7. 15. Ibid. 16. R v Harris and McGuiness (1988) 17 NSWLR 158. 17. See R v Harris and McGuiness (1988) 17 NSWLR 158, 161 (Street CJ); 188 (Matthews J). 18. Ibid 189. 19. Ibid 192. 20. Ibid. 21. Ibid 191. 22. Ibid 193. 23. Secretary of Department of Social Security v SRA (1993) 43 FCR 299. 24. Ibid 306. 25. Ibid 327. 26. See, eg, Secretary of Department of Social Security v SRA (1993) 43 FCR 299, 306 (Black CJ); 327 (Lockhart J). 27. Re Kevin [2001] FamCA 1074. 28. Ibid [282]. 29. Ibid [285]. 30. Ibid [328]. 31. Ibid [329]. 32. Attorney-General (Cth) v “Kevin and Jennifer” [2003] FamCA 94. 33. See, for eg, Cossey v United Kingdom (1990) 13 EHRR 622; Goodwin v United Kingdom (2002) 35 EHRR 18. 34. Gender Recognition Act 2004 (UK) c 7, s 1(1). 35. Gender Recognition Act 2004 (UK) c 7, s 2(1). 36. R v Harris and McGuiness (1988) 17 NSWLR 158, 161.

Federal Courts Fees Up Access to Justice Down BY MICHAEL LEGG*

Access to justice has been expressed as a human right, with justice being equated with ‘a fair and public hearing by a competent, independent and impartial tribunal established by law’.1 An important challenge is ensuring that access to justice is a reality and not just an aspiration. The main obstacle to access to justice in 2013 is cost. What then should we make of a government that steeply increases the costs of resorting to the federal courts for average citizens while at the same time pushing citizens towards alternative dispute resolution (ADR) processes, such as mediation? A subtle shift is underway in Australia. It was first signalled by the 2009 AttorneyGeneral’s Access to Justice Taskforce, which sought to broaden what access to justice means.2 More recently, the former Attorney-General for Australia at the time of the fee increases stated:3

“Access to justice extends beyond the courts. It incorporates everything we do to try to resolve the disputes we encounter – from the little things, such as using information found on the internet, calling a helpline or asking for help from a friend or family member, through to the big things, like filing an application in a court. … Court fees have the capacity to send pricing signals to people that the courts should not be the first port of call for resolving disputes and to encourage them to use ADR processes where appropriate”. This shift coincides with significantly increased court fees in federal jurisdictions: the Federal Court, the Family Court and the Federal Circuit Court (formerly the Federal Magistrates Court).4 This means the vast range of matters these courts deal with – from divorce, family law and child support to 38

bankruptcy, administrative law, human rights, privacy, consumer matters and copyright – are becoming more expensive for the hundreds of thousands of Australians who use the federal courts every year. While fees vary across the federal courts and some fee reductions or waivers are available to low income earners, the cost of commencing proceedings in the Federal Court was, for example, increased to $938 from July 2012 and increased again to $1080 from January 2013, while setting a matter down for hearing was increased to $1875 and then to $2155.

For the fundamental right of access to justice to be upheld disputants should be able to make a genuine choice about whether ADR or the courts better meet their needs.

The January 2013 fee increases were a 15% increase on prevailing fees for individuals. The fee increases also included a 40% increase on prevailing fees for corporations and established a new category of fees for listed corporations that was 150% of the fee for a corporation.5 The January 2013 court fee increases are forecast to allow the Federal Government to raise $76.9 million in new revenue over the next four years.

the board regardless of whether ADR is appropriate for the particular dispute. The decision of the individual may also have more far-reaching social ramifications “[b]asic civil liberties have been won and secured by people who sometimes stand up for their rights and assert them”.8 The respect for the rule of law, protection of rights and promulgation of precedents will all be harmed if the courts cannot be meaningfully accessed. Government must be conscious of this connection between the decision of the individual disputant and the larger public policy concerns.

Individual disputants will weigh the need for litigation with other concerns such as its expense. When the new court fees, individually and cumulatively, are compared with the full-time adult average weekly total earnings in Australia of about $1500,6 it is clear that court fees would be a substantial expenditure for the average Australian. When combined with the other costs associated with litigation it is difficult to disagree with former Chief Justice Doyle of the Supreme Court of South Australia who has observed that ‘the average person can’t afford to get involved in substantial civil litigation, even a fairly well-off person’.7 Court fees are not the only cost in seeking access to justice, but the higher they are the greater the burden imposed on individuals. This may mean that an individual who otherwise needs access to the court system but cannot afford it has no choice but to turn away. The increased fees apply across

The realpolitik is that the Federal Government is redefining access to justice to include a host of activities other than the provision of publicly-funded courts as well as legitimising the use of higher fees to deter citizens from using the courts. The mantra of access to justice is invoked here to obscure the government’s self-imposed fiscal constraints. Encouraging resilience, self-reliance, and educating people about how to resolve disputes amongst themselves or with the help of a third party are worthy goals. Broadening the range of dispute resolution options and encouraging their use may allow for compromises that better satisfy all disputants’ interests compared to going to court. Relationships may be preserved and creative solutions adopted. Disputants and lawyers

should be thinking hard about what dispute resolution method promises to best achieve their aims. But ADR, let alone phone calls and internet searches, cannot be equated with access to justice. With ADR, unlike a court, the dispute is not necessarily decided according to law. It may be, but that is not known because ADR is usually conducted in secret. Other interested parties, including the media, are not able to be present. The procedural protections mandated by and for courts do not necessarily apply.

Under the current approach the government is running the risk of creating a two-tiered system of justice; with the “haves”, mainly corporations and governments, able to afford litigation if they can’t achieve their aims through mediation and the “have nots”, the rest of us, forced to accept whatever ADR offers because we cannot afford to litigate. Moreover, removing the ability to resort to the Courts for one side of a dispute can then infect the equality of the parties’ bargaining positions when undertaking ADR.

For the fundamental right of access to justice to be upheld disputants should be able to make a genuine choice about whether ADR or the courts better meet their needs.

Raising the financial bar to accessing the courts, which provide the fair and public hearing that is a human right, undermines access to justice.

Enabling disputing parties to make that choice means ensuring they are aware of the relative advantages and disadvantages of various forms of ADR as well as litigation. The civil justice system performs an important role in underwriting our civil rights, accordingly there will be times when litigation is a necessity. Educating citizens and training lawyers about the various methods available for resolving disputes is the way in which ADR and the courts can be used most effectively.

* Associate Professor, Faculty of Law, University of New South Wales. The content of the article was also the subject of the author’s submission and testimony to the Senate Legal and Constitutional Affairs Committee Inquiry on “Impact of federal court fee increases since 2010 on access to justice in Australia”.

REFERENCES 1. See International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 99 UNTS 171 (entered into force 23 March 1976) art 14. See also Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc A/810 at 71 (1948) art 8. 2. Access to Justice Taskforce, Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System, September 2009, p 3–4. 3. Former Attorney-General for Australia, The Hon Nicola Roxon MP, Launch of Your Guide to Dispute Resolution, Canberra, 23 July 2012. See also Attorney-General for Australia, Mark Dreyfus QC MP, Defending Justice in Modern Australia: A fair go under the law, John Curtin Institute of Public Policy, Perth, 20 May 2013. 4. Federal Court and Federal Magistrates Court Regulation 2012 (Cth) and Family Law (Fees) Regulation 2012 (Cth). 5. Explanatory Statement Select Legislative Instrument 2012 No 280 p2. 6. Australian Bureau of Statistics, 6302.0 - Average Weekly Earnings, Australia, Nov 2012. 7. Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008) 434. 8. The Hon Michael Kirby, ‘Mediation: Current Controversies and Future Directions’ (August 1992) Australian Dispute Resolution Journal 139, 146. 40

PHOTO BY Thomas Smillie

The power of the US remains key to understanding Western influence over international law. American exceptionalism, as Nabers and Patman write, is the belief in ‘the uniqueness of [America’s] founding liberal principles...and the conviction that the US has a special destiny among nations’.2 Thus the aim of the US becomes ‘[transforming] an anarchic, conflict prone world into an open, international community under the rule of law’.3 Through maintaining influence over international law, the US can shape this system around Western values, even without direct involvement. This is

Over the past two decades, rhetoric of humanitarian

Race and Rivalry: Neoimperialism, intervention and the civilising mission post-1991 BY JOSH BEALE The Western world have long insisted on the morality of liberal democratic capitalism as the model to be emulated. We speak of democratisation, liberalisation, secularisation of states at a time when rivalries are pushing America to show that it remains the sole global power. Over the past two decades, rhetoric of humanitarian intervention, the responsibility to protect and anticipatory self-defence have been used to justify military intervention in sovereign states. The construction of the ‘invadee’ as uncivilised, primitive, and undemocratic compared with the morality and freedom-bringing invader has had a significant impact on international law. These interventions are linked with neoimperialism, as the West enforces its views upon those unable to effectively resist.

Rather than examining the formation of the UN and its institutions, this paper will discuss the more recent interventions in Kosovo and Libya, and the invasions of Afghanistan, Iraq, and Georgia, arguing that they are examples of neoimperialism. In particular, the rhetoric of the ‘Long War’1 on terror is influenced by this doctrine, as seemingly incompatible liberalism and conflict converge with neorealism to form the neoconservative foreign policy of the Bush and Obama administrations. America and exceptionalism remain crucial to examine in light of the ‘war on terror’, as does the continued Manichean construction of the East/West into good and evil, heavily influenced by American Christian and liberal rhetoric.

intervention, the responsibility to protect and anticipatory selfdefence have been used to justify military intervention in sovereign states. the institutional power that Barnett and Duvall outline; America can ‘establish global institutions that...further American interest and spread American values’.4 Thus Western power becomes not just compulsory power, the ‘use [of] coercion and intimidation...to develop and sustain [Western] supremacy’,5 but extends to ‘guidance, and steering’.6 This is evident through the institution of justified intervention, the subject of this paper. From a theoretical perspective however, it is difficult to reconcile this Western ideology constructed as peaceful, liberal internationalism with the number of conflicts conducted in the name of liberalism. Reid claims instead that liberalism has failed ‘to realise its pacific ends’.7 Indeed, the post-

9/11 era has become one of ‘active, muscular liberalism’ in the words of British Prime Minister Cameron,8 whereby liberal rhetoric of freedom is used in a way that entails enforcing freedom. Thus this Western concept of liberalism maintains a heavy sway over the direction of international law. Reid goes on to argue that liberalism is based around the premise of spreading peace by spreading democracy and market capitalism.9 Similarly, Hartmann writes that new global economic regulations are ‘disciplinary neoliberalism’ – forcing states to act according to Western free market principles rather than protectionist ones.10 In the area of intervention, international law based on liberalism simply allows for the West to intervene in order to maintain their power. Knox argues that the ‘dominant’ position on intervention argues the ‘desirability of spreading democracy and human rights through war’.11. Thus liberalism becomes linked with Eurocentric modernity, recognising the primacy of democracy and inferiority of non-Western regimes. Reid argues that liberalism is thus used to attack rivals pursuing different political projects,12 a Marxist critique which can be applied to attempts to secularise the Muslim world, discussed below. The links between liberalism and modernity can be regarded as closely linked to neoimperialism, barely masked by the Western concept of the humanitarian intervention or the ‘responsibility to protect’. US National Security Advisor (later Secretary of State) Rice stated in 2004 that America ‘is taking the side of the millions of people in the Muslim world who long for freedom, who cherish learning and progress 42

the ‘dominant’ position on intervention argues the ‘desirability of pursuit of justice in Western terms, those who fight for counter-hegemonic, transnational justice are excluded, while the West is ‘[shielded] from critical scrutiny’.17 Thus humanitarian intervention is a Western construct used as a means of actively promoting liberalism. and who seek economic opportunity’,13 going on to state that ‘we need to get the truth of our values and our policies to the people of the Middle East’.14 This muscular liberalism thus entails intervention when a nation is not following a Western notion of governance. Beres, a supporter of these interventions, writes that ‘the concept of the civilised nation continues to make legal and geopolitical sense in the present world order’,15 highlighting this neoconservative foreign policy which treats some nations as more civilised than others. Indeed, this Eurocentric neoimperialism relies on a stark distinction between modern and primitive nations – 16 justifying spreading democracy and peace to those nations who do not possess it. Through framing the

The construction of the ‘invadee’ as uncivilised, primitive, and undemocratic compared with the morality and freedom-bringing invader has had a significant impact 43

on international law.

Drawing on an example of humanitarian intervention – the 1998 NATO-spearheaded intervention in Kosovo – the nature of this doctrine becomes clear. Glennon writes that the US and NATO abandoned the ‘old rules’ of the United Nations Charter that prevented the use of force18 and instead moved toward a system ‘much more tolerant of military intervention but [with] few hard and fast rules’.19 While Glennon goes on to argue that ‘little will be lost in the attempt to forge a new system of rules’,20 it can be noted that the West was simply able to disregard the Charter and pursue its own aims. While Cohen argues that this may be due to the ‘absence of obvious or agreed upon mechanisms of resolving...disputes’,21 if the West can challenge the very base of international law like this, then international law is certainly subject to Western interpretation of these mechanisms. As Knox writes, states were no longer the ‘possessor of unparalleled sovereign rights’ – where a state failed its obligations, it was ‘necessary for the international community to intervene’.22 The West then becomes the judge of this failure of obligations, as was seen when it was decided that the situation in Kosovo formed a threat, requiring a response from the ‘guardians of the system, acting outside...

spreading democracy and human rights through war’ normal channels’23 but nevertheless able to intervene with its liberal values of peace. Thirteen years after Kosovo, the Libyan intervention marked another significant development in Western justification for the use of military force. Defined in 2005, the responsibility to protect placed the primary responsibility of protecting civilians from ICC-level crimes on the nation-state, but the international community could intervene should the state be ‘unwilling or unable to fulfil this responsibility’ – 24 thus ceding the sovereignty of ‘uncivilised’ states to the more civilised West. Security Council Resolution 1973 permitted the use of all necessary measures (i.e. force) ‘to protect civilians and civilians populations under threat of attack’.25 This resolution passed the Security Council despite Russia and China’s general contempt towards Western intervention, perhaps due to the strictly limited mandate that the resolution contained. Yet, Obama, Sarkozy and Cameron stated that ‘it is impossible to imagine a future for Libya with Qaddafi in power’.26 Thus a mandate protecting civilians was interpreted by the West as allowing for regime change, on the grounds that ‘regime change would protect civilians’.27 The eventual downfall of Qaddafi was substantially attributable to NATO support for rebel offensives, again showing that the West retains power over international law as a means of spreading democracy and toppling dictators.

