The past year has been incredibly tumultuous, having reset the international stage and delivering incredibly unexpected political outcomes. From an international legal perspective, while events such as Brexit, Donald Trump’s election, and the crisis in Syria have undoubtedly raised important legal questions and will likely change international law in the future, there have been numerous other significant developments. More
The politics of nuclear disarmament have, in recent times, simmered as a threat to the international order, enlivened every so often by a new round of talks or a major push for reform. On rare occasions, the issue has spilled into the international legal sphere. More
In the post-9/11 zeitgeist, the ever-present fear of terrorism has reignited debate regarding whether a State has the right of self-defence against attacks by non-State actors. As Australia targets non-State actors such as ISIS and Al-Qaeda fighters in self-defence, the legality of such actions in international law must be questioned. More
With you… for whatever? The Chilcot Report on the United Kingdom’s Involvement in the Iraq War and its Aftermath – Luke Rowe
On 11 September 2001, 3000 people were killed in co-ordinated terrorist attacks in New York, Washington and Pennsylvania. More
The road to European Union membership is notoriously long and difficult; its conditions are many and, if successful, its speedy rewards scarce. Few nations are more familiar with this truth than Turkey. More
On 9 March 2016, the Andrew & Renata Kaldor Centre for International Refugee Law, the International Law Association (Australian Branch) and the UNSW Environmental Law Group will co-convene an expert panel discussion on International Law and Sea Level Rise: Human Rights, Displacement, Maritime Zones and Biodiversity.
The panel of expert speakers include:
- Associate Professor Stephen Humphreys, LSE: international human rights law;
- Professor Jane McAdam, UNSW: international law and forced migration; and
- Professor Rosemary Rayfuse, UNSW: international environmental law and law of the sea.
The event will be chaired by Christopher Ward SC, President of the Australian Branch of the International Law Association.
The event will start at 1 pm and finish at 2 pm and will be held at the Law Staff Common Room, Level 2, Law Building UNSW (please see reception on Level 2 for directions).
The event is free. To register pleaseclick here.
A conversation with Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions — Sophocles Kitharidis and Laura Baykara
On 8 October 2015, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Professor Christof Heyns, gave a rare lecture to the International Law Association (Victorian Chapter) during his three-day visit in Australia. Having held this UN mandate for the last five years, Professor Heyns discussed the ways in which his mandate functions and its coverage of the scope and limitations of the right to life, and provided an overview of the central themes that addressed by the mandate, including:
- the need for law reform on the use of force by law enforcement officials in most countries in the world;
- the development of guiding principles on the management of demonstrations for the Human Rights Council;
- the demise of the death penalty; and
- the emergence of new technologies that affect the right to life, both in terms of weapons and technologies that can be used to protect life.
In 1982, the Commission on Human Rights put forward resolution CHR Res 1982/29 to the Economic and Social Council requesting the appointment of a special rapporteur with a focus on the practices concerning summary or arbitrary executions. The mandate was established under resolution ESC Res 1982/35.
Ten years later, resolution CHR Res 1992/72 widened the mandate to include ‘extrajudicial’ as well as ‘summary or arbitrary’ executions. The amendment indicated the importance placed by members of the Commission on Human Rights to include all violations of the right to life as guaranteed by the majority of international human rights instruments (further information available here).
Professor Heyns discussed the importance of the mandate covering all countries, irrespective of whether a state has ratified relevant international conventions. He noted his most recent country visits to Gambia, Papua New Guinea, and Ukraine.
In resolution HRC Res 26/12, the United Nations Human Rights Council underscored the importance of the UN’s chief investigator to carry out their mandate in the following way:
(a) To continue to examine situations of extrajudicial, summary or arbitrary executions in all circumstances and for whatever reason, and to submit his or her findings on an annual basis, together with conclusions and recommendations, to the Human Rights Council and the General Assembly, and to draw the attention of the Council to serious situations of extrajudicial, summary or arbitrary executions that warrant immediate attention or where early action might prevent further deterioration;
(b) To continue to draw the attention of the United Nations High Commissioner for Human Rights to serious situations of extrajudicial, summary or arbitrary executions that warrant immediate attention or where early action might prevent further deterioration;
(c) To respond effectively to information which comes before him or her, in particular when an extrajudicial, summary or arbitrary execution is imminent or threatened or when such an execution has occurred;
(d) To enhance further his or her dialogue with Governments, as well as to follow up on recommendations made in reports after visits to particular countries;
(e) To continue to monitor the implementation of existing international standards on safeguards and restrictions relating to the imposition of capital punishment, bearing in mind the comments made by the Human Rights Committee in its interpretation of article 6 of the International Covenant on Civil and Political Rights, as well as the Second Optional Protocol thereto;
(f) To apply a gender perspective in his or her work.
