International Law Association (Singapore branch) and NUS Centre for International Law will be joined by Professor Chester Brown, Professor of International Law and International Arbitration at the University of Sydney, Herbert Smith Freehills LLP on 27 May 2022, 1-2pm SGT (3-4pm AEST).

Register here by 25 May 2022.

Jobs

Department of Foreign Affairs and Trade, Graduate Program 

Applications are currently open for the graduate program at the Australian Department of Foreign Affairs and Trade. Applications close on 12 June 2022. See here for more information.   

Associate Advisor at the Australian Mission to the UN, New York 

The Australian Mission to the United Nations in New York is looking for Associate Advisers. Expressions of Interests closes 31 May 2022. See here for more information. 

Legal Officers at the ICC 

Various legal officer positions (P-2 to D-1) are currently being recruited for at the International Criminal Court. See here for more information.  

Legal positions at UN agencies 

A number of UN agencies are recruiting for legal officers at different levels, including the Office of Legal Affairs, the Office for Disarmament Affairs, and the Mission in Afghanistan. See here for more information. 

Legal Adviser at the ICRC 

The International Committee of the Red Cross is currently looking for a Legal Adviser with expertise in weapons control or disarmament. Applications close 5 June 2022. See here for more information. 

Legal Officer, UNICEF

UNICEF’s Office of the Executive Director is hiring a P2 Legal Officer. Applications close 20 May 2022. See here for more information.

Senior Legal Officer, WHO

The WHO is hiring a Senior Legal Officer (P5) with ten years legal experience in the Office of Legal Counsel. Applications close 5 June 2022. See here for more information.

Internships

Internships at the IIIM and IRMCT 

Internship applications are current being accepted at the Independent Investigative Mechanism for Myanmar and the International Residual Mechanism for Courts and Tribunals. For more information, see here. 

Internships and visiting professional opportunities at the ICC 

Applications are currently open for internships and visiting professional opportunities at the International Criminal Court. For more details, see here.

Opportunities

University of Melbourne Institute for International Law and the Humanities 

Two postdoctoral fellowships and three PhD scholarships are currently being advertised in the ARC Laureate Program in global corporations and international law. See here for more information.  

Call for papers, African Yearbook of International Law 

The Editors of the African Yearbook of International law are making preparation for volume 25 of the Yearbook (2021) and would like to invite scholarly contributions in the form of an article, note, commentary (on recent developments in Africa or outside events of particular relevance to Africa), or a short digest of State practice or judicial decisions in African countries. The special theme for volume 25 will be on ‘The African Continental Free Trade Area’. Deadline for submissions is 30 September 2022. See here for more information, 

Call for papers, Journal of International Law of Peace and Armed Conflict/Humanitäres Völkerrecht (JILPAC / HuV) 

The editorial board of JILPAC invites articles to be published in the second issue of 2022. Against the backdrop of the Russian war of aggression against Ukraine, this issue focuses on questions relating to international humanitarian law in 21st century large scale peer-to-peer conflicts. Contributions can be submitted in English or German. 
The deadline for submissions is 15 July 2022. See here for more information. 

Call for papers, Utrecht Journal of International and European Law 

The Utrecht Journal of International and European Law is issuing a Call for Papers to be published in its second volume of the General Issue in fall 2022 on ‘General Issues’ within international and European law. The deadline for submissions is 31 May 2022. See here for more information. 

Events

Centering Child Development in International Childrens’ Rights Law, 20 May 2022 

As part of its Politics in International Law series, ANU is hosting a talk on child development in international children’s rights law on 20 May 2022. A link to register for this and other events can be found here.  

Global Security and the International Rule of Law: Interdisciplinary Perspectives, 30 May 2022 

KFG Berlin Potsdam Research Group is hosting a virtual half-day webinar titled Global Security and the International Rule of Law: Interdisciplinary Perspectives on 30 May 2022. The event is free to attend. A program and link to registration can be found here.

Maryam Jami argues that while faced with the jurisdictional predicament of the Taliban’s amnesty declaration under the Rome Statute, the International Criminal Court should be empowered to intervene to address the Taliban’s ongoing extrajudicial punishment based on the doctrine of ‘international concern’.

Introduction

The Taliban took control of Afghanistan 15 August 2021 after an unexpectedly quick win over Afghan security forces. Following the establishment of the Islamic Emirate of Afghanistan (IEA), the Taliban pledged a general amnesty on August 17 to anyone connected to the former Afghan government and security sector, and those who have worked with the international/coalition forces. They also called upon former government employees and public servants to return to their jobs.  

However, despite the Taliban’s promise of protection for people associated to the foreign troops and the previous Afghan administration, extrajudicial murders and abductions are purportedly being carried out in Afghanistan. United Nations officials reveal that they have received credible evidence that more than 100 members of the former Afghan government, its security personnel, and others who collaborated with international forces had been killed since the Taliban’s takeover, and that at least 72 of these killings were attributed to the Taliban, themselves.  