In contrast to Kosovo and Libya, the intervenor in the 2008 intervention in Georgia was Russia, who claimed grounds of humanitarian intervention. As Knox believes, this intervention was evidence of the ‘severely weakened’ position of the US; humanitarian intervention did not occur with the consent of the US but instead was committed by one of its rivals.28 Thus it could be theorised that the West is beginning to lose control over international law, following the economic weakening of the 2008 global financial crisis, the rise in military power of America’s rivals, and the decline in political support for continuing Western interventions. However, while the US criticised Russia for its intervention, it was essentially treated as a minor issue rather than one requiring a mass international response. Indeed, perhaps the lack of significant US strategic interest in Georgia, or the unwillingness to intervene militarily with what Russia deemed a domestic issue, meant that the US did not take substantial action. Thus Knox’s claim of dying US power is not made apparent, especially when the Libyan intervention is examined. Instead, there are greater grounds for arguing that US rivals are challenging the dominance of the West in international law. These three interventions were based on humanitarian grounds. However, the link between intervening to help victims of primitive regimes is closely linked to the racialisation of Muslims throughout the war on terror. The

‘exaggerated form of liberalism...associated with the Bush doctrine’29 has been used to create a Manichean construction of the world into good and evil – white and Muslim. International law has been used as both ‘an attempt to justify [as] legal’30 interventions in Afghanistan and Iraq, and as a means of ensuring the Western democratic model remains at the heart of international law. This insistence on Western values suggests that international law is a construct which allows realisation of Western political goals. Nazir’s description of the world as ‘a power domain comprised of nation states with vastly differing degrees of power and levels of control over their sovereignty’31 can thus be applied to this neoimperial split into West and Islamic, with the Islam world as incompatible with the West. Building on this racialisation of Islam as too different from Western morality, it is important to examine the relationship between Christianity and liberalism and the impact it has had on the construction of international law, especially following 9/11. Nabers and Patman examine this relationship in detail, arguing that the ‘fusion of evangelism and foreign policy activism’32 has led to America adopting political fundamentalism. They believe that there is a strong connection between the Manichean construction of the war on terror – which Bush characterised as ‘a long struggle between good and evil’33 and Christian fundamentalism. Rojecki echoes these sentiments; ‘no other nation would have been hopeful enough to try to evangelise for democracy across the Middle East’.34 These fundamental Christian values are linked to foreign policy in a way that further promotes the liberal spreading of freedom through violence. Western Christian values, especially those of the US, thus play a major role within shaping the norms of international law.

The invasion of Afghanistan in 2001 following the terrorist attacks on September 11 displays a link between the neoimperialism discussed above and international law as a Western concept, maintaining Western power. The construction of Taliban-led Afghanistan as an ‘ongoing threat’ to security35 displays the ease by which the US constructed the state of Afghanistan as a threat requiring a military response, suggesting that the indeterminacy of international law36 allowed for the West to construct a solution fulfilling their policy goals. Subsequently, the 2003 invasion of Iraq by America’s ‘coalition of the willing’ was carried out in pursuit of the war on terror, but without direct approval from the UN. Despite protests, and the threat that the coalition’s intervention would be challenged,37 the US-led West continued the intervention, as it deemed it necessary to fight terrorism on every front. The shaping of the world as Manichean by Bush – ‘either you are with us, or you are with the terrorists’38 – makes these links between modernity and liberalism clear. The notion that force is limited by Article 2(4) of the UN Charter is seemingly superseded by the desire of the West to employ ‘the strategic use of violence [to] spread freedom, progress and peace’39 by extending and

The construction of Taliban-led Afghanistan as an ‘ongoing threat’ to security displays the ease by which the US constructed the state of Afghanistan as a threat requiring a military response

reinterpreting international law. Iraq and Afghanistan represent attempts by the US to enforce regime change and create secular, democratic states in the heart of Muslim world in the place of states which posed a threat to Western power. The war on terror has now diversified from the offensives outlined above to a campaign of targeted assassinations by American drones. Beres, supporting these tactics, writes that ‘under international law, the legitimacy of a certain cause can never legitimise the use of certain forms of violence’.40 He points

well-intentioned moral exemplar’.44 Yet international law continues to turn against Muslims, not the West; Guantánamo Bay remains an anomaly of international law created by America and Obama’s drone assassinations are increasing. Thus Chomsky’s view that we must apply the same standards to ourselves as we do to others45 becomes the paradox within international law; the West as freedom-bringers and the East as freedom-haters, while both employ violence. The West remains at the political forefront of the international community. It retains

Chomsky’s view that we must apply the same standards to ourselves as we do to others becomes the paradox within international law;

the West as freedom-bringers and the East as Freedom-haters, while both employ violence. to the indiscriminate murder of civilians by Islamist terrorist groups as indicating that America’s ‘civilisational enemies’41 are primitive, fitting the terms of the discussion on Eurocentric modernity and New Oriental primitivity outlined above. Yet he supports drone strikes from a utilitarian perspective: ‘assassination as counter-terrorism is reasonable [because] fewer lives [are] lost’ –42 ignoring the number of civilian deaths caused by such tactics. Indeed, Nabers and Patman argue that there is a risk of America’s ‘political fundamentalism [replicating] the norms of Islamic terrorism’.43 As Rojecki writes, ‘photos [of tortured Iraqi prisoners] were incompatible with an image of the United States as a somewhat naïve but nevertheless

undeniable influence over the direction of international law. I have argued that through interventions, including those during the war on terror, international law has been used to maintain Western power. However, China’s rising economic dominance, and the power China and Russia retain on the Security Council poses threats to Western power. As was seen in the Iraq intervention, the US did not return to the Council to seek explicit authorisation but instead took law into its own hands. Despite this, the influence that the West retains over international law is significant, in that freedom and democracy are seen as necessary international values.

Bibliography 1. Stilwell, F, Jordan, K, & Pearce, A 2008, ‘Crises, interventions and profits: a political economic perspective’, Global Change, Peace & Security (formerly Pacifica Review: Peace, Security and Global Change), vol. 20, no. 3, pp. 263-274 2. Powell, E J 2013, ‘Islamic Law States and the International Court of Justice’, Journal of Peace Research, vol. 50, no. 2, pp. 203-217 3. Adamson, F 2006, ‘Crossing Borders: International Migration and National Security’, International Security, vol. 31, no. 1 (Summer), pp. 165-199 4. Chaudhuri, A 2012, ‘Multiculturalism, minoritization and the War on Terror: The politicization of Hinduism in North America’, Journal of Postcolonial Writing, vol. 48, no. 3, pp. 252-264 5. Connolly, J, & Falkoff, M 2011, ‘Habeas, International Asymmetries, and the War on Terror’, Seton Hall Law Review, vol. 41, pp. 1361-1396 6. Conversi, D 2008, ‘’We are all equals!’ Militarism, homogenization and ‘egalitarianism’ in nationalist state-building (1789-1945)’, Ethnic and Racial Studies, vol. 31, no. 7, pp. 1286-1314 7. Giroux, H 2004, ‘War on Terror: The Militarising of Public Space and Culture in the United States’, Third Text, vol. 18, no. 4, pp. 211-221 8. Guru, S 2012, ‘Under Siege: Families of Counter-Terrorism’, British Journal of Social Work, vol. 42, pp. 1151-1173 9. Kidane, W 2009-2010, ‘The Terrorism Bar to Asylum in Australia, Canada, the United Kingdom, and the United States: Transporting Best Practices’, Fordham International Law Journal, vol. 33, pp. 300-371 10. Lentin, A 2012, ‘Post-race, post politics: the paradoxical rise of culture after multiculturalism’, Ethnic and Racial Studies, DOI:10.1080/01419870.2012.664278 11. Moran, A 2011, ‘Multiculturalism as nation-building in Australia: Inclusive national identity and the embrace of diversity’, Ethnic and Racial Studies, vol. 34, no. 12, pp. 2153-2172 12. Schulman, S 2009-2010, ‘Victimized Twice: Asylum Seekers and the Material Support Bar’, Catholic University Law Review, vol. 59, pp. 949-964 13. Shome, R 2012, ‘Mapping the Limits of Multiculturalism in the Context of Globalization’, International Journal of Communication, vol. 6, pp. 144-165 14. Walsh, J 2012, ‘The marketisation of multiculturalism: neoliberal restructuring and cultural difference in Australia’, Ethnic and Racial Studies, DOI:10.1080/01419870.2012.720693

REFERENCES 1. Tariq Amin-Khan, ‘New Orientalism, Securitisation and the Western Media’s Incendiary Racism’ (2012) 33(9) Third World Quarterly 1595, 1596. 2. Dirk Nabers & Robert G. Patman, ‘September 11 and the rise of political fundamentalism in the Bush administration: domestic legitimization versus international estrangement?’ (2008) 20(2) Global Change, Peace & Security 169, 170. 3. Ibid 171. 4. Michael Barnett & Raymond Duvall, ‘Power in International Politics’ (2005) 59 International Organization 39, 63. 5. Ibid 62. 6. Ibid 57. 7. Julian Reid, ‘War, Liberalism, and Modernity: The Biopolitical Provocations of ‘Empire’’ (2004) 17(1) Cambridge Review of International Affairs 63, 63. 8. Mehdi Hasan, ‘More telling than the PM’s cynical speech was Labour’s response to it’ New Statesman (London), 14 February 2011, 16. 9. Reid, above n 7, 66. 10. Eva Hartmann, ‘The Difficult Relation between International Law and Politics: The Legal Turn from a Critical IPE Perspective’ (2011) 16(5) New Political Economy 561, 564. 11. Robert Knox, ‘Civilizing interventions? Race, war and international law’ (2013) 26(1) Cambridge Review of International Affairs 111, 112.

12. Reid, above n 7, 68. 13. Condoleezza Rice, ‘War on Terror: Truth is needed for freedom of defence’ (2004) 70(22) Vital Speeches of the Day 674, 676. 14. Ibid. 15. Louis René Beres, ‘After Osama bin Laden: Assassination, Terrorism, War, and International Law’ (2011) 44(1) Case Western Reserve Journal of International Law 93, 132. 16. See Knox, above n 11, 112. 17. Nancy Fraser, ‘Who Counts? Dilemmas of Justice in a Postwestphalian World’ (2009) 41(S1) Antipode 281, 289. 18. See Charter of the United Nations art 2(4). 19. Michael J. Glennon, ‘The New Interventionism: The Search for a Just International Law’ (1999) 78(3) Foreign Affairs 2, 2. 20. Ibid 3. 21. Harlan Grant Cohen, ‘Finding International Law, Part II: Our Fragmenting Legal Community’ (2012) 44(4) New York University Journal of International Law and Politics 1049, 1050. 22. Knox, above n 11, 119. 23. Ibid 124. 24. Geir Ulfstein & Hege Føsund Christiansen, ‘The legality of the NATO bombing in Libya’ (2013) 62(1) International and Comparative Law Quarterly 159, 161. 25. Cited in Ulfstein, above n 24, 161. 26. Cited in Ulfstein, above n 24, 165-6. 27. Ulfstein, above n 24, 168. 28. Knox, above n 11, 127. 29. Corinna Mullin, ‘The US discourse on political Islam: is Obama’s a truly post-’war on terror’ administration?’ (2011) 4(2) Critical Studies on Terrorism 263, 264. 30. Knox, above n 11, 112. 31. Pervaiz Nazir, ‘War on terror in Pakistan and Afghanistan: discursive and political contestations’ (2010) 3(1) Critical Studies on Terrorism 63, 64. 32. Nabers, above n 2, 169. 33. See Nabers, above n 2, 175. 34. David Brooks, ‘In Iraq, America’s shakeout moment’ New York Times (New York), May 18 2004, A23, cited in Andrew Rojecki, ‘Rhetorical Alchemy: American Exceptionalism and the War on Terror’ (2008) 25(1) Political Communication 67, 67. 35. Michael Byers, ‘Terrorism, the use of force and international law after 11 September’ (2002) 51(2) International and Comparative Law Quarterly 401, 408. 36. See, for eg, Susan Scott, International Law in World Politics (Lynne Reiner Publishers, 2nd ed, 2010) 122. 37. See especially Advice re. Iraq Resolution 1441 from Baron Peter Goldsmith to Prime Minister David Cameron, 7 March 2003, 13. 38. Cited in Nazir, above n 31, 70. 39. Nazir, above n 31, 65. 40. Beres, above n 15, 119. 41. Ibid 130. 42. Ibid 98. 43. Nabers, above n 2, 182. 44. Andrew Rojecki, ‘Rhetorical Alchemy: American Exceptionalism and the War on Terror’ (2008) 51(2) Political Communication 67, 67. 45. Cited in Mullin, above n 29, 273.