Professor Heyns articulated the importance of the operational duties of the Special Rapporteur as an advisor to the UN. He underscored the need for rapporteurs to secure invitations from member states where investigations are required and the challenges associated in obtaining approval for the country visits, such as governments not replying or delaying responses due to political pressure and sensitivities. One would also assume that further challenges would include the rapporteurs’ ability to maintain an independent and impartial position throughout their investigation.
Drones, weapons systems and the right to life
Professor Heyns explored the concepts of drones and autonomous weapons systems (AWS) and the complexities (both legally and morally) around how these systems have the ability to make an accurate decision concerning the use of force against human beings — both within and outside armed conflicts, such as those undertaken by law enforcement agencies. The concept of the ‘weapon becoming the warrior‘ underscores the legal and ethical quandaries around the new mechanisms for the use of force. Within the context of law enforcement, intervention (and not human intervention) can be used as a form of non-lethal action, but questions still exist around the ability of a machine making a judgement on when and how the intervention is to be used.
In examining the use of armed drones and AWS from a human rights approach, accountability comes to the forefront of the debate (where a violation of the right to life is evident). Otherwise, it can be classified as an empty normative system. Arguably, since the AWS will have the ability to make judgements with the ‘human’ element absent, it may be that human beings may not be held responsible for collateral damage or for circumstances where the armed drone or AWS fails its target or mission; this is due to the importance of meaningful responsibility depending on meaningful control (see also Professor Heyn’s comments earlier this year) (http://www.ohchr.org/Documents/Issues/Executions/CCWApril2015.doc).
Professor Heyns further examined an AWS’ ability to accurately target legitimate objects. The ability for a machine to make life and death decisions is a growing area of debate concerning the right to life and human dignity. Questions concerning the dignity of the targeted not being affected and the machine’s decision-making process arise as areas for further review. However, it is important to note that even though the machine is making the decision, a human element will also continue to exist within the chain — whether it be the individual who created the structure of the machine, designed the machine, programmed the machine or released the machine to undertake the attack.
Professor Heyns discussed the right to life in the context of the use of force, political killings and the death penalty. The right to life is a precondition to other human rights — for example, political killings against journalists have a chilling effect on a number of other human rights. However, it cannot necessarily be assumed that the right to life is the supreme right vis-à-vis other rights, given the debate surrounding armed drones and AWS. Where the right to life is accepted as the supreme right, it is done on the condition that it is a right that is a prerequisite of all other existing rights. This can be seen in the example of armed drones and the use of force where the drones themselves are not illegal. However, when implementing them as a weapon of force, ‘they may be easily abused and lead to unlawful loss of life, if used inappropriately’ (as stated here by UN Special Rapporteur on counter terrorism, Ben Emmerson).
The presentation concluded with a number of questions from the audience. On behalf of the International Law Association (Victorian Chapter), we extend our greatest appreciation and thanks to Professor Christof Heyns for making this event possible.
This article is not intended to be a transcript of the presentation.
Laura Baykara holds a Bachelor of Laws (Hons) from Monash University and is a solicitor at Herbert Smith Freehills.
Sophocles Kitharidis is a public international law consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victorian Chapter) and holds a Master of Laws in Public International Law from the University of Melbourne.
ILA Event – International Rules on the Use of Force: Implications for Russia + Ukraine, China + South and East Chinese Seas – 20 August 2015
The ILA is pleased to announce that Dr Alison Pert will deliver a seminar which will cover the history and extent of the maritime territorial claims of China in this area, the competing claims from other states in the region, the arbitral proceedings brought by the Philippines, and the legal status of the islands being created or expanded through Chinese dredging and land reclamation.
Dr Pert will also briefly review the recent history of Russia’s intervention in Ukraine, focussing on the legal justifications advanced by Russia. In light of the status of Russia and China as permanent members of the UN Security Council, protected from Security Council censure by their veto power, Dr Pert will raise the question of the role of international law, and the UN Charter system of collective security in particular, in this new post-post-Cold War era.