While Abdul Qahar Balkhi, Spokesperson for the IEA Foreign Ministry denied such allegations, two new videos went viral on March 15 showing Taliban shooting at affiliates of the former Afghan security sector in the Panjshir and Baghlan provinces. This trend of unlawful trials and punishment by the IEA carries on while the country’s formal judicial system is paralysed and the Taliban have officially closed the Independent Bar Association, detaining its lawyers, attorneys, and other staff. They have also stripped the Constitution of the Republic (2004) and other national laws of their effect, thereby leading the country into a state of lawlessness. In light of this, international tribunals are now being hailed as the sole legitimate avenue which can approach and comment on the Taliban’s ongoing reprisal killings and detentions. The International Criminal Court (ICC) is the relevant international body which is responsible for resolving the cases of war crimes, human rights abuses, extrajudicial killings and detentions, and crimes against humanity. Nevertheless, the United Nations Rome Statute of the International Criminal Court (the Rome Statute) makes no direct reference to the national amnesties declared by governments or domestic jurisdictions. That is why, one of the most contentious and practically significant problems since the ICC’s establishment has been whether the ICC should admit an amnesty issued by a national government while investigating a State emerging from internal wars or conflicts. This lack of discussion and reference on the subject in turn encourages governments to seek self-impunity by declaring amnesties, which they may readily obtain. Not only that, but governments now have the ability and capacity to violate the human rights of their political opponents under the guise of amnesties—which I hereinafter refer to as the ‘strategic violation of human rights’.

Governments’ Manipulation of the National Amnesties

The Black’s Law Dictionary defines amnesty as ‘an act of amnesia and oblivion under the jurisdiction of national authorities’. While the fundamental goal of amnesties has always been to end civil wars and establish conditions conducive to reconciliation, current practice of granting amnesties occasionally reflects other goals. The contemporary implementation of national amnesties by governments have sometimes led to, or even have been aimed at, the violation of international human rights and protection of the violators against international prosecution. The outbreak of amnesties in Latin America in the 1900s reveals such a pattern of misusing the national amnesties for the mentioned purposes. For example, in an effort to move on from the dictatorship, the Uruguayan legislature passed the Expiry Law in 1986, which granted amnesty to many military and police members who had committed human rights atrocities during the dictatorship.  

While obliged by its Statute to abstain from intervening in cases of national amnesty, the ICC soon discovered that the amnesty patterns of the 1900s were not aimed at consolidating peace and ending a period of civil war, as national amnesties are supposed to. Rather, they were declared by the incumbent governments to seek impunity from international prosecution and in some cases to strategically punish their opponents. Therefore, there was a room created for the ICC to intervene in such cases based on the general notion of ‘international concern’ or international responsibility for human rights, as other courts (e.g., the Inter-American Court of Human Rights, which is discussed below) and human rights groups did the same. This notion constitutes an obligation for the ICC and other international legal channels to actively defend and protect international human rights, and imposes restrictions on domestic governments that use amnesties to violate international human rights. This view is also supported by some other international law conventions. For instance, a State must not rely on its national law to violate international treaty obligations, according to Article 27 of the Vienna Convention on the Law of Treaties. Although, in the case of the Taliban, there is no formal legislation governing the amnesty that currently violates the international human rights, the IEA’s ‘declaration’ has still constituted an obligation on it to protect international human rights under the amnesty. The amnesty indicates that the addressees of the declaration will not face a criminal trial or punishment in the domestic realm, thereby pointing to a ‘promise’ by the IEA assuring the international tribunals that the offense is no longer prosecutable neither under domestic jurisdiction nor international ones, and the subjects will no longer be threatened by a prospective trial or punishment.    

Despite affirming that the manipulation of amnesties by the governments and heads of State to gain impunity from prosecution has grown pervasive over recent decades, I argue that governments do not always misuse amnesties to obtain impunity and shield themselves against prosecution, but they also do so to strategically violate the human rights of activists, and their critics and opponents – those who either currently oppose their rule, or have fought them during previous civil wars and armed conflicts. The governments’ tendency to do so is clearly charted in the case of Velasquez Rodriguez v Honduras (1986). In this case, the Inter-American Court of Human Rights found that the Honduran military had violated international human rights by arresting, torturing, and killing of a student activist who was apparently protected under an amnesty law. The student was a follower and promoter of the opposition party, which comprised of political rivals and critics of the Honduran government. This tendency is now being revived in the case of Taliban. The IEA initially declared amnesty to reassure Afghans and the international community, and represented that the Taliban would no longer relegate to unlawful detentions and extrajudicial killings. However, current evidence reveals that the IEA, as a government, is using the amnesty and the public trust to strategically violate the human rights of its erstwhile adversaries.