The Faceless ‘Boat People’ BY BRITTNEY RIGBY What kind of person are you? A ‘people person’, a ‘sports person’, a ‘black person’, a ‘gay person’? Our individual attributes, whether they be physical, emotional or intellectual, which often reflect only minor parts of our lives, serve as the fuel for generalisation and categorisation. No longer are we a unique person who merely happens to be ‘white’, but instead we have become somebody stripped of individuality and classified under a homogenous group of ‘white people’. Whilst these labels dehumanise and desensitise, we perceive such labels as ‘normal’. Rarely can a female wear a short skirt without being called a ‘slut’ and a male wear pink and take pride in his appearance without people assuming he is ‘gay’. The ‘individual’ ceases to exist and in their place emerges a uniform assembly of faceless persons. Sadly, the ‘boat people’ construct reflects this trend in labelling. Media outlets rarely provide a glimpse into the lives of individuals seeking asylum. News stories are presented to us, often unwittingly, in the form of selected video footage for the purpose of a ‘better story’ or to champion a specific political party’s ideals. Seldom are the plights of real people conveyed – and if they are, all we see is a glimpse. We never hear a news report about a little girl who

has arrived in Australia because her parents want her safe from the tragedy of conflict. We never see a news story explaining that fellow humans have exercised their right to asylum and have migrated to a country in the false belief that it will provide a safe haven; a new home. Instead, we are exposed only to the ‘boat people crisis’ the media forces down our throats. A ‘crisis’ far removed from the realities of the war-torn countries ravaged by torture, terror and death that the asylum seekers were (through no fault of their own) living in and desperately trying to escape. In our Australian society we unjustifiably exploit the tragedy suffered by those who journey to this country on boats. It is only from within the polished walls of Parliament and safe confines of our respective homes where we have the audacity to condemn the ‘boat people’ to lives of misery. We are compressed by social conditions that amplify differences and generate a fear of the unknown. How can we amend the asylum seeker issue and change the discourse surrounding it when governments are indifferent towards human life because they are more concerned with their reelection than the rights of humans to have life and liberty?

We need to communicate to our politicians what we want. We want Australia to support human rights. We want our politicians to abide by international law and human rights standards. We want an effective and humane way of processing these desperate people who want to live peacefully and often wish to work to contribute to the Australian economy; to humanely process those who do not deserve to be treated in a sub-human way in detention centres. We want to say no to offshore processing where children are imprisoned, families suffer and men would rather attempt suicide than live another moment in a place they thought would be safe and different from the country they fled. We need to think about how desperate these people must have been to board a boat with their children, often without ever previously sailing, in the hope of a better life. We want to rid asylum seekers of the stigma of being identified as ‘boat people’. We do not want them to remain faceless. We persecute asylum seekers, simply because they are seeking their right to asylum. It is never their fault for being born into a country of atrocity. What would you do and hope for if you were in their position? 7,500 innocent people are currently imprisoned in Australian detention centres. Over 1,200 of these are children whose detainment can last months or even years. The fates of these ‘boat people’ are decided by our democratically-elected leaders; leaders who do not know each individual story; leaders who treat all of the individual asylum seekers as one homogenous ‘boat people’ category. Our Prime Minister should be visiting the people detained, both on the Australian mainland and offshore. Our politicians should be less concerned with political power and more concerned with human rights. Our current handling of asylum seekers and ‘solutions’ to the ‘problem’ are unjust and circular. It is up to us to push for effective reform. It is up to us to strive for justice.

We need to change the stigma attached to ‘boat people’; a label only exacerbating political propaganda and unwarranted fear.

The plight of asylum seekers deserves open discussion in our homes, our workplaces, amongst friends, family and colleagues. It has to become an issue we are all actively engaged in, rather than passively exposed to through mediums that only publish the limited information the government purposefully feeds us. Media are currently banned from entering detention centres on Manus Island and Nauru. How can we expect to be informed of the realities of these offshore processing centres when our government restricts access to reporters and subsequently the public at large? We deserve to know what is happening and how refugees are being treated. We ought to be reminded of the humanity of these people the media has made faceless. In essence, our awareness has been imprisoned by our government. We have had a tall wall built around us; a wall of sturdy and cold sheath which strengthens with time. A wall which keeps separate the relational being

of those outside the wall- those who have sought asylum- from the awareness of those Australian citizens inside the wall. This wall has obstructed our view from the realities of the so-called ‘boat people’; a wall only conquerable by those passionate enough to climb it. It is only after climbing this wall when we can empathise with asylum seekers and become vessels for change. We need to change. We need to change how we think about asylum seekers. We need to change Australia’s political views about asylum seekers. We need to change the stigma attached to ‘boat people’; a label only exacerbating political propaganda and unwarranted fear. Offshore processing has dehumanised and criminalised these innocent people who are only trying to protect their families. Asylum seekers are not toys, but human beings entitled to freedom. Seeking asylum is not illegal. ‘Boat people’ are human.

Sub-ordination – 21 years later BY COLIN FONG* In 1992, Julia Baird1 and I wrote an article titled ‘Sub-ordination’,2 which outlined the background to the struggle in enabling women to be priested in the Anglican Church in Australia.

Since then about a quarter of all Australian Anglican priests are female. In one sense a wag could suggest: “You’ve come a long way, baby!” From the middle of 2013, there are now four female Australian Anglican bishops.3

Unfortunately and ironically, there are no practising female Anglican priests in the dioceses of Sydney, Ballarat, The Murray and North West Australia. Many capable Sydney women have left Sydney and gone to be priested elsewhere in Australia.4 Some people have become disenchanted with the church on this subject, they have left the church completely. 52

One Anglican male priest once suggested that to ordain a female was akin to ordaining a meat pie.5 The irony hinted at earlier is poignant since a lot of lobbying from the Movement for the Ordination of Women (MOW) originated in Sydney and one of its founders was Dr Patricia Brennan, died on 6 March 2011.6 Last year, a book was published outlining the history and struggle for Anglican women’s ministry and dedicated to Brennan.7 In November 2013, MOW held a conference to celebrate the 20th anniversary of the 1992 priesting of Anglican women in Australia.8 Unfortunately during the conference we heard the English synod rejected the proposal for female bishops, by the narrowest of votes.9 If you believe you have gifts, but cannot exercise them, how would you feel? The scriptures already suggest that individuals should utilise the gifts we are given.10 However the ability of being a priest has resistance within some parts of the Australian Anglican Church. Our prime minister, Julia Gillard scored enormous kudos by labelling the leader of the Opposition, Tony Abbott, a misogynist.11 I would like to suggest perhaps this label might be appropriate to parts of the Sydney Anglican Diocese. I receive an unsolicited publication of Moore College, the Anglican college for training future priests in Sydney. It is called Moore Matters and in the past year and a half I have received about four issues. Yet in not one of these issues have they acknowledged one of their graduates, Genieve Blackwell has been made a bishop. I am sure if one their male graduates was made a bishop, this would be yelled from the rooftops! Blackwell’s appointment has been noted in the secular media12 and even in the New South Wales parliament.13

In the early years of MOW’s foundation there was a bit of pushing and shoving. Some MOW members demonstrated outside and within synods with some singing and chanting, some Australian members travelled to London and demonstrated at the Lambeth Conference which are decennial assemblies of bishops of the Anglican Communion convened by the Archbishop of Canterbury.14 Some church people argue about the centrality of scripture in the way they conduct their lives. Yet we all like to select the bits which suit us. The scriptures talk about divorce and for centuries the church has censured divorcees, yet today even in Moore College you have divorcees on staff. Leading evangelical Sydney churches have had divorced priests. Senior evangelicals have had gay offspring yet the church regularly pillories the existence of gays. In 2011 Moore College established the Priscilla and Aquila centre which aims to encourage and promote further thinking about the practice of Christian ministry by women, in partnership with men. Is there anywhere a debate about the possibility of female priests? This is almost akin to the contemporary debate we are having in Australia about tax reform without considering an increase in the Goods & Services Tax (GST). Increasing the GST is pivotal to increasing revenues. Presently both major political parties are excluding increasing the GST. The federal opposition is prepared to discuss it and if it is an option, claim to take it to the next federal election in 2016. Why have a Priscilla and Aquila centre without considering the full roles women can play in church needing women’s gifts?

*Sessional lecturer, University of New South Wales, Faculty of Law

REFERENCES 1. Currently a respected columnist with the Sydney Morning Herald 2. Polemic, Volume 3, Issue 1, May 1992 pp 46-50 3. Kay Goldsworthy (Perth, 2008), Barbara Darling (Melbourne, 2008), Genieve Blackwell (Wagga Wagga, 2012), Alison Taylor (Brisbane, 2013) 4. Diane Nicolios was appointed in charge of women’s ministry within the Sydney Diocese, and within a number of years resigned to become a priest in Melbourne. 5. Attributed to Father Ian Herring and the title of a film: Fully ordained meat pie, Film Australia, 1987 http://www.youtube.com/watch?v=t5HSFvCLyS0 6. Apart from her involvement with MOW, Brennan was in charge of the Sexual Assault Unit at Liverpool Hospital and subsequently renamed in her honour as the Brennan Unit. Part of the plaque installed in the Unit reads: “Dr Patricia Brennan had boundless energy and fierce drive and determination. She campaigned vigorously for social justice and prevention of interpersonal violence. She had a creative mind and a quirky sense of humour which enabled her to overcome obstacles others would find insurmountable.” 7. Lindsay, E & Scarfe, J (ed) Preachers, prophets & heretics: Anglican women’s ministry, Sydney, UNSW Press, 2012 8. Johnson, C ‘Women congregate to celebrate ordination’, Canberra Times 21 November 2012 p 7 9. Sherlock, P ‘Why Anglican women can be bishops in Australia but not England’ The Conversation 21 December 2012 http://theconversation.com/why-anglican-women-can-be-bishops-in-australia-but-not-england-11337 10. I Corinthians 12: 1-31 11. ‘Transcript of Julia Gillard’s speech’ 10 October 2012 http://www.smh.com.au/opinion/political-news/transcript-of-julia-gillards-speech-20121010-27c36.html or via YouTube http://www.youtube.com/watch?v=SOPsxpMzYw4 12. Brown, M ‘Jensen begs off as deputy consecrates woman bishop’ Sydney Morning Herald 31 March 2012 http://www.smh.com.au/nsw/jensen-begs-off-as-deputy-consecrates-woman-bishop-20120330-1w3ha.html ; ‘Right Reverend Genieve Blackwell, 50 - 10 questions’ Weekend Australian 5 May 2012 http://www.theaustralian.com.au/news/features/right-reverend-genieve-blackwell-50/storye6frg8h6-1226343342822 13. ‘Tribute to Archdeacon Genieve Blackwell’ New South Wales Parliament Legislative Assembly Parliamentary debates 6 March 2012 p 9021 https://www.parliament.nsw.gov.au/prod/parlment/ hansart.nsf/V3Key/LA20120306052?open&refNavID=HA4_1 14. See the front cover of Lindsay, E & Scarfe, J (ed) Preachers, prophets & heretics: Anglican women’s ministry, Sydney, UNSW Press, 2012

THE ICRC CUSTOMARY LAW STUDY: A SMALL STEP TOWARDS MORE HUMANE WARTIME PRACTICES? BY DANIEL REYNOLDS* The International Committee of the Red Cross Customary Law Study1 is a 5,000 page, seven-kilogram document reporting on the current status of customary international humanitarian law. It was published in 2005 after 10 years of extensive research and consultation with experts from nearly 50 countries. Despite these herculean proportions, the study has been the subject of serious criticism by governments, international lawyers and judges, while receiving lukewarm acceptance in other contexts. As customary law is the most significant source of international law outside of treaties – given its capacity to bind countries despite their non-ratification of any protocol – and as the ICRC plays such a central role in the general administration of international humanitarian law, such a report has the potential to be extremely significant. In light of this, critical evaluation of this study is crucial, and will be carried out here having regard to three key aspects: 55

• The study’s methodology, in particular the choice of legal materials in establishing state practice and opinio juris2; • Its legal conclusions, using its rule against bombardment3 as a case study for the robustness of its results; and • Critical reception of the study, considering the responses of states and legal professionals, which in turn draw upon practical, jurisdictional, institutional and motivational observations about the study.

METHODOLOGY The ICRC project was bound to encounter difficulties from the start, as customary international law is an inherently contentious area, laden with “deficiencies, loopholes, and ambiguity,”4 and resting “not on a rock-solid natural law basis

of divine principles, but on a fabric of rational acts, woven through a multiplicity of relations over time”.5 The resulting ambiguities have led some academics to label customary international law as “doctrinally incoherent”,6 and “behaviourally epiphenomenal”,7 the latter phrase coined to describe the game theory view that what appears to be states’ compliance with international law is in fact nothing but an exercise in self-interest, with co-operation occurring only where it is advantageous to all parties.8 That view, however, tends to discount the importance of opinio juris (see definition below) as a legitimating force in customary international law, while the concerns about ambiguities in the law are exactly what this study aims to address. Given the diversity of opinions that exist on customary international law, the theoretical assumptions that form the backdrop of the ICRC’s approach to the study are hugely important – if not determinative – as to the validity of its conclusions. Some aspects of this have not been contentious, such as the Statute of the International Court of Justice’s characterisation of customary international law as “a general practice accepted as law,”9 or its widely accepted dual criteria of state practice (usus) and the belief that such practice is required, prohibited or allowed, depending on the nature of the rule, as a matter of law (opinio juris sive necessitatis).10 Beyond these settled principles, the ICRC was faced with a theoretical decision between adopting an inductive (or traditional) approach to establish the existence of customary international law rules, or a deductive (or modern) one.11 The inductive approach tends to emphasise state practice, and was evident in Lotus where the Permanent Court of International Justice inferred a general custom about objective territorial jurisdiction over ships on the high seas from previous instances

of state action and acquiescence; whereas the deductive emphasises opinio juris as it focuses primarily on statements rather than actions, and was heavily relied on in the Merits decision in Nicaragua. 12 Though claiming to adopt an approach that considers state practice and opinio juris in equal measure, the ICRC study in reality appears to lean toward a deductive approach, with extremely little evidence of state practice that could not equally be said to be evidence of opinio juris. While some influential theorists have endorsed such methods as helpfully progressive,13 ultimately it is states’ acceptance of the study that will determine its future influence. Here we see scepticism of the way the study conflates the two criteria, with the United States retorting that opinio juris cannot “simply be inferred from practice”.14 Henckaerts (co-author of the study) responds to this with the justification that without a clear mathematical threshold of how “extensive and uniform” state practice has to be, the density of practice shown will depend instead on the subject matter, and therefore sparse practice is no barrier to establishing a customary rule if its relevance arises only sporadically:15 an argument with some juridical support,16 but still lacking wholesale endorsement by states. The practical result of all this is that the selection of materials used by the ICRC to establish customary international law rules is arguably dubious, with an almost exclusive focus on ‘verbal’ materials, such as military manuals and treaties, at the expense of materials outlining ‘physical’ state practice. The use of treaty texts is perhaps the least problematic of these, as the ICJ considered in the North Sea Continental Shelf Cases that the degree of ratification of a treaty could be relevant to the assessment of customary international law.17 The use of military manuals, however, is a far more vexed issue, for two key reasons: the first is that 56

