Book Review: Is cyber-election interference a violation of the right to self-determination? Jens Ohlin’s ‘Election Interference’ provides a valuable correction to the debate – Robert Clarke

With the deluge of spurious ‘election fraud’ claims following the 2020 US Presidential Election, the genuine issue of foreign election interference has been somewhat overshadowed. However, international lawyers should not lose sight of this emerging threat which, accelerated by new technologies, is capable of forming the basis of genuine ‘election fraud’ in the years to come.  Despite much debate in the years following the Russian disinformation campaign in 2016, international lawyers have yet to arrive at a consensus as to if, and how, international law can evolve to deal with the challenges of modern election interference.  In his timely new book ‘Election Interference’, Jens Ohlin puts aside rhetoric of ‘acts of war’ frequently invoked by sabre-rattling pundits and politicians, to investigate a number of alternative doctrines of international law that could provide the answers to these questions. This book review will consider Ohlin’s approach to the two key doctrines of international law he discusses with respect to the 2016 Russian interference campaign: non-intervention and self-determination. 

Non-intervention

Unlike other international law scholars, (see for example Michael Schmitt and Ido Kilovaty) Ohlin is sceptical that cyber-election interference constitutes a violation of the doctrine of non-intervention. To constitute a violation of this principle, interference must first interfere with a state’s sovereign domaine réservé, and second involve an element of coercion [205]. That the conduct of elections is part of a State’s domaine réservé is accepted in a general sense, as well as in the context of cyber-interference (Rule 26 Commentary [20]). However, Ohlin questions whether cyber-election interference has ‘the essence’ of the principle of non-intervention, that of coercion.

The difficulty with applying the doctrine of coercion to cyber-interference operations like that conducted by Russian individuals in 2016 according to Ohlin, is identifying who exactly who is being coerced. It cannot be said that the state itself is actually being coerced, because the results of the election will ultimately still reflect the views of its citizens, irrespective of whether they are improperly influenced by foreign meddling. Cyber-influence operations are therefore often characterised as ‘distortion rather than coercion’. 

Ohlin describes the failure of other international law scholars to properly reckon with this as reflecting a ‘teleological’ approach in the face of an ‘absence of evidence’, writing ‘information operations are not coercive simply because one hopes they are’.

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Call for Submissions: Australian International Law Journal

The Australian International Law Journal (AILJ), published by the International Law Association (Australian Branch), is calling for papers on topics of public or private international law for its forthcoming volume. 

Papers should range from between 6,000 and 12,000 words. Case notes (2,000-3,000 words) and book reviews (1,000 words) within the areas of public or private international law are also welcome. 

The AILJ offers established and developing scholars the opportunity to publish high quality refereed scholarship on topics of public and private international law. The ILA is a global organization, which plays a pre-eminent role in the progressive development of international law. From a modest beginning in 1983 as Australian International Law News, the AILJ has become a peer-reviewed law journal of international standing. 

Papers on any topic of public or private international law should be submitted by email to the Editor in Chief at a.cassimatis@law.uq.edu.au. The deadline for submissions is 1 October 2021. Accepted submissions will be published in Volume 28 of the AILJ. 

More information on the submission of articles, notes and reviews is available in the AILJ Guidelines for Authors. Further information on the Journal and how to subscribe is available on the ILA (AB)’s website.

Event Re-Cap: Reflections on the International Criminal Justice System: In Conversation with David Re – Crystal Ji

The NSW Society of Labor Lawyers and the Muslim Legal Network NSW recently hosted an in-conversation event with David Re, who was the Presiding Judge of the Trial Chamber of the Special Tribunal for Lebanon (STL) from 2013 to 2021. In this role, Mr Re presided over the first international terrorism trial, which arose from the 2005 terrorist attack targeting former Lebanese Prime Minister Rafik Hariri. Three accused were acquitted, with one accused, Salim Ayyash, being convicted for his role in the attack. The judgment of the Chamber is available in full online and has previously been analysed on the ILA Reporter. Prior to being a judge of the STL (2010-2021), Mr Re was a judge of the Court of Bosnia and Herzegovina in Sarajevo (2008-2010) and a prosecutor at the International Criminal Tribunal for the Former Yugoslavia (2002-2008).