The Rome Statute and the Taliban’s Amnesty

This amnesty has been a clever way for the Taliban to punish their opponents covertly and strategically while legally keeping the ICC out of the circle. In fact, some provisions of the Rome Statute have enabled the Taliban to use amnesties as a safe and reliable means of violating human rights, since national amnesties are the only areas in which the ICC has indirectly decided not to intervene. Article 17 of the Statute provides that the ICC would not intervene in a case if it is being investigated, has been investigated, or is concluded by the State which has jurisdiction over it. There is only one exception to this rule, and this is when a State is ‘unwilling or unable to carry out the investigation or prosecution’. As per the Statute, the factors for determining a State’s ‘unwillingness’ include whether: the State is pursuing self-impunity through the prosecution; the procedures are delayed; and, the processes are not conducted impartially. In March 2020, considering the Republic of Afghanistan’s inability to bring the perpetrators of war crimes to justice, an inquiry into alleged war crimes and crimes against humanity in Afghanistan had been authorised by the ICC. However, the Republic soon requested the ICC to defer such investigations to its domestic channels, while later there were no investigations proceeded by the Republic, showing that it was either unwilling or unable to do so. This tendency in turn made the ICC theoretically and practically authorised to proceed with investigations, yet it did not do so. The inability and unwillingness to conduct prosecutions has further transpired into the Taliban’s regime, as they directly declared amnesty without even proceeding with the investigations. Nevertheless, what keeps the Taliban away from the ICC’s radar is that, unlike the Republic, they actually did something regarding the investigations by declaring the amnesty, showing that the respective offense is no longer prosecutable. As is evident, in the Taliban’s case, the amnesty is not declared for obtaining self-impunity, rather it is declared in regard to the former oppositions of the IEA, not its own members or officials. Secondly, there was no delay in the decision. The amnesty was proclaimed only two days after the takeover. Finally, no proceedings were actually conducted before the declaration of the amnesty. Therefore, one cannot comment on whether the proceedings were impartial or not. Also, in order to be determined as ‘unable’ to prosecute a case, the Statute establishes that a State should be unable to obtain ‘the necessary evidence for the prosecution’. Again, as there were no proceedings conducted before the declaration of the amnesty by the Taliban, it is also of no effect to decide whether or not the IEA was unable to obtain evidence for the prosecution.

Concluding Remarks: The ICC’s International Responsibility for Human Rights

As charted above, the provisions of Article 17 do not grant to the ICC the authority to intervene in the case of Taliban’s amnesty under any of the mentioned exceptional conditions, thereby practically enabling the Taliban to perform extrajudicial punishment under the veil of the national amnesty. While in this case, the ICC cannot intervene due to its mandate under the Rome Statute, I argue that it should be able to intervene under the concept of ‘international concern’, just as it did in the 1900s. Having said that, the Rome Statue does not pledge the ICC to take measures to protect international human rights under the notion of international concern. Although in 2011, Dr. Hans-Peter Kaul, former Second Vice-President of the ICC, emphasized in a speech about ICC and human rights that ‘the ICC is a permanent judicial institution that was set up to end impunity for the most serious crimes of international concern’. The crimes that provoke international concern and fall within the jurisdiction of the ICC are generally listed in Article 5 of the Rome Statute as ‘(a) the crime of genocide, (b) crimes against humanity, (c) war crimes, and (d) the crime of aggression. However, it is a non-exhaustive list and practically authorizes the ICC to explore different patterns of these crimes down the line. This is where the practical mission of the ICC starts—the mission which should sometimes go behind the borders of the Rome Statute, especially in cases where the crimes of international concern are perpetrated in a manner that impliedly grants to the perpetrators impunity under the Rome Statute. As witnessed in the case of Taliban, amnesties continue to provide fertile ground for the emergence of new forms of human rights violation. The ICC, in response, should be alert not to allow its Statute and mandate to prevent it from practically and actively exploring these emerging patterns of human rights violation, as well as from intervening in such cases. Neither should the ICC ignore its international responsibility for human rights.

Maryam Jami is a Researcher at the Institute of War and Peace Studies (IWPS) and Senior Editor at South Asian Journal of International Law and the International Review of Human Rights Law. 

In part one of this series, the new book The Laws of Yesterday’s War (edited by Samuel White) was introduced by looking at the relevance of Indigenous Australian laws of wars to cyber. In part two, contributor Andrew Read considers the parallels between the Russian invasion of Ukraine and pirates and privateers in the Elizabethan era. 

The commencement of President Vladimir Putin’s recent attack against Ukraine on 24 February 2022 — preceded by the Russian Federation’s recognition of Luhansk and Donetsk People’s Republics — was accompanied by an address by him to the Russian people in which he asserted that the Russian Federation’s actions were in accordance with Article 51 of the United Nations Charter.  Article 51 provides for the use of force by States for the purposes of self-defence. There has subsequently been substantial denunciation of this purported legal basis, which argues the president’s attack reflected an unlawful use of force against Ukraine, contrary to Article 2(4) of the same Charter President Putin was purporting to invoke. 

Pronouncements of the legality of blatantly aggressive State conduct are not novel in international affairs. Nor are similar pronouncements about legally dubious State-supported activities, which sit below a threshold likely to trigger outright inter-State conflict through their ambiguity. However, these often still severely denigrate the regulating norms of State intercourse which could otherwise underpin mutual inter-State stability. As the associated book chapter ‘Pirates and Privateers in Elizabethan England’ considered, prevailing international legal paradigms and norms being abused, and their provisions selectively construed and applied in the pursuance of State objects, is a recurrent aspect of international affairs.  

The chapter outlined that the Elizabethan Era (1558-1603) marked a period where a relatively weak and inexperienced Elizabeth I of England was faced with significant security challenges. The most prominent challenge being that posed by King Phillip II of Spain. This relative weakness caused England to rely heavily on private economic warfare — characterised in the chapter as the tacit tolerance of the actions of, or direct and attributable employment of private ships for the realisation of State outcomes. Such reliance was affected by England in a legally amorphous context, and in such manner that the use of private actors was intended, through their plausible distance from the sovereign, to avoid outright hostilities between States from being instigated. The employment of such actors often occurred in circumstances where the State could arbitrarily deny sponsorship of the underlying activity or claim that the operator possessed legitimising lawful authority. 