LEGAL CONCLUSIONS The vast majority of the Geneva Conventions’ provisions are considered to be customary,22 and given that these conventions anyhow enjoy near universal ratification (195 parties), the study focussed instead on issues arising in treaties that are only partially ratified, in particular the Additional Protocols, the Hague Convention for the Protection of Cultural Property, and certain conventional weapons treaties. Unable to individually assess all 161 rules laid down by the study, this article will instead focus on just one as a case study: Rule 13. The rule is given in the following terms: “Attacks by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects are prohibited.” 23 This mirrors the wording of Article 51(5) (a) of Additional Protocol I (hereafter ‘API’),

which forbids as indiscriminate “an attack by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects”.24 Similar wording was also inserted into the draft of Article 26(3)(a) of Additional Protocol II (hereafter ‘APII’), however this version of the provision failed to amass enough votes.25 On the face of it, it would appear that this rule has gained near-universal consensus and can reasonably be considered to be customary law. However, such a conclusion overlooks several factors, the first of which is the extent of ratification of API. Anderson describes this as the “elephant in the room”, the fact that the study tends to proceed as if API has been universally accepted, whereas at the time of the study’s publication, it in fact had 163 parties. This might seem like a good enough majority, but considering that the list of 29 non-parties includes India, Indonesia, Pakistan, Iraq, Iran, Israel, Turkey and the United States, and that the reservations made even by ratifying countries are often “dauntingly large”,26 the propriety of simply importing the language of API provisions to be used as putative rules of customary law should be called into question.27

...the selection of materials used by the ICRC to establish customary international law rules is arguably dubious, with an almost exclusive focus on ‘verbal’ materials, such as military manuals and treaties, at the expense of materials outlining ‘physical’ state practice.

PHOTO from www.icrc.org

manuals are often relied on in the study as a substitute for physical state practice, posing challenges for countries such as Germany, whose military manual18 is extremely detailed, but whose military engagement since 1945 has been approximately zero.19 Secondly, the use of military manuals to establish opinio juris is also questionable, as practice that is reflected in manuals is often based simply on government policy, and not a sense of a legal obligation, thus falling short of the threshold to give rise to a customary rule.20 Proponents of the study retort that military manuals constitute a useful second-best option where state practice is limited or non-existent, and that many of these so-called verbal acts in fact describe practice in actual wars anyhow;21 but this assumes – rather than demonstrates – compliance on the battlefield, and also fails to disprove the opinio juris objection.

Secondly, the evidence supposed to support the existence of the rule is often of questionable value. As a preliminary observation, not a single piece of evidence forming the “Practice Relating to Rule 13” relates to any physical state practice, a problem discussed above in the methodology section of this article. Specific pieces of evidence cited are intrinsically flawed too, such as the US Air Force Pamphlet28 which quotes Article 24(3) of the 1923 Hague Rules of Air Warfare (cast in substantially similar terms to Art. 51(5)(a) of API) but states that “they do not represent existing customary law”. The study goes on to cite a US proviso to the area bombardment rule stated at the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, that the words “clearly separated” meant “at least sufficiently large to permit the individual military objectives to be

attacked separately”,29 a semantic sleight of hand which shifts the test from an objective consideration of separation to a subjective consideration of distinct targetability, which hinges, amongst other things, on the targeting capabilities of the weaponry in question. This fairly self-serving definition was also adopted by three more major world powers at the conference – Canada, Egypt, and the United Arab Emirates – and these endorsements too are cited by the study, misleadingly, as supporting state practice for Rule 13. Finally, in concluding that Rule 13 applies even in non-international armed conflicts, the study was forced to concede that APII does not contain the rule (as mentioned above), but asserted in the alternative that the rule was inferentially included as it forbids making civilian populations the object of attack – a prohibition cast in terms reminiscent of the canonically accepted principle of distinction. However, to simply treat the prohibition on 58

PHOTO from National Archives and Records AdministratioN

...considering that the list of 29 non-parties [to the API] includes India, Indonesia, Pakistan, Iraq, Iran, Israel, Turkey and the United States, and that the reservations made even by ratifying countries are often “dauntingly large”, the propriety of simply importing the language of API provisions to be used as putative rules of customary law should be called into question.

area bombardment as coextensive with the principle of distinction is poor reasoning both on inductive and deductive grounds, and goes directly against the clearly demonstrated intentions of the framers in rejecting the draft provision containing that exact prohibition. Finally, the justification that “it has been included in other instruments pertaining also to non-international armed conflicts”30 does little to salvage the rule in light of the foregoing considerations, especially given that two of these are bilateral agreements, and the third is Amended Protocol II the Convention on Certain Conventional Weapons, which has only five parties that are not also parties to APII.

CRITICAL RECEPTION The final aspect that demands evaluation is the critical reception of the study. Interestingly, seven years after the study’s publication, the US remains the only state to have issued an official response to the 59

findings, leading some critics to argue – perhaps over-simplistically – that this suggests a tacit acceptance on the part of all the other states.31 Yet the critical responses by lawyers and academics have been diverse and insightful, and can help to illuminate the impact on international humanitarian law the study will have in years to come. Before considering these critiques, it is worthwhile noting that many commentators have indeed praised the study as “comprehensive, highlevel research”32 and “a remarkable feat and a significant contribution to scholarship and debate”;33 and that the study has also been invoked by both advocates and judges in ICTY jurisprudence, for instance in Hadžihasanović.34 Considering the study from an institutional standpoint, Thürer takes issue with the propriety of the ICRC’s dual role as codifier and advocate of international humanitarian law, arguing that the fact that the research is presented as an exercise in ‘finding’ the law is

suspicious at best and misleading at worst,35 with Parks also agreeing that this conflict of interest may have led to the study placing too much weight on its own official statements as relevant to support the customary nature of a rule.36 These concerns are valid in part, as a body that is invested in the progressive development of international humanitarian law will likely be motivated to do more than merely ‘tidy up’ the law;37 however the depth and breadth of scholarly input that went into the study should go some way to assuaging these concerns. Perhaps more defensible is the critique that the ICRC’s stated humble expectation that “governmental experts [will] use the study [merely] as a basis for discussions on current challenges to international humanitarian law” is disingenuous and risks provoking a backlash, as it suggests a certain detached neutrality from the project that is clearly artificial.38 Other critiques hone in on the research process itself. Anderson labels the study

an “edifice of scholasticism”39 that lacks significant practical value, as its exhaustive cataloguing of the views of many smaller countries might muddy the waters of what constitutes actual state practice. He also notes a bias in the selection of experts for the various national consultations, none of whom “bring to the table any significant scepticism about the desirability of an expanding reach for customary rules”.40 This concern is further bolstered by Meron’s observation that expert committee disbanded in 1999 prior to the actual writing of the report,41 leaving the task of compilation essentially in the hands of Henckaerts and Doswald-Beck alone. These observations may go some way towards explaining the over-simplification evident in the framing of much of the state practice material, and the tendency for the study to assert rules as unqualified customary norms where the evidence is often more controversial. In any case, the study was always intended to be only a starting point for discussion, and now forms the basis of the ICRC’s online customary international humanitarian law database:42 despite its flaws, and with some deliberative input from states and other international actors, the study’s rules may yet manage to crystallise as hard and fast custom in years to come. Whether state practice will become more humane as a result remains to be seen.

despite its flaws, and with some deliberative input from states and other international actors, the study’s rules may yet manage to crystallise as hard and fast custom in years to come. 60

REFERENCES * My thanks go to Amrita Kapur, who provided invaluable feedback on an earlier version of this paper. 1. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, 2 volumes, Volume I. Rules, Volume II. Practice (2 Parts), Cambridge University Press, 2005. 2. There are other methodological criticisms to be levelled at the study which will not be discussed here, such as its treatment of ‘specially affected states’. See International Law Association (2000) “Final Report of the Committee on the Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law” Report of the Sixty-Ninth Conference, London, Principle 14 3. Rule 13, Henckaerts and Doswald-Beck, Volume II supra note 1. 4. Cassesse, A. (1986) International Law in a Divided World, at 285. 5. Norman, G. and Trachtman, J. (2005) “The Customary International Law Game”, The American Journal of International Law, Vol. 99, No. 3 (Jul., 2005), pp. 541-580.

19. Anderson, K. (2005) “My Initial Reactions to the ICRC Customary International Humanitarian Law Study”, Kenneth Anderson’s Law of War and Just War Theory Blog (Nov 15th 2005). 20. Balgamwalla, S. (2005) “Review of Conference: The Reaffirmation of Custom as an Important Source of International Humanitarian Law”, Human Rights Brief 13, no. 2 (2006): 13-16, reporting on a speech given by Joshua Dorosin (Assistant Legal Advisor to the US) at that Conference. 21. Henckaerts, J-M. (2006) “ICRC’s Jean-Marie Henckaerts responds to my comments on ICRC Customary Law Study”, Kenneth Anderson’s Law of War and Just War Theory Blog (Jan 24th 2006). 22. International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 226. 23. Rule 13, Henckaerts and Doswald-Beck, supra note 1. 24. Additional Protocol I, Article 51(5)(a). 25. CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 134. 26. Anderson, supra at 26.

6. Ibid, at 541.

27. Balgamwalla, supra at 27.

7. Ibid.

28. United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, s 5-2(c).

8. Engel, C. and Kurschilgen, M. (2011) “The Coevolution of Behaviour and Normative Expectations: Customary Law in the Lab”, Preprints of the Max Planck Institute for Research on Collective Goods, Bonn 2011/32.

29. United States, Statement at the CDDH, Official Records, Vol. XIV, CDDH/III/SR.31, 14 March 1975, p. 307, paragraph 50.

9. Statute of the International Court of Justice, Article 38(l)(b).

30. Rule 13, Henckaerts and Doswald-Beck, Volume II supra note 1.

10. See for example, International Court of Justice, Continental Shelf Case (Libyan Arab Jamahiriya v. Malta), Judgment, 3 June 1985, ICJ Reports 1985, pp. 29-30, at para. 27.

31. Bugnion, F. (2004) “The International Committee of the Red Cross and the Development of International Humanitarian Law”, 5 Chicago Journal of International Law 191, 211-212.

11. Roberts, A. (2001) “Traditional and Modern Approaches to Customary International Law: A Reconciliation”, The American Journal of International Law, Vol. 95, No. 4 (Oct., 2001), pp. 757-791.

32. MacLaren and Schwendimann, supra at 18.

12. International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986.

34. Prosecutor v. Hadžihasanović and Kubura (Appeal Judgment), IT-01-47-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 22 April 2008

13. Tasioulas, J. (1996) “In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case”, 16 Oxford Journal of Legal Studies 85; Kirgis, F. (1987) “Custom on a Sliding Scale”, 81 American Journal of International Law 146.

35. Thürer, D. (2005) “The Democratisation of Contemporary International Law-Making Processes and the Differentiation of Their Application”, in Developments of International Law in Treaty Making 53 (2005).

14. Bellinger, J. and Haynes, W. (2007) “A US Government Response to the International Committee of the Red Cross study Customary International Humanitarian Law”, International Review of the Red Cross, Volume 89 Number 866 June 2007. 15. Henckaerts, J-M. (2007) “Customary International Humanitarian Law: a Response to US Comments”, International Review of the Red Cross, Volume 89 Number 866 June 2007. 16. Eg. In International Court of Justice, The S.S. Wimbledon (1923), PCIJ Series A, No. 1, pp. 1, 28, the PCIJ relied on two precedents only (Panama and Suez canals), to find that the passage of contraband of war through international canals was not a violation of the neutrality of the state. 17. International Court of Justice, North Sea Continental Shelf Cases, (1969) ICJ 13 at para 73. 18. Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992.

33. Ibid.

36. Parks, W. (2005) “The ICRC Customary Law Study: A Preliminary Assessment”, Proceedings of the Annual Meeting (American Society of International Law) , Vol. 99, (March 30-April 2, 2005), pp. 208-212 37. Wolfrum, R. (2005) Developments of International Law in Treaty Making, Rüdiger; Röben, Volker (Eds.). 38. International Committee of the Red Cross, Customary law study enhances legal protection of persons affected by armed conflict, Press Release No. 05 / 17 (17 March 2005). 39. Anderson, K. (2005) “My Initial Reactions to the ICRC Customary International Humanitarian Law Study”, Kenneth Anderson’s Law of War and Just War Theory Blog (Nov 15th 2005). 40. Ibid. 41. Meron, T. (2005) “Revival of Customary Humanitarian Law”, The American Journal of International Law, Vol. 99, No. 4 (Oct., 2005), pp. 817-834. 42. International Committee of the Red Cross (2011) “ICRC database on customary international humanitarian law: new update”, ICRC Resource Centre, 18-11-2011 News Release 11/233. 62

the principle of Giannarelli v Wraith.8 This contradiction of duty is evidently problematic, representing a conflict of interest that gives the prosecution an inequitable advantage.

(DIS)ADVANTAGE IN LOWER AND HIGHER COURTS BY TARANG IMMIDI There is great discrepancy between higher and lower courts in New South Wales that extends past the most apparent differences such as sentencing powers or the seriousness of matters heard. The division marks a fundamental difference in court operation, public perception and adherence to traditional notions of how justice is to be done. 95.9% of criminal hearings take place in lower court,1 however, local courts are where defendants are given the least equitable chance to defend their innocence.