The event will be held at 5.30 pm (for a 5.45 pm start), 20 August 2015 at Marque Lawyers, Level 4, 343 George Street, Sydney.
Please RSVP to Phoebe Saintilan (firstname.lastname@example.org) by 18 of August 2015.
A copy of the event flyer is accessible here.
The Department of Immigration and Border Protection issued a discussion paper entitled ‘Australian Citizenship – your right, your responsibility’ raising several questions, including whether Australia should deprive Australian mono and dual nationals of Australian citizenship.
This submission by Stephen Tully – a member of the ILA’s National Management Committee – reviews international legal material and the UK’s experience relevant to the questions raised, identifies the applicable prerequisites, standards and safeguards, and considers some possible domestic and international consequences for affected individuals and Australia. It is available here.
Tully states in the executive summary of his submission that:
- Proposals to deprive Australians of citizenship which draw upon legislation taken from the United Kingdom (UK) must appreciate the particular international and national background to that legislation. The UK position cannot be transplanted into the local context without appropriate adaptation.
- An outcome which ensures that former Australian nationals are not rendered stateless would be consistent with international law on preventing statelessness. The deprivation of Australian nationality for dual nationals would be consistent with that objective.
- The international legal consequences of depriving dual national Australians of their Australian nationality must be understood. Other States may not be obliged to recognise and give effect to the deprivation of Australian nationality by Australia. With respect to both citizenship deprivation and the expulsion of aliens, Australia must also comply with existing international law (on statelessness, nationality and the protection of human rights) in addition to emergent international law concerning the expulsion of aliens.
Last month, the United Nations High Commissioner for Human Rights released a report which concluded that the Islamic State had perpetrated gross violations of international criminal law, including acts amounting to possible genocide. The High Commissioner recommended that Iraq accept the jurisdiction of the International Criminal Court (ICC) to investigate and prosecute crimes perpetrated within its territory under article 12(3) of the Rome Statute.
This suggestion triggered international debate over what role the ICC could and should have in prosecuting Islamic State leaders.
They key issue in this debate is whether the Security Council should refer the ongoing situation in Iraq and Syria to the ICC. This has been previously advocated by UN human rights chief, Zeid Raad al-Hussein, and France has recently declared its support for such a resolution.
On 2 April 2015, the New York Times published an article by John Bellinger III — a former US legal adviser to the National Security Council and State Department — supporting a Security Council referral. For international lawyers, Bellinger’s most compelling point is that the US and UK should not limit themselves to merely prosecuting Islamic State leaders for crimes committed against their citizens under their respective domestic legal systems. An international prosecution by the ICC is necessary because:
[t]he group is engaging in widespread and systemic attacks against civilians in Iraq and Syria that constitute grave international crimes (including genocide)
Bellinger’s article is flecked with controversial political statements, which are picked up and attacked by Professor Kevin Jon Heller in a post on Opinio Juris. Heller disagrees with Bellinger’s statement to the effect that it is more sensible for the ICC to investigate the Islamic State rather than have them investigate the US or the UK over treatment of detainees or Israel in respect of the 2014 conflict in Gaza. Heller argues that ‘the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable’.
Heller also takes issue with a procedural point asserted by Bellinger — that a Security Council referral would be the only way to prosecute Islamic State because Iraq and Syria are not parties to the Rome Statute. Heller responds that a referral is unnecessary, because the ICC’s jurisdiction is not territorial: it can prosecute the nationals of any state party to the Rome Statute. As some prominent Islamic State figures are citizens of states who are party to the Rome Statute — like the infamous Jihadi John who is a British citizen — the ICC already possess a limited jurisdiction that would enable it to perform prosecutions.
However, on 8 April 2015, ICC Prosecutor, Fatou Bensouda joined the fray and stated that ‘[t]he jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage’.
Perhaps in a nod to the members of the Security Council, Bensouda goes on to remark that:
The decision of non-Party States and the United Nations Security Council to confer jurisdiction on the ICC is, however, wholly independent of the Court… I stand ready to play my part, in an independent and impartial manner, in accordance with the legal framework of the Rome Statute
However, the immediate goal of the international community is not the prosecution of Islamic State’s leadership, but the protection of Iraqi and Syrian populations and the ongoing military campaign against the extremist group.