The operating environment ranged from pirates concerned with their own enrichment, to privateers and corsairs, operating with ‘letters of marque’. Such devices reflected empowering legal instruments bestowed by their respective States which authorised those actors to seize the seaborne assets of foreigners to amend losses caused to the aggrieved by that foreigner’s compatriots. Issuing such instruments was highly arbitrary and weak State enforcement action against citizens whose piracy was directed against rival States was a persistent feature of the era. 

Today, factors including: the increasing preponderance of State-directed disinformation operations in the media; the proxy use by States of malign cyber actors; and, the claim by some States that acts of military aggression have a legitimising lawful basis, suggest that the rather arbitrary international legal order of the Elizabethan era in its application to piracy and privateering, has some points of comparison to today’s increasingly subverted international peace and security apparatus. 

As Elizabeth I was extremely careful to maintain a veneer of commitment to taking action against piracy perpetrated by her subjects when the actions of such individuals threatened to provoke wars, comparable deference to the value and importance of the information space is critically relevant today. For example, the paradigm now includes the potential for States to propagate graphic fake videos for the purposes of deceiving the public in matters of international relations. Similar to the way that individuals like Sir Francis Drake claimed to be acting legitimately when they were often engaged in what could be argued to have been illegitimate pursuits, so too did we see armed men — ostensibly Russian soldiers — operating apparently consistently with President Putin’s strategic objectives within Crimea in 2014, but who were characterised by him as local ‘self-defence groups’. 

As the letter of marque system was often used in the Elizabethan era to validate seemingly dubious maritime undertakings, we are seeing comparable use of the United Nations Charter now to assert the lawfulness of President Putin’s actions in Europe. 

While an extremely bold approach to the interpretation and application of regulating international law norms might have suited Elizabethan England in the age of sail, any State conduct which now degrades the efficacy of the international provisions designed to uphold international peace and security cannot be tolerated by the international community. The failures of the ill-fated League of Nations show us the potential results if the international community cannot rely on consistent and responsible State adherence to acceptable norms. The effect of undermining international restraining norms could be relatively limited in the Elizabethan era, though the same cannot be said for today’s economically interconnected and weaponised community of nations. 

Andrew Read is a government lawyer practising in Queensland. The views expressed are his, and do not necessarily reflect an official position. 

The Laws of Yesterday’s Wars is available now at Brill Publishing.

Jobs

Postdoctoral Fellow in International Economic Law at National University of Singapore 

The National University of Singapore seeks a Postdoctoral Fellow in International Economic Law for a duration of 2 years. Applications close on 22 April 2022. For further details see: https://www.timeshighereducation.com/unijobs/listing/287107/postdoctoral-fellow-international-economic-law-focus/?LinkSource=PremiumListing  

Postdoctoral Fellows in International Law at Melbourne University 

The University of Melbourne is seeking two postdoctoral fellows in international law to join their ARC Laureate Program in Global Corporations and International Law. Applications close 11 May 2022. For further information, see: https://jobs.unimelb.edu.au/en/job/908256/postdoctoral-fellow-in-international-law-x-2  

The Rotary International Peace Fellowship 

An award for peace and develop professionals to study at partner universities and develop their skills to promote peace within their communities and across the globe. Multiple locations. Applications due 15 May 2022. For further details: https://www.rotary.org/en/our-programs/peace-fellowships  

Internships

Herbert Smith Freehills Singapore, International Arbitration Internship 

Herbert Smith Freehills Singapore is offering paid internship opportunities to law students, graduates and post-graduate students. Applications due 1 May 2022. For further details: https://www.linkedin.com/jobs/view/3019138726/ 

Opportunities

Winston Churchill Fellowship 

Applications are now open for the Winston Churchill Fellowship to provide funding to travel overseas for a period of 4 to 8 weeks to explore a topic of interest. Applications are due 28 April 2022. For further details see: https://www.churchilltrust.com.au/become-a-fellow/  

Australian Red Cross, International Humanitarian Research Volunteer 

Australian Red Cross is seeking research volunteers for its Business and IHL file. Applications due 28 April 2022. For further details: https://volunteering.redcross.org.au/cw/en/job/498361/international-humanitarian-law-ihl-research-volunteer  

PhD Scholarship, Regional Refugee Settlement: A Longitudinal Study, University of Melbourne 

The University of Melbourne is offering a scholarship for a PhD as part of a broader project of ‘Settling Well: A Longitudinal Study of Refugees in Regional Australia’. Applications are due 11 May 2022. For further details: https://socialequity.unimelb.edu.au/news/latest/phd-scholarship-opportunity-regional-refugee-settlement?utm_source=ethicaljobs    

From Use of Force to Responsibility to Protect, Short Course  

The Geneva Academy of International Humanitarian Law and Human Rights is delivering a short course 19 May to 3 June 2022 for professionals in Geneva and online. For further details see: https://www.geneva-academy.ch/masters/executive-master/individual-courses/detail/135-from-use-of-force-to-responsibility-to-protect  

Call for papers: Emerging Technologies and Domestic Military Law 

The Law and Future of War Research Group at the University of Queensland is inviting abstracts on the topic of ‘Emerging Technologies and Domestic Military Law: Comparative Views on Principles, Policies and Practice’. Abstracts are due by 30 May 2022. For further details: https://law.uq.edu.au/article/2022/03/call-papers-emerging-technologies-and-domestic-military-law  

Events

Pacific perspectives on the negotiations at UNCLOS III, ANU College of Law, 26 April 2022 