In 1997, the Wood Royal Commission found that the independence and impartiality of police prosecutors is compromised for three main reasons:2

1. They are answerable to their superiors in the police chain of command.3 This creates a conflict of interest between the court and their peers, whom they may be questioning. Regardless of a police prosecutor’s intention to remain impartial, the fact that their superiors, who may not be as familiar with the courts system,4 would be biased towards I. POLICE PROSECUTION protecting another police officer.5 This clouds the impartiality of the prosecutor, As a somewhat lay observer in the Local resulting in unjust interactions between Courts, it is particularly evident to me that the police officers and the court. relationship between police prosecutors and the police officers testifying is significantly 2. Police prosecutors do not have a legal different to that between the officers and duty like solicitors and barristers do.6 defence lawyers. In my observations, officers According to the police prosecutor’s code tended to be openly hostile to defence of conduct, prosecutors are required to lawyers’ questioning, at some points ‘discharge their duties to the Court and bordering on ridiculing the questions asked. Police Service honestly and impartially.’7 This is in stark contrast to the elaborate, Simultaneously, the prosecutor’s seemingly pre-prepared responses to the course guides prosecutors to embrace prosecution’s questions.

3. Police prosecutors are not subject to the same code of practice of behaviour and professional discipline as members of the legal profession.9 Solicitors and barristers are bound by and face significant penalties for not adhering to their professional code of conduct. The police prosecutor code of conduct is ambiguous (see (2) above), and the mechanisms of its enforcement are significantly different, resulting in different actors in the local court system being held to varying standards for performing similar roles. In short, the Wood Royal Commission said that police prosecutors face a conflict of interest between being impartial to ensure a fair trial, and protecting and aligning with their peers. The problem is distinct from any conflict of interest defence representation may face, as police prosecutors adhere to a different set of rules that may not be enforced as effectively as those for solicitors and barristers. It is my opinion that this problem still exists in local courts, or that little has been done to remedy it.

II. DEFENCE IN LOCAL COURTS The position of advantage enjoyed by police prosecutors stands in contrast to the position of most defendants, particularly those who are self-represented. These defendants are generally given a minimal level of guidance, resulting in a limited grasp of court room terminology, for example, being able to refer to the Magistrate properly. These defendants are however, unable, on the whole, to present legally compelling arguments, often times resorting to an emotional appeal destined to fail in a courtroom. There tends to be a preparedness by Local Courts magistrates

to relax the formality of court ceremonies such as the role of the magistrate as a ‘referee’ rather than an active participant, is representative of the contrast in purpose of lower and higher courts.10 Higher courts represent an ideological practice of law and justice, while lower courts practice summary justice that is ‘not real law’,11 and devoid of ‘traditional due process’.12 Other defendants in the Local Court are represented by a variety of under-paid legal-aid lawyers13 and often-inexperienced solicitors. This is in itself a problem against police prosecutors who have an advantage, as discussed above. The court environment, designed to reflect traditional courtroom power structures,14 does not remedy the problem. Most defendants sit furthest of all participants in the court room. Those in the dock sit well off to the side of proceedings, which is a particular problem

The position of advantage enjoyed by police prosecutors stands in contrast to the position of most defendants, particularly those who are self-represented. in the event of self-represented defendants from the dock. The other consequence of this spatial organisation is that audibility is compromised.15 Inaudibility further compromises the position of both selfrepresented defendants and inexperienced solicitors who may not be familiar with court jargon, thus putting defendants at further disadvantage in lower courts. 64

III. DEFENCE IN HIGHER COURTS In higher courts, there exists a more level playing field between the defence and prosecuting counsel. Director of Public Prosecutions (DPP) and defence lawyers tend to be equally familiar with and confident in addressing the court and interacting with the judge. All legal professionals involved in these courts interact with the court on a regular basis, hence are equally capable of interacting with it. In contrast, from the perspective of the defendant or any lay person, stepping into a court room is a daunting experience, due to the immediately perceptible nature of power dynamics,16 signs of which saturate the court room, from the elevated and ornate judge’s bench to the language used and the ritual of bowing. In the idealistic perception of the operation of the court room, the judge and court officers ‘hold a fair monopoly over ceremonies’17 It is through ceremonies, often archaic,18 that power is exuded. The major difference, to me, between lower and higher courts is the relaxing of these ceremonies and rules. Thus, given the disadvantage that self-represented defendants are at in lower courts, self-represented defendants in higher courts are at an entirely unacceptable disadvantage. While the incidence of such defendants is rare, it is not unheard of, especially in matters such as bail hearings. Self-represented defendants in these courts may have been given greater legal advice than in lower courts, higher courts simply lack the experience of dealing with such defendants to accommodate them equitably. Fundamentally, a self-represented defendant will require some degree of leniency or assistance from the judge or magistrate regarding process and court rules.19 This cannot often occur in higher courts as empirically, such rules and processes are more strictly enforced in higher courts, particularly the Supreme Court. The relaxation of rules and assistance from the 65

judge in higher courts risks the perception of bias, invalidating a trial or hearing.20 Self-represented defendants thereby result in improper court processes, which is particularly problematic in higher courts.

IV. DPP PROSECUTION Prosecutions by the DPP tend to bring the operation of the court closer to the ideal. First, both prosecutors and defence lawyers in higher courts are bound by the same codes of practice, therefore have the same limits placed on their conduct. Second, any special relationship or familiarity a public prosecutor has, is dealt with professionally by the court. Prosecutors already have a close working relationship with judges, but are able to maintain a degree of formality and professionalism that ensures that justice is not only done in higher courts, but is also seen to be done.21 Even so, some of the greatest miscarriages of justice have occurred in some of the highest courts in Australia. Mohamed Haneef was wrongly charged and detained on advice given by the Commonwealth DPP on the basis of inaccurate information given by the Federal Police.22 This is indicative of the fact that higher courts are not perfect and still face problems such as prosecutorial discretion. Higher courts might be better for a fairer trial, however they are hugely expensive, and not by any means perfect.

V. CONCLUSION The greatest difference between lower and higher courts with regard to representation is the discrepancy of advantage that the prosecution has over defendants. In lower courts, this arises from the advantage police prosecutors have in addition to the disadvantage self-represented defendants are at. Higher courts tend to be a more level playing field, with most matters having similar calibre prosecutors and defence

representatives. This is a product of the way in which each court is conducted, a result of the function of each tier of the courts system in society. As academic Doreen McBarnett argues, higher courts reflect the ideal of the criminal justice system, and exist partly for public consumption, resulting in rigid rules of process.23 Lower courts exist to ‘get through the list’ and process as many matters as possible in the shortest time possible,24 resulting in more lax court processes. The

result of these differing functions has led to the current, inequitable situation. Steps can be taken to move towards a more equitable adversarial process in lower courts, in my opinion, by transferring responsibility for prosecutions to the DPP and ensuring selfrepresented defendants have sufficient resources to defend themselves.

REFERENCES 1. Kathy Mack and Sharyn Roach Anleu, ‘‘Getting Through the List’: Judgecraft and Legitimacy in the Lower Courts’ (2007) 16 Social Legal Studies 342, 349. 2. New South Wales, Royal Commission into the New South Wales Police Service, Final Report (1997) vol 2, 297. 3. Ibid 4. Ibid 298. 5. Nicholas Cowdery, ‘Cowdery seeks take over of police prosecutions’, The Sydney Morning Herald (Sydney, Australia), 1 May 2010, 1. 6. Royal Commission into the NSW Police Service, above n 3, 297. 7. Royal Commission into the New South Wales Police Service, above n 2, 380. 8. (1988) 165 CLR 543, 556: “This duty may require the advocate to act to the disadvantage of the client’s case, even if the client instructs to the contrary.” 9. Royal Commission into the NSW Police Service, above n 3, 297. 10. Doreen McBarnet, Conviction: Law, the State and the Construction of Justice (Palgrave Macmillan, 1981) 152. 11. Ibid 153. 12. Ibid. 13. Nicholas Cowdery, ‘Dietrich: Why Should the Prosecution Worry?’ (1997) 9(2) Current Issues in Criminal Justice 163, 167. 14. Pat Carlen, Magistrates Justice (Martin Robertson and Co, 1976) 21. 15. Ibid 23. 16. Harold Garfinkel, ‘Conditions of successful degradation ceremonies’ (1956) 61(5) American Journal of Sociology 420, 424. 17. Ibid. 18. McBarnet, above n 10, 160. 19. Duncan Webb, ‘The right not to have a lawyer’ (2007) 16 (3) Journal of Judicial Administration 165, 175. 20. Ibid. 21. McBarnet, above n 10, 153. 22. Peter Hastings, ‘A Lesson for Prosecutors’ [2011] Bar News: Journal of the New South Wales Bar Association 40, 42. 23. McBarnet, above n 10, 153. 24. Ibid. 66

HISTORY REPEATING THE PERSECUTION OF HOMOSEXUAL MEN IN MODERN-DAY EGYPT AND THE STRUGGLE TO RECOGNISE ‘SEXUAL ORIENTATION’ AS A GROUNDS OF PERSECUTION UNDER THE ROME STATUTE BY MARIE ISKANDER “I used to think being gay was just part of my life and now I know it means dark cells and beatings. It is very, very difficult to be gay in Egypt.”1 International criminal law (‘ICL’) emerged in response to the unimaginable “scale of barbarism” committed by Nazi officials during the Third Reich,2 whereby the Nuremburg Charter and Nuremberg trials codified crimes against humanity into positive ICL.3 Despite their merits, the Nuremberg Charter and Nuremberg trials both failed to adopt a holistic approach to the crimes against humanity committed by the Nazis. This was particularly the case as the catalogue of victim groups recognised in the Nuremberg Charter was “too narrow”, and although homosexuals “suffered group-based attacks by the Nazis”,4 they were not recognised. Unlike the Nuremberg Charter, which seemingly required a discriminatory motive 67

to prosecute perpetrators of crimes against humanity,5 the Rome Statute has been celebrated for eliminating this requirement in relation to all crimes against humanity except for the crime of persecution.6 This is a step forward for ICL, as it enables the International Criminal Court (ICC) to indict individuals responsible for perpetrating crimes against humanity, regardless of a discriminatory motive.7 However, the grounds of persecution under the Rome Statute8 have been construed in a manner which seeks to exclude sexual orientation, as Article 7(3) narrowly defines ‘gender’ in a manner which would preclude homosexuals.9 This construction of gender in the Rome Statute is particularly problematic as homosexuals and transsexuals are often subjected to the worst form of persecution,10 but under the current interpretations emerging from the Rome Statute they would not be afforded protection against persecution under ICL.

The purpose of this piece is to challenge this exclusion of homosexuals from ICL, and I argue that such a construction is inconsistent with the principles of transitional justice and fails to address the widespread culture of impunity attached to such crimes. Although it would be difficult to indict perpetrators from Egypt for international crimes against humanity,11 as Egypt is yet to ratify the Rome Statute,12 this case study is relevant to this piece’s arguments, as the alleged crimes committed against homosexual men in Egypt are akin to those committed by Nazi officials over seven decades ago. This situation where history is seemingly repeating itself demonstrates the extent to which ICL since the Nuremberg Trials has failed to deter crimes of such gravity, and in particular highlights the necessity for ICL to positively protect people who are persecuted on the basis of their sexual orientation. As many homosexuals in a variety of countries are often subjected to severe state-sanctioned violence, persecution and torture,13 this piece calls on the ICC to consider an expansive definition of ‘gender’ when interpreting the Rome Statute in order to deter further crimes of persecution against individuals on the basis of sexual orientation.

The persecution of homosexual men in Egypt and memories of the ‘pink triangle’ in Nazi Germany The Third Reich began their persecution of homosexual men immediately following their rise to power, whereby the police were set to “destroy the homosexual subculture” in Germany by “performing raids” at “exotic events”.14 By a disturbingly similar token, agents of the “Vice Squad”15 in Egypt have reportedly been involved in conducting “mass roundups” of “men suspected of homosexual conduct”16 following raids conducted at bars and clubs renowned for being frequented by gay men.17 The most significant raid took

place in May 2001, when fifty-two men were arrested during a police raid of a “Cairo discotheque” called the ‘Queen Boat’.18 After these men were rounded up, Human Rights Watch reported that victims were “whipped, beaten, bound and suspended in painful positions, splashed with ice-cold water, and burned with lit cigarettes”, or more heinously “tortured with electroshock on the limbs, genitals, or tongue”.19 In addition, guards would sometimes encourage “other prisoners to rape suspected homosexuals”.20 Moreover, similar to the Nazi Party, who used “invasive ‘medical’ procedures” designed to alter sexual orientation,21 men arrested for appearing homosexual in Egypt are “forcibly subjected to anal examinations at the hands of the Forensic Medical Authority”, an agency of the government’s Ministry of Justice.22 According to Human Rights Watch: Doctors compel the men to strip and kneel; they massage, dilate, and in some cases penetrate the prisoners’ anal cavities in search of signs that they have been “habitually used” in “sodomy.”23 What is worse is that doctors have also recently employed “new methods” involving electricity to investigate prisoners’ anuses.24 Furthermore, akin to the imprisonment of homosexuals in concentration camps under the Nazi regime, where the Gestapo habitually imprisoned men without any 68