Mr Re traversed a number of topics during the course of the discussion, ranging from discussing the hybrid nature of the STL, to reflecting on the future of international criminal courts and international criminal law. Points of interest are highlighted below.

The hybrid model of the STL

The hybrid model of the STL was discussed. The STL was set up pursuant to a 2006 agreement between Lebanon and the UN and Security Council Resolution 1757, with Lebanon to pay 49% of the budget. The decisions of the STL are binding on all UN member states, given the STL’s establishment pursuant to a UN Security Council Resolution. It is a unique standalone institution with headquarters in the Hague, established there pursuant to an agreement with the Dutch government, and also an office in Lebanon, pursuant to an agreement with the Lebanese government. The STL features both Lebanese judges and international judges of different nationalities, and applies the substantive law of Lebanon while also applying international criminal procedure laws. The latter is itself a hybrid of the procedures used in civil and common law systems.

There are distinct advantages to the hybrid model of the STL, which allows international personnel to work with national personnel. These include the fact that international personnel bring money and resources, expertise, standards, witness protection, forensic and investigatory techniques to transitional justice countries that are often small, impoverished and affected by corruption. In the case of the STL, the Lebanese judges who were appointed could see what the procedures and standards are in the international legal system, and the international judges could safeguard the maintenance of independence and impartiality of the STL’s judicial decision-making.

However, the limitations of the model were also discussed. Although the judges are able to maintain independence and impartiality, there are forces that may have shaped the prosecutorial effort at the investigative stages of a trial. Choices as to which aspects and persons to investigate over others are entirely outside the judges’ purview, as are decisions as to who to name in the indictment. Questions about why the indictment for the trial Mr Re presided over did not extend wider or higher up the chain of command of Hezbollah remain unanswered. 

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Event: ‘Armed Conflict, Technology and Human Rights’, 26 August 2021

The International Law Association (Australian Branch) is pleased to announce its second in a series of online lunch-time panels showcasing the work of early career international lawyers.

This event follows the first panel on “Intersections of International Environmental Law with National Jurisdictions” featuring speakers Carina Bury of Universität Hamburg and Millicent McCreath of UNSW Law & Justice, chair Justice Nicola Pain of the Land and Environment Court of New South Wales, and commentator Dr Emma Carmody of the Environmental Defenders Office and Legal Advisor to the Secretariat of the Ramsar Convention on Wetlands on 22 July 2021. A recording will be made available of this session.

This second panel is focused on “Armed Conflict, Technology and Human Rights” and features speakers Aneta Paretko of the University of Melbourne speaking on ‘A Human Rights Framework for Dealing with the Female Foreign Fighters of Islamic State’ and Helen Stamp of the University of Western Australia presenting on ‘Meaningful Assessments of Liability for Incidents involving Autonomous Weapons Systems: Informing Traditional Legal Forums through the Use of Algorithmic Accountability’. The event will be chaired by Molly Thomas of the International Criminal Court and the ILA Reporter and will feature commentator Dr Simon McKenzie of the University of Queensland. The panel will be held online on Thursday 26 August 2021 from 1:00 pm to 2:00 pm AEST. Registration is free and through Eventbrite.

Future panels (with further details to be circulated) include ‘International Criminal Law: Practitioner Perspectives’ (September 16) and ‘International Investment Law’ (October). A flyer is included below.

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Punching Up or Down: International Law’s Fraught Relationship to History As Illustrated Through Cultural Heritage – Lucas Lixinski

The “turn to history” in international law makes us more aware of our role in creating the history with which we grapple. Cultural heritage law in particular plays a direct role in making and querying the historical record, and recent controversies in Australia surrounding the destruction of Indigenous heritage and the obstinate protection of colonial heritage showcase our responsibility in ‘selecting’ the past for the benefit of present and future generations. Australian can and should do better, and international law offers tools to help us make better choices about the history we protect.

International law has long had a difficult relationship with the past. While many international lawyers fancy themselves historians, with a much-discussed “turn to history” in international legal scholarship, there is not enough recognition that international law freezes history in time, erases difficult pasts, and allows us to perpetuate injustice at home and globally. Cultural heritage law illustrates this relationship in vivid detail, while also making it clear that the law still has a role it can play in constructing a better present and future on the basis of that past. As Anne Orford argues, we have a role in using history to make, rather than simply understand, international law.