This online webinar looks at the Pacific perspective on the negotiations from an academic, diplomatic and practitioner point of view. For details on how to register: https://law.anu.edu.au/event/webinar/pacific-perspectives-negotiations-unclos-iii 

Citizens for Climate Action, UNSW, 26 April 2022 

This online event hosted by the UNSW considers how citizens’ movements can influence genuine climate change action. For details on how to register: https://www.events.unsw.edu.au/event/peter-garrett-jean-hinchliffe  

Human Goods and Human Rights, ANU College of Law, 27 April 2022 

The ANU College of Law is hosting an online event presented by Dr Gregoire Webber who argues that ‘the measures that realise human rights in the law are the everyday, unremarkable measures that make up the full corpus of legal materials directing what may, must, and must not be done.’ Dr Webber’s arguments explores ‘how all sounds positive law finds its source in human goods through one of two modes of derivation: deduction or specification’. For details on how to register: https://law.anu.edu.au/event/anu-college-law-visitor-seminar/human-goods-and-human-rights-law  

What did COP 26 mean for the Asia Pacific Region and what to expect next? Centre for International Law, National University Singapore, 27-28 April 2022 

The UNFCCC secretariat and Centre for International Law, National University Singapore are pleased to jointly convene a workshop to analyse the implications of the discussions at COP 26 for the Asia Pacific region. For more details: https://cil.nus.edu.sg/event/cil-unfccc-workshop-on-what-did-cop-26-mean-for-the-asia-pacific-region-and-what-to-expect-next/  

Book Launch, Blurry Boundaries of Public and Private International Law: Towards Convergence or Divergent Still?, 29 April 2022 

Dr Poomintr Sooksripaisarnkit and Dharmita Prasad will host a virtual book launch for their new book, Blurry Boundaries of Public and Private International Law: Towards Convergence or Divergent Still (Springer 2022), hosted by Jindal Global Law School, O.P Jindal University. Speakers include Professor Alex Mills (University College London), Rishi Gulati (Owen Dixon Chambers East), Dr Veronica Ruiz Abou-Nigm (Edinburgh Law School), Dr Ivana Kunda (University of Rijeka) and Professor Ralf Michaels (Max Planck Institute for Comparative and International Private Law). Register here: https://us06web.zoom.us/meeting/register/tZwvduyrrzIuGNVE-U8VT1DthK0SZV0BudZV  

Creative thinking: a tradition of international legal scholarship at ANU, ANU College of Law, 5 May 2022 

Join Judge Hilary Charlesworth, Professor Anthea Roberts and Dr Ntina Tzouvala for this event on creative legal scholarship. For details on how to register: https://www.eventbrite.com.au/e/creative-thinking-a-tradition-of-international-legal-scholarship-at-anu-tickets-303317168817 

UNCITRAL Working Group III on ISDS Reform Forum: Further Preparatory Work on Investment Mediation, 5 May 2022 

UNCITRAL, the Department of Justice, Hong Kong SAR, and the Asian Academy of International Law will explore key issues in respect of proposed model clauses and guidelines on investment mediation. Register here: https://aail.org/2022-05-05-uncitral-wgiii-forum/ 

Refugee and Asylum-seeking Children: Australia’s Obligations under International Law, 5 May 2022 

Professor Mary Crock, Sydney Centre for International Law, and Rasika Jayasuriya, Migration Policy Specialist, UNICEF will examine Australia’s obligations as a party to the CRC, and the need to address the detention of children, their mental health, discrimination, the provision of services, and support for civil society organisations working for the welfare of children. Register here: https://dtp.org.au/refugee-and-asylum-seeking-children-crc-05may22/ 

Unconventional Lawmaking in the Law of the Sea: A conversation with contributors, 26 May 2022

This event brings together many of the contributors to Unconventional Lawmaking in the Law of the Sea for a conversation with the Editor, Natalie Klein, to celebrate the book’s release. The event is supported by the International Law Association (Australian Branch) and UNSW Sydney’s Faculty of Law & Justice. Register here: https://www.eventbrite.com.au/e/unconventional-lawmaking-in-the-law-of-the-sea-a-conversation-tickets-327742004157.

UNCITRAL Model Law on Cross-Border Insolvency: A 25 year review, 27 May 2022

The Model Law on Cross-Border Insolvency was issued by the United Nations Commission on International Trade Law (UNCITRAL) in 1997, with Australia playing a significant part in its drafting. Australia adopted the Model Law under the Cross-Border Insolvency Act 2008 thereby opening up its insolvency laws and processes to international insolvencies with interests here. Australian practitioners are likewise able to access foreign laws of the 50 countries that themselves have adopted the Model Law. At the same time, Australia retained its long-standing cross-border mechanisms under the Bankruptcy Act and the Corporations Act. There have been nearly 100 decisions concerning the Model Law, and more overseas, as well as continued use of the existing mechanisms. Register here: https://www.uncca.org/event-details/uncca-may-seminar-2022.

The Laws of Yesterday’s Wars was launched at the Australian National University on 13 April 2022 by Air Commodore Patrick Keane AM CSC, Professor Tim McCormack FAAL and Samuel White. In part one of this series, Samuel White outlines how Indigenous Australian laws of wars can be relevant to a modern type of warfare – cyber. 