could have been satisfied in this case, as the persecution of homosexuals clearly involved conduct such as torture,34 rape35 and arbitrary deprivation of liberty.36 Nonetheless, while the persecutory conduct by the Egyptian officials was clearly pursued for discriminatory reasons, because persons were targeted for their perceived homosexual identity,37 the conditions of persecution as recognised under the Rome Statute would not be proven due to the limited grounds of persecution recognised under Article 7(1)(h). This is the case as persecution may only be prosecuted under the Rome Statute if it is committed Although the political regime in Egypt has on the basis of “political, racial, national, changed since the Human Rights Watch ethnic, cultural, religious, gender as defined report was published in 2004, frequent media in article 7, paragraph 3, of the Statute, or reports have cited the ongoing existence of other grounds that are universally recognized persecution against homosexuals in Egypt.29 In as impermissible under international law”.38 addition, as the principles of Shar’ia law have Up until this point, international criminal been codified in the Egyptian constitution, jurisprudence does not recognise persecution it is arguable that there is a likely chance on the grounds of sexual orientation.39 As will that persecutory practices will continue, as be discussed next in this piece, the narrow homosexuality is cited as being inconsistent definition provided for ‘gender’ is problematic with Shar’ia law.30 as it precludes prosecution of perpetrators who have persecuted homosexuals. Developing a case against Egyptian officials for crimes A critique of Article 7(3): against humanity a futile definition of ‘gender’ As previously noted Egypt has not ratified “The religious enclave, wrongly elevated to the Rome Statute31 and therefore would statehood by an unthinking international not come within the ambit of the ICC’s community, was responsible for including jurisdiction, unless the United Nations Article 7(3): the most ridiculous clause in any Security Council referred the matter to the international treaty ever devised.”40 ICC Prosecutor to investigate.32 Article 7(3) of the Rome Statute defines Notwithstanding this, in order for persecution ‘gender’ as referring to the “two sexes, to be proved under the Rome Statute, it must male and female, within the context of have been committed in “connection with any society”. In addition the definition of act” referred to in Article 7(1) or any crime gender, Article 7(3) includes the following within the jurisdiction of the Court.33 This

evidence that they had actually engaged in homosexual “offences”,25 the Vice Squad in Egypt regularly arrest and imprison men “suspected” of engaging in homosexual acts, charging them with contravening Egyptian laws prohibiting “debauchery”.26 These men are routinely harassed, beaten and arrested based on how they look and walk, the style of their hair, and even the colour of their underwear.27 Thus such persecution often merely occurs merely because individuals appear to act “at odds with social norms” in particular “norms for expressing gender”.28

sentence: “[t]he term ‘gender’ does not indicate any meaning different from the above”.41 While the inclusion of ‘gender’ as a ground for persecution has been hailed as an achievement for international law,42 this restrictive definition was intentionally constructed to ensure that persecution on the basis of sexual orientation was not proscribed.43 Interestingly, it may be noted that Egypt, among other Arab and Catholic delegates, played a dominant role in opposing the inclusion of the term ‘gender’,44 as they feared it would be understood to include sexual orientation.45 In relation to this, one commentator stated that they objected to the inclusion of the ‘term’ gender because they believed that this would “be a code of homosexuals”46 and would subsequently “put them and their lifestyles on the same legal footing as married couples”.47 As a result, some delegates suggested that the term “sex” be alternatively adopted, as this would confine the definition to the biological differences between men and women.48 Other delegates however argued that the inclusion of the term ‘gender’ would be a more “accurate reflection of the current state of international law”, as it would capture sociological and biological definitions.49 Therefore, the definition in Article 7(3) was adopted to “prohibit any interpretation of the term gender as a social construction that might encompass sexual orientation”,50 particularly as this definition was the only one which the “Arab States and others” were willing to agree to.51 The definition of ‘gender’ encapsulated in Article 7(3), however, appears futile

when considering the chapeau elements of persecution in the context of the Rome Statute. To be prosecuted under the Statute, the persecutory acts must have been conducted “in connection” with other crimes against humanity referred to under the Rome Statute or within the ICC’s jurisdiction.52 The high threshold therefore renders persecution type crimes to a ‘secondary status’,53 requiring it to be “of the same gravity or severity” as other crimes enumerated under the Statute.54 Therefore contrary to the ‘fears’ expressed during the negotiations at Rome, “not every denial of human rights may constitute a crime against humanity”.55 For this reason, issues pertaining to “marriage equality”, for example, would not come within the ambit of the ICC’s jurisdiction as this form of discriminatory conduct does not amount to persecution as defined by the Rome Statute. In order to constitute a crime against humanity, acts of persecution in their “overall consequences must offend humanity in such a way that they may be termed ‘inhumane’”.56 For this reason it seems rather futile that the delegations sought to preclude protecting people from being persecuted on the grounds of sexual orientation, unless their aim was to tacitly permit the persecution of homosexuals and transsexuals. In light of Egypt’s persecution of homosexuals, it is clear that inclusion of Article 7(3) has contributed to a culture of impunity, where state actors can systematically persecute people on the basis of their sexual orientation, and be able to escape unscathed and without being reprimanded by ICL.

contrary to the ‘fears’ expressed during the negotiations at Rome, “not every denial of human rights may constitute 69

a crime against humanity”.

Reading ‘sexual orientation’ into the Rome Statute as a ground of persecution Although some delegates were convinced that the definition of ‘gender’ would preclude sexual orientation as becoming a ground of persecution,57 the definition in Article 7(3) adopted language which could be interpreted to include sexual orientation and thereby contribute to the “progressive development of international law”.58 Firstly, sexual orientation may be recognised within Article 7(1)(h) as falling within “other grounds that are universally recognised as impermissible under international law”.59 This ground however may not easily accommodate for sexual orientation on the basis that “universal recognition” is a significantly high threshold.60 Alternatively, the inclusion of the language “within the context of society” sought to provide sufficient flexibility to the definition which would thereby leave it open for the ICC to interpret the definition of gender based on the “circumstances before it”.61 The term ‘gender’ in the context of the language used in Article 7(3) may be read in a way that suggests that individuals who do not behave according to “a prescribed gender role”62 may be afforded protection against persecution under the Rome Statute. This approach to “gender-based violence” was taken by the United Nations Human Rights Council which highlighted that persecution on the grounds of gender may be “driven by a desire to punish those seen as defying gender norms”.63 This reading would thereby support the finding that the crimes against

homosexual men in Egypt satisfy the grounds of persecution under the Rome Statute, as such persecutory conduct was driven by a motivation to re-establish “gender hierarchy in a context of shifting gender roles”.64 In addition, while the last sentence of Article 7(3) appeared to be an attempt to exclude sexual orientation being read within the Statute’s definition of gender, several scholars have argued that this sentence is “superfluous”.65 This is evident because the sentence merely refers the reader back to the first sentence, which as previously stated, may be read in a way that accommodates for sexual orientation.66 Moreover, while some may have been concerned that the language “within the context of society” would be read to accommodate for cultural relativism, thereby precluding expansive definitions of gender, Kelly Askin highlights that this language does not refer to a “specific society” but rather “connotes a normative approach to society as a whole”.67 Therefore, within this framework the ICC may consider reading the definition of ‘gender’ in light of the context of the international society’s conception of gender. Furthermore, by adopting a plain reading of the Rome Statute’s definition of gender and analysing the negotiation history, it does not appear that “sexual orientation” was explicitly excluded from the meaning of ‘gender’. This therefore provides further scope for the ICC to expansively read the prohibited grounds of discrimination as including sexual orientation.68 Finally, it may be argued that when considering the general principles of ICL

as expressed in Article 21(3), it would be dubious to suggest that any ambiguities inherent in the definition of gender “would be resolved in favour of discrimination, especially in a statute establishing the highest international institution of justice”.69 This is arguable on the basis that Article 21(3) states that the Statute must be consistent with international human rights and that the law must be applied without any adverse distinction of discrimination. Therefore, this holistic approach to reading gender in light of other provisions contained in the Rome Statute would favour an inclusion of sexual orientation as a prohibited ground of persecution, rather than interpreting the definition of gender as being exclusive. Therefore, these approaches demonstrate that while the definition of ‘gender’ in Article 7(3) upon first reading appears rather restrictive, it may be expansively read to allow the ICC to interpret the definition of gender as including non-discrimination on the basis of sexual orientation, thereby avoiding a “regression in the law”.70

Conclusion “Hatred which expresses itself in persecution must draw condemnation and punishment as a crime against humanity, otherwise hatred wins the day.”71 Crimes against humanity, committed on the grounds of sexual orientation, have existed before the birth of ICL and date back to the atrocities committed by the Nazi Party.72 Despite this, ICL has been slow to positively protect homosexuals and transsexuals,

as was evident during the negotiations at Rome, whereby delegates failed to seize the opportunity to define gender in a way which protects victims who are frequently targeted, persecuted and tortured on the basis of their sexual orientation or gender identity. Although the birth of the Rome Statute and the International Criminal Court marked an evolution in international law as it sought to end impunity for mass atrocities,73 the tacit failure of the international community to protect homosexuals from persecution has contributed to an ongoing culture of impunity. This is most evidently portrayed by the case study detailing the modernday persecution of homosexuals in Egypt, where such crimes and persecutory conduct appears disturbingly similar to the crimes committed by the Nazi regime. While the Rome Statute deserves positive recognition for eliminating the discriminatory chapeau element from the application of crimes against humanity, the restrictive definition of ‘gender’ adopted in Article 7(3) should be read expansively, reformed or abolished for the Statute to be considered complete. The justification for this argument is based on the facts that such an exclusive definition of gender is not consistent with the principles of transitional justice, as it contributes to a culture of impunity with regards to crimes committed against individuals on the basis of their sexual orientation. Ultimately, it is not appropriate for the international community or the ICC to tacitly permit such “egregious” crimes to occur,74 or to allow the horrors of history to continuously repeat itself.

delegates failed to seize the opportunity to define gender in a way which protects victims who are frequently targeted, persecuted and tortured on the 71

basis of their sexual orientation or gender identity.

REFERENCES 1. Scott Long, ‘In A Time of Torture: The Assault on Justice in Egypt’s Crackdown on Homosexual Conduct’, (Report, Human Rights Watch, 2004) 1. 2. Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (Penguin Books, 3rd ed, 2006) 207. 3. Alycia T. Feindel, ‘Reconciling Sexual Orientation: Creating A definition of Genocide that includes Sexual Orientation’ (2005) 13 Michigan State Journal of International Law 197, 198. 4. David Luban, ‘A Theory of Crimes Against Humanity’ (2004) 29 Yale Journal of International Law 85, 100. 5. Cameron Charles Russell, ‘The Chapeau of Crimes Against Humanity: The Impact of the Rome Statute of the International Criminal Court’ (2011-12) 8 Eyes on the ICC 25, 36. 6. Ibid 53-4. 7. Ibid. 8. Statute of the International Court of Justice art 7(1)(h) (‘Rome Statute’). 9. Joshua H. Joseph, ‘Gender and International Law: How the International Criminal Court can bring Justice to Victims of Sexual Violence’ (2009) 18 Texas Journal of Women and the Law 61, 67-68. 10. Ibid 96-7. 11. An exception to this would be if the United Nations Security Council referred the matter to the Prosecutor of the International Criminal Court under Chapter VII of the United Nations Charter. See Rome Statute art 13(b). 12. Coalition for the International Criminal Court, ‘Global Coalition Calls on Egypt to Move Forward on ICC Commitment’ (Media Release, 23 May 2013) 1 <http://www.iccnow.org/documents/CICC_EGYPT_PR_Final_ENG.pdf>. 13. Ryan Goodman, ‘The Incorporation of International Human Rights Standards into Sexual Orientation Asylum Claims: Cases of Involuntary “Medical” Intervention’ (1995) 105 Yale Law Journal 255, 255. 14. Rudiger Lautmann, ‘The Pink Triangle: Persecution of homosexual males in concentration camps in Nazi Germany’ (1981) 6(1) Journal of Homosexuality 141, 143. 15. See Long, above n 1, 2-3. This Squad was a ‘morals’ police within the Ministry of Interior’s national police force, with divisions in each jurisdiction 16. Ibid 2. 17. Ibid 19. 18. Ibid 2. 19. Ibid. 20. Ibid. 21. Goodman, above n 14, 268. 22. Long, above n 1, 2. 23. Ibid. 24. Ibid. 25. Feindel, above n 3, 203. 26. Long, above n 1, 1-2. 27. Ibid 3. 28. Ibid 124. 29. Amnesty International, ‘Egypt: HIV Arrests: Policing in Ignorance and Fear: Doctors Failing in their medical responsibility’ (Press Release, MDE 12/009/2008, 20 May 2008) <www.amnesty.org/en/library/info/MDE12/009/2008/en>. 30. Duncan Golestani, ‘’Getting Worse’: Egypt’s gays fear government crackdown’, NBC News (online), 23 January 2013 <http://worldnews.nbcnews.com/_news/2013/01/23/16644770-getting-worse-egypts-gays-feargovernment-crackdown?lite>. 31. Coalition for the International Criminal Court, above n 13. 32. Rome Statute, art 13(b). 33. International Criminal Court, ICC Elements of Crime, art 7(1)(h), element 4. 34. Rome Statute, art 7(1)(f). 35. Rome Statute, art 7(1)(g). 36. Rome Statute, art 7(1)(e). 37. International Criminal Court, ICC Elements of Crime, art 7(1)(h), element 2.