In Australia, two examples underscore the inconsistencies of international law’s relationship to history: first, the destruction of Juukan Gorge, which, decried as it was, was not illegal at the time it happened; and second, the calls for the tearing down of Captain Cook monuments, which are in fact illegal.

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Space Debris: A Major Challenge for the Future of Humanity – Steven Freeland

This piece describes the challenges posed by the increasing proliferation of orbital space debris, as well as debris falling back to Earth. It describes how a ‘business as usual’ case going forward threatens to result in outer space becoming less accessible and navigable, thus compromising future space activities. It describes the existing legal and governance frameworks that has been developed at the international level to address issues around space debris, concluding that more needs to be done if we are to maintain space as a sustainable area for the benefit not only of current, but also future generations.

Space is Ubiquitous and Critical

Over the past six decades, space-related technology has revolutionised the world we live in. Beginning in the 1950s/1960s with an initial focus on Government-led military and scientific activities, space has also become a very significant commercial sector, estimated in 2020 to be valued at $US385 billion, and growing at a significant rate (even during the COVID-19 period), far exceeding the growth of the broader global economy. In Australia, the Australian Space Agency is working towards a goal of facilitating the growth of the Australian space economy to reach $A12 billion by 2030.

Our use of outer space has developed to the point where it now plays an essential role in everyday human activities across the globe. You and I ‘use’ space many times a day in many different ways without even thinking about it. Space is ubiquitous and virtually every country on the planet requires access to some form of space technology, and the data it produces, as essential elements of its critical infrastructure. Seen in this light, a (theoretical) ‘Day Without Space’ would have significant negative consequences for every country, every community, every human on Earth. Indeed, the functioning of society as we know it would, in many respects, cease.

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Call for Applications: Assistant Editors and Co-Editor-in-Chief, ILA Reporter

The ILA Reporter is calling for applications for Assistant Editors and a Co-Editor-in-Chief. These Assistant Editors will work in collaboration with the current Assistant Editors and Editor-in-Chief of the ILA Reporter. Applications are due on 2 August 2021. 

What is the ILA Reporter?

The ILA Reporter is the official blog of the Australian Branch of the International Law Association (ILA). The ILA was founded in Brussels in 1873. It has consultative status, as an international non-governmental organisation, with a number of the United Nations specialised agencies. The ILA Reporter provides analysis, commentary and discussion on issues in public and private international law which have bearing on Australia and the wider region, as well as publicising relevant events and opportunities for education to its audience.

What are the roles?

The role of the Assistant Editors is to support the Editors-in-Chief by commissioning, editing and publishing articles for the Blog. Assistant Editors are engaged on a voluntary basis and are required to source and edit at least one article per month. There are also opportunities for Assistant Editors to have their own articles published on the blog. The ILA Reporter is looking to recruit two Assistant Editors in this round of applications.

The Editors-in-Chief are responsible for reviewing submissions received from the readership and sourced by the Assistant Editors; finalising and publishing all pieces for the ILA Reporter; preparing bimonthly digests of articles, events and opportunities for the readership; managing the workload and activities of the Assistant Editors; and assisting the ILA (AB) with its activities. This open role is in addition to the existing Editor-in-Chief of the ILA Reporter.

These roles are a great opportunity for those looking to gain experience in the field of international law with a well-respected non-government organisation.

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Call for Papers: Volume 40 (2022) of the AYBIL

Volume 40 of the Australian Year Book of International Law will be dedicated to the memory of the late H.E. Judge James Crawford AC SC FBA. In addition to a long and distinguished career as an academic, practitioner, arbitrator, and judge, James was a friend and mentor to many. We hope that papers in this volume will reflect on some of his numerous contributions to the field of public international law, and particularly international law in Australia, by engaging with one or more of his varied roles.

The AYBIL welcomes paper proposals reflecting on James’ contributions to the field in such roles as:

  • Scholar;
  • Educator;
  • Role in institutional law reform and codification efforts (eg. Australian Law Reform Commission and the International Law Commission);
  • Legal Advisor;
  • Counsel (especially reflections on his oral or written advocacy);
  • Arbitrator; and,
  • Judge.