Ambellin Kwaymullina once wrote ‘Australia is a continent, not a country.’ As Kwaymullina writes, First Nations in Australia had international laws for trade and migration. The customs and norms for operating in this interconnected continent were shattered with British colonisation, with the fragments only starting to be combined. However, these are not lessons from the past. Modern military strategists are beginning to grabble with an issue of interconnected nations – an issue that was the everyday life of First Nations: that is, the spectrum of competition.  

War, in the Roman, and later European concept, relates to ‘the contention between two or more States, through their armed forces, for the purpose of overpowering each other, and imposing such conditions of peace as the victor pleases’. This threshold has arguably lowered, requiring merely a use of force to trigger some sort of international law prohibition. Importantly, international law views force as physical. Accordingly, under existing, Westernised international law, economic or informational pressure do not meet these thresholds. These so-called ‘sub use of force’ operations neatly exploit the Western thresholds of ‘war’ and ‘peace’. 

This has led to a shift in the military lexicon to a ‘new’ form of warfare – the spectrum of competition. It consists of concurrent states of affairs that parties can fluidly move between: co-operation, competition and conflict. Although new to Western warfare, this situation was commonplace within Indigenous Australia: co-operation over land management, competition over valuable resources, and conflict over trespass. 

Whilst the predating of competition to war has been recognised elsewhere, military strategists seem to have been constrained by their Eurocentric thinking. Why not look elsewhere? Perhaps it is because First Nations warfare has been ‘one of the most disputed topics of social anthropology for decades.^’ Peter Dennis wrote that ‘the egalitarian, non-cohesive nature’ of Indigenous Australian society precluded complex military strategy. Meanwhile, military historian Jeffrey Grey concluded Indigenous Australian peoples could not organize anything akin to a battle.  

The dearth of academic commentary is probably a combination of self-censorship and simplistic/racist writings of early British observers. Archaeological evidence supports academic findings, indicating the existence of complex and large-scale military engagements within hunter-gatherer societies. There is also clear support for customs that mitigated the excesses of war, from which lessons can be drawn to inform modern operations including in cyber. 

Lesson 1: Sovereignty to be protected  

Academic commentary around sovereignty has begun to consider whether it is a rule (to be enforced) or a principle (to be abided by). First Nations demonstrate the importance of sovereignty being a rule. Early British settlers often remarked on the strength by which First Nations resisted territorial encroachment. In protecting their Country, but not others, First Nations ‘affirmed their rights as proprietors’, according to Henry Reynolds. In this respect, recent experiences in Ukraine by Russian aggression has demonstrated the need to maintain an ability to enforce sovereign claims, lest they be encroached.  

First Nations enforced their sovereignty through military power. All members of society were required to uphold custom and law, and to protect Country. So too, with direction from the Australian Government, could Australians be educated in their critical role of maintaining sovereignty in an era of cyber? This would constitute a rather novel, but not impractical, form of social resilience. Promoting social resilience in the modern, connected world has been the focus of many States: focus in primary and secondary education, as occurs in Sweden; through truth verification bodies, as occurs in Argentina; or through the use of military personnel to report suspected interference operations and to write comments, as occurs in Israel. Why not, then, look to the lessons of our First Nations? 

This is not to say that Australia need be belligerent. As I have argued elsewhere, within the cyber domain Australia has clear constitutional authority to take pro-active steps to defend itself and to punish those who interfere with its domain reservee (the central functions of government). There are, of course, political and strategic reasons we may not wish to; but the option remains.   

Lesson 2: Avoid escalation  

The second lesson can be applied to the Department of Defence’s current mission: to shape, deter, respond. A logical issue with deterrence theory is that it can escalate very quickly. The trick is to operate in a manner that avoids this. 

Payback was a notion that underwrote Indigenous warfare. It related to legitimacy and justice – junkarti (literally ‘straight’ in Lardil). It provided an exact, tit for tat reciprocity for past actions. As Tyson Yunkaporta explains, the rules of engagement were that cuts could only be inflicted on the arms, back or shoulders. But these cuts, at the end of sparring, had to be replicated on one another. This meant that no one could walk away holding a grudge. 

Junkarti ensured equity and helped curb the violence and brutality of warfare, as few persons cared to endure more than a few blows or cuts in payback for what they had inflicted – let alone be killed for killing an opponent. Acting in a de-escalatory manner was not to say that violence or aggression was prohibited. Yet Indigenous cultural norms promoted training to disarm, rather than to kill. This has been mirrored by other cultural restrictions in societies that practice warfare across a spectrum (rather than a binary construct) – such as the Mexica.  

From a cyber-domain perspective, this could extend to focusing on tactics, techniques and procedures that allow for temporary knockouts rather than permanent damage. In many ways, distributed denial of service attacks allows for just this. These attacks utilise extended networks of computers to flood a targeted system, providing temporary knockout effects. If the correct nodes in the computer network are chosen, it can be the cyber equivalent of a nerve centre knockout similar to what the First Nations peoples trained for.

Lesson 3: Empathetic relations 

Escalation, in a global era of deterrence theory, is a state of affairs to be avoided. Again, recent experiences in Ukraine and the sabre rattling (the making of military threats as a form of deterrence) Russia demonstrate that there is incentive to be able to effectively operate within an environment that has the potential for risk. One solution, then, is to act in a manner that Australia is happy to have reciprocated. This is particularly relevant for a nation dedicated to a rules-based global order.   