38. Rome Statute, art (7)(1)(h). 39. See Explanatory Memorandum of the (German) Code of Crimes against International Law (BT-Drucks. 14/8524) 22. 40. Robertson, above n 2, 338. 41. Rome Statute, art 7(3). 42. Cate Steains, ‘Gender issues’ in Roy S. Lee (ed), The International Criminal Court: The Making of the Rome Statute - Issues, Negotiation, Results (Kluwer Law International, 1999) 357, 372. 43. Stephanie Farrior, ‘The Rights of Women in International Human Rights Law Textbooks: Segregation, Integration or Omission?’ (2003) 12 Columbia Journal of Gender and Law 587, 598. 44. Joseph, above n 9, 67; Johan D. Van Der Vyver, ‘Civil Society and the International Criminal Court’ (2003) 2(3) Journal of Human Rights 425, 432. 45. Valerie Oosterveld, ‘The Definition of ‘Gender’ in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice?’ (2005) 18 Harvard Human Rights Journal 55, 76. 46. Steains, above n 44, 372. 47. Roger S. Clark, ‘Crimes Against Humanity and the Rome Statute of the International Criminal Court’ in Mauro Politi and Giuseppe Nesi (eds.) Rome Statute of the International Criminal Court (Ashgate Publishing Limited, 2001) 75, 81. 48. Steains, above n 44, 373. 49. Ibid. 50. Joseph, above n 9, 67-8. 51. Steains, above n 44, 372. 52. International Criminal Court, ICC Elements of Crime, art 7(1)(h), element 4. 53. Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press, 2005) 260. 54. See, eg, Kupreskic et al (Judgment) 14.1.2000 [193]-[195]; Kordic et al (Judgment) 17.12.2004 [102]. 55. Ibid [618]. 56. Ibid [615], [622]. 57. Oosterveld, above n 47, 72. 58. Steains, above n 44, 372. 59. Rome Statute, art 7, subpara 1(h), cited in Darryl Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’ (1999) 93(1) American Journal of International Law 43, 54. 60. Ibid 54. 61. Steains, above n 44, 372. 62. Ibid 237. 63. United Nations Human Rights Council, ‘Report of the United Nations High Commissioner for Human Rights on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’, 19th sess, Agenda Items 2 and 8, A/HRC/19/41 (17 November 2011) [20]. 64. Nicola Pratt, ‘The Queen Boat Case in Egypt: sexuality, national security and state sovereignty’ (2007) 33(1) Review of International Studies 129, 137. 65. Copelon, above n 64, 237; Steains, above n 44, 372. 66. Oosterveld, above n 47, 77. 67. Kelly D. Askin, ‘Crimes within the Jurisdiction of the International Criminal Court’ (1999) 10 Criminal Law Forum 33, 48. 68. Oosterveld, above n 47, 82. 69. Copelon, above n 64, 237. 70. Oosterveld, above n 47, 84. 71. Judge Rosalie Abella quoted in Copelon, above n 64, 237. 72. See: Tadic (Appeal Judgment) 15.7.1999 [285]. 73. Juan E. Mendez, ‘Recent Trends in Transitional Justice’ (Paper presented at the Marek Nowicki Lecture, Helsinki Foundation for Human Rights, Warsaw, 10 November 2010). 74. Pam Spees, ‘Women’s advocacy in the Creation of the International Criminal Court: Changing the Landscapes of Justice and Power’ (2003) 28(4) Signs 1233, 1244-5.

after its formation, the Tribunal was thrust into a highly political context. Nicole Fritz, founder of the Southern African Litigation Centre, believes that the Tribunal was placing its legitimacy in jeopardy by hearing such a controversial case at a time so soon after its inception. Fritz argues that the Tribunal’s early focus should have been on fostering its credibility and stability, by residing over matters that weren’t inherently controversial and political fuelled. This would have encouraged State’s to accept the Tribunal’s authority, making its suspension far more problematic.5

Who Holds the Scales of Justice in Matters of ‘Public Interest’? BY CHANTAL TANNER Since its inception, the Southern African Development Community (SADC) Tribunal has been fraught with controversies. Established as a court of supranational jurisprudence, the Tribunal’s mandate was envisioned to hear disputes arising between member states, with an eye towards protecting human rights and monitoring economic integration. The establishment of the SADC Tribunal was encouraged by the European Union’s experience of dispute settlement institutions as a means of fostering regional integration.1 But for Africa this was not to be the case. In August of 2010, after hearing its second ever case, a Summit of SADC Heads of State suspended the Tribunal. The suspension came in response to the Court’s findings in the matter of Mike Campbell (Ptv) Ltd and Others v The Republic of Zimbabwe.2 The case challenged the violent expropriation of agricultural lands, as ordered by the Mugabe government, which effectively 75

constituted a race-based discrimination against White Zimbabwean citizens.3 The claimant came before the Tribunal arguing that such discrimination is illegal under both Article 6 of the SADC Treaty and the African Union Charter. The defendant refuted this claim, arguing that the acquisition of farming properties was a remedy to residual colonial imbalances. When the SADC Tribunal found in favour of Mike Campbell and the adjoining farmers, Zimbabwe immediately withdrew from the Tribunal and mounted a challenge against its authority. What followed was an announcement ‘that the Tribunal’s role, functions and terms of reference would be reviewed’.4 Essentially, the functionality of the Court was disbanded for an indefinite period. Since the Tribunal’s suspension, the demise of the Court has been linked to the cases that it heard. By trialling highly contentious public interest litigation, so immediately

Fritz’s proposition about the SADC Tribunal’s collapse brings to light key questions about the notion of public interest litigation (PIL). It forces us to consider conceptual issues about who the public are and whether litigants are constructing viable interests for those people that they seek to represent. Indeed, as Fritz has argued in the case of the SADC Tribunal, an inaccurate assessment of the appropriate matter or forum for PIL can lead to an outcome that is not reflective of any public’s interest.

WHO ARE ‘THE PUBLIC’? Two main themes emerge in relation to the question of who constitutes the public: the people and the unrepresented. A common definition of PIL is as a representation of the collective interest of groups of people. According to Edwin Rekosh, founder of the PILnet- the Global Network for Public Interest Law, the term PIL is not intended to describe a particular field of law. Rather, it is used to connote the category of people in which lawyers are representing.6 Litigating for the people is a practice not concerned with a traditional model of lawyering, which focuses on representing the interests of a single plaintiff asserting their individual legal rights. Rather, representing the people usually means that a matter is

not about a particular plaintiff’s private rights, instead it is literally about an interest of the public’s. The essential idea is that PIL is required when rights are threatened on mass.7 Therefore, PIL is defining the concerns of the public as the collective interests of groups of people. Another description of PIL is to represent the unrepresented.8 Drawing on such a definition it is inferred that ‘the public’ are the unrepresented. This conception of the public is underpinned by the notion that everyone is entitled to equal access to justice. For the rule of law to be achieved, society must be governed by a system in which the unrepresented population has access to mechanisms of justice. PIL is thus underpinned by the concept of giving legal assistance to the ‘indigent’. This is rationalised as an interest of society at large as it served to ensure that the rights of marginalised group are protected.9

representing the people usually means that a matter is not about a particular plaintiff’s private rights, instead it is literally about an interest of the public’s. WHAT CONSTITUTES THE PUBLIC’S INTERESTS? Indeed, the mere placement of an issue into the public realm can be enough to categorise it as being of ‘public interest’. This is why some legal scholars argue that the public’s interest is an inescapably political concept which:

“directly engages with postmodernist indeterminacy of law and stepping into the political arena... The public interest is a concept used in a number of intersecting areas of public life. Public interest usually denotes the placement of an issue, interest or information in the public realm.”10 Today, the field of PIL has come to be understood as encompassing a wide range of objectives such as civil rights and liberties, consumer rights and environmental protection. However, traditionally the public’s interest was conceived as an ethical fight for the protection of ‘the little guy’. This notion has been understood to mean counteracting the power leveraged by economic interests. The notion of the common good is another legitimating factor discussed in determining what constitutes a public interest. An issue that is perceived to be for the common good raises broader public concern, by surpassing the interest of the individual in order to encompass a more ‘substantive’ aspect of the interest at stake. This notion is evidenced in the practice of the Public Interest Law Clearing House in Victoria and New South Wales, which determine whether a matter constitutes a public interest by using the criteria of whether an issue requires addressing pro bono publico or ‘for the common good’.

WHO CONSTRUCTS THE PUBLIC’S INTERESTS?

THE VIABLITY OF THE PUBLIC’S INTERESTS

The ‘gatekeepers’ of public interest are those groups constructing the issues that are on the agenda within the public sphere. An explanation of those who are involved in the construction of the public interest is termed civil society.

After considering these definitional conundrums, the question arises as to whether these ‘gatekeepers’ of public interest are accurately assessing the needs of the public and whether there are appropriate ethical boundaries in place around what constitutes a matter of public interest.

Philosopher Jurgen Habermas states that: Civil society is composed of those more or less spontaneously emergent associations, organizations, and movements that, attuned to how societal problems resonate in the private life spheres, distill and transmit such reactions in amplified form to the public sphere. The core of civil society comprises a network of associations that institutionalises problem-solving discourses of general interest inside the framework of organized public spheres.11 Through these processes, described as civil society, it is hypothesised that all of society is enabled to participate in defining what is (and what is not) determined to be a matter of public interest. If civil society is able to work effectively then the public interests is determined as a result of competing values and opinions. As a result of these processes, the concern is not so much with what the public interest is, rather it is an issue of who the participates are active in these defining processes.

Today, the field of PIL has come to be understood as encompassing a wide range of objectives such as civil rights and liberties, consumer rights and environmental protection. However, traditionally the public’s interest was conceived as an ethical fight for the protection of ‘the little guy’. 77

At its core, the concept of a viable public interest requires an investment in the notion that we must be actively changing injustice in the legal system. However, as was exemplified with the collapse of the SADC Tribunal, there are inherent complexities inbuilt in challenging the law based on the premise of a public interest. In some contexts, PIL cases threaten to destabilise broader systemic factors. Such destabliation is generally not within the public’s best interest. In South Africa, the Constitutional Court has now set out criteria for what is defined as a viable matter of public interest. In the case of Lawyers for Human Rights and Other v Minister of Home Affairs and others [2004], Justice Yacoob affirmed thefollowing approach: that an enquiry would examine whether the application involves a live, rather than abstract issue; the nature of the infringed right and the consequences of the infringement; relief sought and whether it would be of general and prospective application; the range of persons who may be affected by a court order, their vulnerability and whether they had opportunity to present evidence and argument to the Court; and whether there is an alternative, reasonable and effective manner in which the challenge could be brought.12 The Courts of Australia have presented a less definitive construct of what constitutes a viable legal matter in the public’s interest.

“even when there is an issue of public interest at stake, the broader consequences of litigation must be evaluated beyond simply the good intentions of the litigant.” Nonetheless, there has been some key commentary on the issue.13 In the case of Tobacco Control Coalition v Philiph Morris (Australia) Ltd [2000] 14 Justice Wilcox emphasised that even when there is an issue of public interest at stake, the broader consequences of litigation must be evaluated beyond simply the good intentions of the litigant. Justice Wilcox’s line of argument was further extended upon in an Australian Law Reform Commission conference entitled Managing Justice. At this conference Former Chief Justice of the Australian High Court, The Honourable Murray Gleeson noted that: If we are setting ourselves the objective of making the process of civil litigation available to a substantially wider group of people ... then we need some understanding of how the system would cope if such wider availability were achieved. If we have no plan for this, then all we are doing is creating greater access to an increasingly inefficient system. 15 These systemic and societal limitations upon what qualifies as a viable matter for PIL are value judgments. Such judgments are intricately embedded within the context of the particular litigation. There can be no single fundamental identity for the public’s

interest. Rather, it is dependent upon a society’s philosophical and cultural constructs of justice and the polity’s responsibility for the individual. Hence, in certain environments, the context surrounding a case may diminish its utility in serving the public’s interest.

CONCLUSION In the case of the SADC Tribunal, after an elongated review process the Court’s jurisdiction has now been reduced to the adjudication of disputes between member states. As such, individuals no longer have a mechanism to bring cases against their governments before the Tribunal. This

alteration of the Tribunal’s jurisdiction effectively leaves it as a hollowed out instrument in relation to the protection of human rights and public interest. The collapse of the SADC Tribunal is an illustration of the broader concerns at play when raising matters of PIL. It exemplifies that, with no definitively measureable answer to what constitutes ‘public interest’, the term can merely be used in an aspirational sense. The meaning of ‘public interest’ is adjustable to serve the intent of the user. Therefore, the notion of a viable matter of public interest is inherently unstable and bound to change over time and across political borders.

References

Creating value through a mutually beneficial relationship BY SHARANYA SRIKANTH

1. Oliver C. Ruppel & Francois X. Bangamwabo, The SADC Tribunal: a legal analysis of its mandate & role in regional integration, Chapter 8, Monitoring Regional Integration in Southern Africa Yearbook 2008. 2. SADC (T) Case No. 02/2007. 3. For further reading, see ‘Mike Campbell Obituary’, The Economist, 20 April 2011. 4. Nicole Fritz, ‘SADC Tribunal: Will regional leaders support it or sabotage it?’, OSISA, http://www.osisa.org/sites/default/files/sup_files/SADC%20Tribunal.pdf 5. South African Foreign Policy Initiative, Open Society Foundation for South Africa, ‘The SADC Tribunal: removing the scales of justice’, 1 March 2013, Pretoria South Africa, Conference Summary 6. Edwin Rekosh, Who defines the public interest? OF SUR INTERNTATIONAL JOURNAL OF HUMAN RIGHTS, No 2, 2005, pg 70. 7. Paula O’Brien, Changing Public Interest Law OF ALTERNATIVE LAW JOURNAL, Vol 36, No 2, 2011, pg 82. 8. Jeremy Rabkin, Public Interest Law: Is it law in the ‘Public Interest’? OF HARVARD JOURNAL OF LAW AND PUBLIC POLICY, Vol 8, 1985, pg342. 9. Penny Martin, Defining and Redefining the concept of practicing in ‘the public interest’ OF ALTERNATIVE LAW JOURNAL, Vol 28, No 1, February 2003, pg 4. 10. Penny Martin, supra notes 5, pg 4. 11. Edwin Rekosh, supra note 1, pg 73. 12. 12 ZACC at para 16. 13. Andrea Durbach, Defining Pro Bono- Challenging Definitions, For the Public Good: The First National Pro Bono Conference, Canberra, 4-5 August 2000, pg 1, available at http://www.piac.asn.au/sites/default/files/publications/extras/DefiningProBono.pdf (last visited 23 Jan). 14. FCA 1004. 15. Andrea Durbach, Defining Pro Bono- Challenging Definitions, For the Public Good: The First National Pro Bono Conference, Canberra, 4-5 August 2000, pg 1, available at http://www.piac.asn.au/sites/default/files/publications/extras/DefiningProBono.pdf (last visited 23 Jan). 79