Abstracts of up to 500 words on any of these topics accompanied by a short 1-page CV should be sent to the Editors at aybil@anu.edu.au by 15 August 2021. Applicants will be notified of outcomes no later than 10 September 2021, and a virtual workshop to develop papers based on the accepted abstracts may be held in December 2021. The AYBIL anticipate final papers would need to be submitted no later than 15 February 2022 to meet a publishing deadline of June 2022.

You are also welcome to contact the Editors at any time on aybil@anu.edu.au to discuss your proposal or seek clarification regarding the Call for Papers.

Event: ‘Intersections of International Environmental Law with National Jurisdictions’, 22 July 2021

The International Law Association (Australian Branch) is pleased to announce its first in a series of online lunch-time panels showcasing the work of early career international lawyers.

The first panel will be on “Intersections of International Environmental Law with National Jurisdictions”. Speakers including Carina Bury of Universität Hamburg and Millicent McCreath of UNSW Law & Justice. Justice Nicola Pain at the Land and Environment Court of New South Wales will chair the panel, and Dr Emma Carmody at the Environmental Defenders Office and Legal Advisor to the Secretariat of the Ramsar Convention on Wetlands will serve as Commentator. The panel will be held online on 22 July 2021 at 1:00 pm to 2:00 pm AEST. Registration is through Eventbrite.

Future panels (with further details to be circulated) include ‘Emerging Topics in the Law of Armed Conflict’ (August 26), ‘International Criminal Law: Practitioner Perspectives’ (September 16) and ‘International Investment Law’ (October). A flyer is included below.

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Enhancing State Capacity: An Analysis of the Draft Articles on Prevention and Punishment of Crimes Against Humanity 2019 and the Attendant Consequence For State Parties – Adeyinka Adegbite

To highlight the opportunity which the Draft Articles on Prevention and Punishment of Crimes Against Humanity present for progressive development of international criminal law, Adeyinka Adegbite outlines how the Draft Articles contribute to enhanced inter-State cooperation and capacity of national legal to prevent, prosecute and punish crimes against humanity.

Background to the Draft Articles

The motivation for developing the Draft Articles on Prevention and Punishment of Crimes against Humanity (‘Draft Articles on Crimes against Humanity’) by the International Law Commission (ILC), the expert body of the United Nations (UN) with responsibility for developing and codifying international law, was an awareness of the imperative to create a single international legal instrument which provided for the incorporation of the definition of crimes against humanity in national laws; imposed obligations on States to prevent the commission of crimes against humanity; and, conferred national jurisdiction to prosecute perpetrators of crimes against humanity. The first report of the ILC Special Rapporteur for the crimes against humanity stream of work in 2015 initiated what would later become the Draft Articles on Crimes against Humanity.

The comments of the government of States, including Australia, and other UN special agencies and international non-governmental organisations enriched the body of texts aimed at developing the law on this particular category of international crimes. It is important to note that the Charters, Statutes and instruments setting up International Criminal Tribunals, namely the International Military Tribunals for Nuremberg and Tokyo and the International Criminal Tribunal for Former Yugoslavia, among others, included a description of the crimes regarded as crimes against humanity. These provisions were further developed following the entry into force in 2002 of the Rome Statute of the International Criminal Court (‘Rome Statute’).

Article 7(1), (2) and (3) of the Rome Statute set out crimes against humanity as one of the categories of international crimes within the jurisdiction of the International Criminal Court (ICC). The Rome Statute appears to be richer in the provision concerning the category of crimes against humanity when compared with the earlier instruments of International Military Tribunals (IMT), as the definition of these crimes under the Rome Statute are broader in scope. 

Further, the principle of positive complementarity, a novel provision of the Rome Statute in Article 17, lends a two-pronged approach to the prosecution and punishment of crimes against humanity. The principle was a departure from the approach the IMT instruments, which gave priority to the jurisdiction of the IMTs over national jurisdiction. In further emphasising the importance of national jurisdiction, especially where the legal and judicial structures are available and the State is willing and able to undertake such prosecution, the ICC may offer assistance to the prosecuting State to the extent that the perpetrators of these crimes are prosecuted. Whilst a State shall cooperate with the ICC under Article 93(1), Article 93(10) imposes a discretionary duty on the ICC to cooperate with a prosecuting State, stating that the ICC may, upon request, cooperate and provide assistance to a State Party. Nonetheless, the recognition given to national jurisdiction is indeed very admirable. 

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