The first sign of blood was often sufficient for the blood-causing side to declare victory: as one observer noted, ‘in tribal fights as soon as a black on either side was wounded, his side began a retreat‘. A shout would then go around the battlefield and all would temporarily quit fighting to discuss the implications of the casualty’s fall. This would often take the battle off into a new direction. There were specific shouts passed around a battlefield if anyone had fallen (often ‘blood’ – indicating a wounding). This enabled hostilities to halt quickly.  

Within the cyber domain, the application of this is clear. It may take time, but in an interconnected world where cyber offensives are easier than cyber defence, we must be prepared to facilitate norms such as those that existed in First Nations Australia.  

The result of this complex series of laws of war allowed for the spectrum of co-operation, competition and conflict to be easily navigated. Except for long-standing feuds, which could fester for decades, Indigenous Australian conflicts typically ended on a note of complete forgiveness and goodwill. A police officer who witnessed a battle in far north Queensland was astounded at the wholehearted manner in which animosities were dropped: 

I could not refrain from wondering at the entire absence of any ill-feeling or animosity among these people. They had been only a few minutes previously emulating each other in inflicting severe wounds and hurts, nay, even in slaughtering their enemies, and yet, here they were laughing, chatting, and feasting, with every manifestation of goodwill and reciprocal friendship. That the battle… had been fought in downright earnest was only too apparent. But it had not left a vestige of that acrimony which we should have looked for from a like contest between civilised people. 

Although it may seem unrealistic from an Anglo-Saxon perspective, there are clear alternatives to how war can be fought. It requires critical questions to be asked, and our cultural norms to be critically assessed. For, as Audre Lorde warned us, ‘the master’s tools will never dismantle the master’s house’. Failing to do so, and maintaining our house, will only result in it being blown down.  

Samuel White is a Cybersecurity Post-Doctoral Fellow & RUMLAE Associate Researcher at the University of Adelaide, Adjunct Research Fellow at the University of New England, & Legal Officer in the Australian Regular Army. These views do not reflect the views of his employer nor are those of affiliate organisations. His new book, the Laws of Yesterday’s Wars is available now at Brill Publishing.

The United Nations’ response to allegations of sexual exploitation and abuse by peacekeepers appears to have benefitted from the energy and commitment shown by the present UN Secretary-General António Guterres. However, there is still no shortage of work to do in the face of such egregious abuses of human rights and the range of dire consequences for victims. The travails of other institutions also point to a new dimension of this ongoing challenge: the possibility that, in addition to any individual’s misdeeds, a form of child abuse may arise, in effect, from an institutional response to alleged wrong-doing that does not do enough.

Background

An uneasy calm seems to have fallen over the question of peacekeepers behaving badly. Perhaps the energy and commitment to addressing this issue shown by Secretary-General António Guterres has actually made an impact, or perhaps global attention being rivetted on COVID-19, and all of the pandemic’s consequences, has provided a lull in the storm. Perhaps it is just because there are significantly fewer peacekeepers in the field than at the high-water mark of United Nations (UN) peacekeeping deployments around 2015.

Whatever the case may be, the issue of sexual exploitation and abuse (SEA) perpetrated by peacekeepers has not dropped from the headlines entirely, and even Guterres is not suggesting there is cause for celebration – rather, he continues apace to address this persistent stain on the reputation and credibility of the UN (for example, in a recent call to punish perpetrators). 

Undoubtedly, the contemporary response by the UN is a vast improvement over when, in 1993, UN Special Representative to Cambodia, Yasushi Akashi, was faced with accusations of peacekeepers sexually abusing the local population, and responded that ‘boys will be boys‘. However, given the UN’s immunities as an international organisation, much of the UN’s response to peacekeeper wrongdoing centres on the actions of individuals and deflecting the necessary response to others: what the individual is alleged to have done, whether that is punishable by law, and, if so, punishable in what legal context and by which particular actor.

For SEA allegations, this is reflected in related UN reporting mechanisms, for example, which largely rely on action by States to hold individuals accountable, and on a much wider front in related scholarship. 

This has been a live problem for the UN for quite some time, but the response has not been swift. The first substantive report was in 2005 and, despite the UN’s ‘zero tolerance‘ policy, and much that has been done towards preventing misconduct by UN peacekeepers, it is not clear how effective such measures have been. Even handling such matters has proven to be fraught, and remains so in various ways, not least for individuals wishing to report instances of SEA to the UN. 

In that light, the present reporting regime, and its basis in Security Council Resolution 2272, do represent progress by more openly addressing SEA by peacekeepers and reporting publicly on how alleged incidents are being addressed. However, it is unclear whether the problem is on the way to being resolved, or even that the UN has done what it can within the powers that it has (which might also be said about other forms of misconduct arising under the aegis of UN activities, but that is another debate).

The specific question

As is now being discovered – the hard way – by various organisations around the world, there are consequences if the institutional response to alleged child abuse is itself found to be lacking. That is, other institutions have now been seen to perpetrate institutional abuse by their inadequate response to SEA in relation to children. This is seen in relation to, for example, various churches – in Australia, the USA , Canada, and so on, or their high office holders wherever they may be – or in emerging complaints and scandals, dogging the footsteps of even seemingly-venerable organisations to the point of insolvency. The travails of church organisations are particularly interesting, as finding them culpable, or laying charges against their high office holders, would have been unthinkable not so many years ago.