Following the implementation of the key recommendations made by the Expert Panel on Asylum Seekers on August 13 2012, it has been made apparent that such preventative measures needed to be taken in order to combat the often fatal consequences associated with asylum seekers risking their lives on dangerous boat journeys to Australia. These vulnerable persons come to developed nations like Australia based on the enormous and unfounded promises indoctrinated into them by sophisticated networks of human traffickers. There is no denying the fact that such drastic and stringent measures needed to be taken in order to send a clear message to the international refugee community that there are no advantages given to asylum seekers in engaging with people smugglers. While the aforementioned laws were necessary in order to tackle the pertinent global issue of human trafficking, such amendments alone are not sufficient in targeting this vicious cycle that has cost some of the most vulnerable members of war-torn

regions, particularly Sri Lankan Tamils that account for a large portion of this figure, their livelihoods and even lives. The cost of charter flights that transport asylum seekers to Nauru and overcrowded detention centres in Australia is now costing taxpayers an average of at least $6.1 million a month, which includes the costs of the new policy of returning these boat people to Sri Lanka. On average, offshore processing costs approximately $1 million per asylum seeker annually, with almost $400 million being expended on government contracts. Official tender notices from the Department of Immigration reveal a total of 57 tenders for special air charter services have been issued at a cost of $36.7 million for the six months to February 15, 2013. One tender marked “to various locations” was issued at a cost of $15 million for 23 days of service and is believed to include the transfer of asylum seekers to Nauru and the return of failed Sri Lankan asylum seekers. While these exuberant costs 80

Volunteering at the Organisation for Ealam Refugee Rehabilitation (OfERR) in Chennai, India over the Summer of 2012-13, has led me to the belief that Australia has the potential to become an international figurehead in dealing most effectively with people smugglers. This can be achieved through the combination of various mutually beneficial initiatives as well as the inclusion of enabling laws in the future regarding Australia’s stance on refugees and asylum seekers to allow for freer movement between the war-ravaged region of Sri Lanka and Australia. Australia, having one of the largest Sri Lankan Tamil populations in the world outside of the island nation and presenting itself as a global leader in pressuring the Sri Lankan government in regards to war crimes allegations, is indeed capable of adding further value to its relationship with the island nation. Such value can be found through going beyond the boundaries of the one-dimensional offshore processing policy currently in place, and instead, taking a more multi-faceted approach. I believe that this can be facilitated through the Australian Government assisting NGO’s like OfERR in targeting the issue of human trafficking at the root by creating greater awareness within the camps through people-to-people transparency.

It is a staggering figure that approximately one third of the people who attempted to enter Australia by boat from January to October in 2012 were Sri Lankan Tamils. Nevertheless, it is not my intention to dwell on statistics, but rather to share my recommendations based on my first hand experiences with Sri Lankan Tamil refugees. As a second year law student currently studying at the University of New South Wales, member of the Sri Lankan Tamil Diasporas and Australian citizen, I strongly believe that the Australian Government has the financial resources and humanitarian capacity to follow-up Australia’s new stance regarding offshore processing. As a nation, we can be instrumental in remedying the concern of human trafficking by playing a greater humanitarian and altruistic role through assisting these asylum seekers in a valuable return to their homelands. This can thereby be achieved through increasing the nation’s esteem as a forerunner in asylum seeker policy innovation and role model to fellow developed nations through their facilitation of humanitarian initiatives, thus assisting Sri Lankan Tamil refugees and asylum seekers in their return to the motherland.

I. ENDING THE CYCLE OF HUMAN TRAFFICKING AT A GRASS ROOTS LEVEL It has now been established that it is only through the creation of a safe environment back on the island that word can be spread about the dangers of human trafficking, where more often than not, the most vulnerable, namely Sri Lankan Tamil asylum

IT IS only through the creation of a safe environment back on the island that word can be spread about the dangers of human trafficking 81

seekers in desperate situations, are lured onto boats under false grounds. The only way to remedy such a situation is through word of mouth and changing these vulnerable persons’ perception of human trafficking in order to prevent them from engaging in activity that is endangering their lives, the lives of fellow family members and even their livelihoods as they often drain their entire life savings. However much NGO’s and state government officials (namely those in Tamil Nadu) inform refugees of the dangers of human trafficking after first-hand interaction with numerous refugees within the camps, it is my belief that nothing would resonate with them more than the stories of fellow asylum seekers who have experienced firsthand the dangerous boat journeys and the lifetime of indebtedness they will endure in their attempt to repay these human traffickers. This phase of the process looks at a more permanent solution of ending the cycle of human trafficking through facilitating more substantial dialogue between asylum seekers and potential asylum seekers, particularly regarding the offshore processing of asylum seekers on Nauru. Furthermore, it is proposed that substantial incentives need to be provided by the government as a method of encouraging people to come forward with information about traffickers. This information will prove vital to the Australian Federal Police and will subsequently allow for the infiltration of these complex networks, eradicating the problem at the root. After a series of conferences that I partook in while volunteering, it was concluded that the challenge of human trafficking must be tackled through sustained awareness building programs among the vulnerable persons within the refugee community. Likewise, it also applies to persons on the island who have fallen victim to human traffickers previously. The activity that is proposed is to sustain regular discussions at the camp level

PHOTO by Srither narayanasamy

may be necessary, the question that needs to be asked is how this use of resources can be made more valuable to both Australia and the vulnerable asylum seekers. This article seeks to provide recommendations in answering this pertinent question.

it is proposed that substantial incentives need to be provided by the government as a method of encouraging people to come forward with information about traffickers.

The vulnerable persons in the refugee community is threefold: 1. Family members of persons who have already got across to Australia. 2. Persons who have attempted to go to Australia, however failed in their efforts. These persons must then bring in five recruits if they are to be included in the next batch. 3. Persons who are not sure as to what they should do about preparations for return to the island. This notion of information sharing will also create awareness of the noble cause undertaken by Australia regarding the government’s consistent efforts in protecting those persons whose lives are in danger. NGO’s and government bodies must consequently play an instrumental role in informing refugees, who are considering boarding a boat to Australia, illuminating the notion that in doing so, they are harming this noble cause and tarnishing the respected name of Sri Lankan ex-patriots residing in Australia. Australia has been extremely generous in accommodating one of the

world’s largest Sri Lanka Tamil ex-patriot populations and such a notion must be shared within refugee camps to ensure that such a relationship should not be abused or taken for granted. The most effective antidote to human trafficking has been the sharing of information by those who have attempted to reach Australia and decided to return to Sri Lanka as they were convinced that they were cheated, hence on a person-to-person basis. This information is then to be shared at the discussions that take place at camp levels. This information is also made available to the government functionaries who are pertinent in the process of putting a stop to human trafficking. A further antidote to the human trafficking efforts is the discussions among refugees at the camp level as to what would facilitate their return to Sri Lanka. The positive approach of well informed refugees preparing for return, strengthened by the success stories of persons who have returned to the island, have great potential in saving people from being cheated into attempting to travel illegally to foreign countries like Australia.

II. RESTORATION OF LIVELIHOOD AND HOMELAND THROUGH THE PROVISION OF SEED MONEY The staggering figures associated with transporting refugees back to their homelands is likely to increase in the future. Nevertheless, it is not my intention to recommend a change in legislation. Rather it is proposed that through the creation of

It is clearly evident that there is substantial need for human capital on the island and these people could become immensely valuable if they were equipped with the correct resources that Australia could easily provide. 83

PHOTO by Marmontel

regarding the dangers and unacceptability of human trafficking. This would therefore enhance the impact of the process because the effort against human trafficking would be targeted at the grass root level, in addition to a governmental or organisational level. It is this discussion that will ultimately assist the Australian government in protecting our shores and alleviating this perpetual cycle.

a more value-laden relationship between Australia and Sri Lanka, the economic costs associated with transporting asylum seekers both to Nauru and back to their homelands can be extended to end the cycle of human trafficking. In providing Sri Lankan returnees with seed money, temporary housing and greater security for Tamils in the North and East provinces of Sri Lanka, the Australian government would in turn, be able to play a pivotal role in boosting entrepreneurship and economic prosperity among returnees. It is my strong belief that this would be a monumental step in putting an end to human trafficking, providing an indication to these vulnerable persons that their homeland does indeed provide them with substantial opportunities for livelihood, in stark contrast to the high risk notion of boarding a boat to Australia. Through OfERR’s continuous work in the camps and the open forum which they have created with close to 70 000 refugees in Tamil Nadu, India, it is evident that the refugee community is largely ill-informed of the situation back in their homeland and

it is this lack of awareness that has caused many of them to seek refuge elsewhere. The creation of more positive stories regarding those who have returned to the homeland will encourage others to endure the same process and further dissuade them from engaging with people smugglers. It is here that the Australia Government has the opportunity to intervene and add value to the process of returning asylum seekers to their homelands in adopting a greater humanitarian role, thus assisting those most vulnerable. This could possibly be exercised through greater involvement of the Australian High Commission in the North and Eastern provinces in Sri Lanka for the purposes of making the Tamil people feel safe in their homeland, previously dictated by government forces. Such a notion can only be achieved through greater understanding and awareness on the part of the Australian Government regarding the needs and scope of the rebuilding process that needs to take place in warravaged regions, specifically Tamil dominated 84

areas. There needs to be the continuation of sustained development of projects such as: the rehabilitation of Kankesanthurai Harbour, the rehabilitation of Palaly Airport, the repair and reconstruction of hospitals and schools, setting up of Vocational Training Centres, the construction of the Cultural Centre in Jaffna and finally, the restoration of railway lines and of the Duraiappah stadium in Jaffna. It is clearly evident that there is substantial need for human capital on the island and these people could become immensely valuable if they were equipped with the correct resources that Australia could easily provide. Furthermore, the inclusion of such prominent infrastructure in these Tamil dominated regions of Sri Lanka will provide the Sri Lankan Tamil population with a sense of confidence in returning to their homeland and provide a much needed boost to the declining businesses in these regions.

III. UTILISATION OF HUMAN CAPITAL THROUGH PROVISION OF TEMPORARY JOBS FOR PURPOSE OF SKILL BUILDING In accordance with the work conducted by OfERR, I would propose the provision of temporary working visas for asylum seekers in Australia in order to improve employability and confidence levels of these vulnerable persons when they eventually return to Sri Lanka. In order for this to become a viable option, the communication and transportation channels between Australia and Sri Lanka need to become significantly more flexible.

Australia would undoubtedly benefit from the cheap labour intensive positions that these Sri Lankan workers could fill. This would therefore provide the Australian Government with a much more economically beneficial strategy, whereby the government would not have to worry about costs associated with permanent residency and eventual citizenship, but rather would provide temporary working visa. Similar initiatives have proven highly effective in neighboring nations of Singapore and Malaysia, who have built a strong working relationship with the small island nation, where individuals travel to foreign countries on fixed contracts. This would become a clear example of a mutually beneficial relationship. Additionally, the aforementioned strategy would also allow for the restoration of the Tamil population in Sri Lanka. By increasing refugee intake and moving the Tamil population elsewhere in the world, we are simply avoiding the domestic problem back at home, more specifically, one that is becoming more and more pertinent as Tamils continue to feel vulnerable in their homeland. In order to combat this issue, we can use the Australian Government to assist the Sri Lankan Tamil population with temporary jobs, but also to ease them back into their life on the island and remove the label of “victim”. In taking on a humanitarian role in assisting asylum seekers and in adding greater value to the process of eradicating human trafficking, we propose the inclusion of vocational training and education that the Australian Government can provide to those detained.

Once they have made the journey home, the skills, which they have obtained through temporary employment in Australia, increase their employability in their homeland. 85

We believe that this will prove to be highly effective as these vulnerable persons become no real burden to the Australian people, while simultaneously equipping them with the skills for a successful return to their homeland. Once they have made the journey home, the skills, which they have obtained through temporary employment in Australia, increase their employability in their homeland. We would consequently urge the government to include asylum seekers in more initiatives such as: the Australian Homestay Network, Community Placement Network, Homestay Helping Hand and Community Placement Network Assistance Trust, whereby asylum seekers are given the opportunity to take on labour intensive tasks that do not necessarily require a niche skillset. The provision of jobs to these vulnerable persons can also be extended to other manual labour jobs such as those in the agriculture and farming sectors. Furthermore, through my personal experiences of working with refugees through the educational and women’s empowerment sectors at OfERR, it became apparent to me that however simple it may seem, it was the human contact and personalised information sharing that proved the most effective in establishing awareness about particular issues. Through attending a communication and leadership workshop for tertiary students organised for Trichy region refugees in Tamil Nadu, I was able to witness first hand the intellectual brilliance of refugee students, many of who came from extraordinary familial circumstances. Upon learning that I was visiting from Australia, through my interactions with the students, I became aware that many were curious about the opportunities offered to refugees here in Australia. While the lives of these refugees were clearly not in danger, it seemed understandable that they would be curious as to the opportunities presented by the developed world. I believe that the potential

presented by these refugees, both skilled and unskilled, could prove to be a great asset to the Australian workforce and would also serve to reiterate Australia’s commitment to assisting refugees and asylum seekers alike in making a meaningful return to Sri Lanka.

IV. CONCLUSION Over the next four years, Australia’s offshore processing units on Nauru and Manus Island are expected to cost taxpayers $2.3 billion. This is a comparatively exorbitant amount given the 2013 UNHCR global budget is slightly more at $3.7 billion, which includes funding for war-ravaged regions like Syria, Mali and Afghanistan. While some may argue that this figure was inevitable and such a stringent policy was the only viable option, greater value needs to be added to this process in order to end the deathly cycle of human trafficking. Through my first hand experiences of working with OfERR regarding the protection and welfare of Sri Lankan Tamil asylum seekers and refugees, it has become apparent that a lack of awareness, information and miscommunication is what has facilitated the booming human trafficking industry amongst refugees. Simultaneously, given the labour capacity possessed by these vulnerable persons and the lack of security for refugees and asylum seekers in Sri Lanka, Australia has the opportunity to play a much greater humanitarian role in returning these refugees back to their homeland. Given the mutually beneficial aforementioned initiatives, the Australian Government has the potential to add greater value to their pre-existing offshore processing policy, concurrently assisting these vulnerable persons in making a meaningful return to Sri Lanka and ending the vicious cycle of human trafficking.