So, quite separately to the challenges that persist in testing the culpability of an individual alleged wrong-doer, the question here is – what does it mean if the UN is seen as failing to act, or to act sufficiently, in the face of multiple or ongoing instances of SEA of children?

What is institutional child abuse?

There is no generally accepted definition for the term ‘institutional abuse’, but in scholarly writings the phrase is used consistently to mean abuse that occurred in an institutional setting – institutional being taken broadly as non-familial, settings of the kind central to the recent Royal Commission in Australia. Similarly, various countries have found that the issue is not confined to one place, or one organisation, or even one type of organisation (religious, for example). 

Part of the signature of such acts is abuse of institutional power, which itself comes in various forms, but commonly arises if ‘adults tend to place the interest of institutions … above the protection of children‘. This includes failing to act – or to act sufficiently – in the face of relevant reports, or, indeed, failing to provide a reasonable mechanism to elicit reports in the first place. 

Public inquiries have also contributed to debunking the idea that wrong-doers of this kind are easily recognisable as different from the rest of the community. Such perpetrators have commonly been portrayed as some kind of ‘monster’, meaning their presence in a situation would be self-evident; if there are no ‘monsters’ to be seen, inaction is justifiable. Open inquiries with a wide remit have shown the profound fallacy of such logic, and nothing suggests that this learning should be disregarded in relation to peacekeepers (or any other representative of the UN for that matter). 

Crucially, such public inquiries have highlighted the regrettable reality that, not infrequently, a ‘failure to act’ is a knowing failure. Failures to act range from ‘mere’ ineptitude in institutional leadership, to denial and/or obfuscation to protect the name and reputation of the organisation, to active and wilful cover-ups, or worse.

Self-evidently, the Purposes of the UN, given by the UN Charter, do not call on the UN to care for children in the way that, for example, the operator of an orphanage or other youth 

services organisation does. It is abundantly clear, however, that the UN implicitly has a non-trivial element of responsibility for avoiding harm to children with whom its representatives are in contact – and this includes peacekeepers (noting that harms are not limited to those implied by a strict understanding of SEA).

So, regardless of what individual States do in their own legal realms, the question remains: has the UN done enough on its own account to respond to SEA of children?

Whose aegis and whose initiative?

Without being unduly exacting, the question might be rephrased: has the UN used the powers that it has to solve the problems within its grasp, and so better protect children? 

How one might answer then depends, to a degree, on one’s conception of the relationship between the UN and an individual peacekeeper.  

Peacekeeping operations are provided with their mandate by a decision of the UN Security Council.  In effect, this legal basis for authorising peacekeeping operations means that they function as a subsidiary organ of the Security Council.  This does not, however, give the UN direct legal control of troops deployed in peacekeeping under the UN’s aegis. In the context of wider questions about the effectiveness of peacekeeping operations, scholarship on peacekeeper misconduct has highlighted a wide range of issues created by this always complex, and often convoluted, chain of command. 

Leaving this ongoing scholarly and practical debate to one side, a new dimension of legal concern is emerging. Put bluntly: in the future the UN may be maligned for an insufficient or inadequate institutional response to SEA of children, constituting a further wrong of institutional abuse.  In line with current debate in States contending with such cases (including Australia), this could arise almost regardless of the questions of legal culpability of individual peacekeepers. 

In the face of that, rather than confining itself to lamenting the lack of legal power to prosecute wrong-doers directly, there may still be actions that the UN could take to improve protection of children from SEA perpetrated by peacekeepers.  Put more bluntly, the shift in understanding of child abuse, to recognise institutional child abuse, suggests hand-wringing

should now give way to creative problem-solving, of the kind already seen in the Security Council’s creation of other means and mechanisms – international criminal tribunals, committees to address terrorists and their activities, indeed peacekeeping itself (it having emerged as something of a substitute for the capacity intended to exist under Article 43 of the Charter).

Thus, it may be that development of the concept of institutional abuse of children strengthens the case for a direct mechanism for responding to such allegations against UN peacekeepers, and new lines of discussion could open up accordingly. Should, for example, the UN conceive of itself as offended by such actions sufficient to instigate new ‘review of conduct’ mechanisms? Could such mechanisms be given competence to assess the conduct of individuals, even if not to address such conduct directly? That is, could they be designed to address the matter without undermining the legal recourse against individuals that (in very broad terms) remains the right and province of their State? 

These are questions for another time, but scholarship on the concept of institutional abuse of children suggests strongly that, in the interests of better protecting children as well as protecting the good name of the UN, effort invested in exploring these questions will not be wasted.

Dr Carolyn M Evans CSC teaches and researches at the Faculty of Law & Justice at UNSW Sydney, specialising in international law in relation to international organisations. She recently published her first monograph Towards a more accountable United Nations Security Council (Brill, 2021).

The criminal indictment of two Swedish business executives in November 2021 for complicity in war crimes serves as a timely reminder of the importance of the laws of war, and the consequences of breaching them globally and in Australia. 

The Swedish Criminal Indictment  

In November 2021, the Chairman and former Chief Executive Officer (CEO) of Swedish oil company, Lundin Energy (formerly Lundin Oil AB), were charged with complicity in war crimes for their alleged involvement in the forcible displacement of civilians in Sudan between 1999 and 2003. 

The charges follow a decade long investigation by Swedish authorities into the operations of Lundin Energy, which, during the Second Sudanese civil war, was alleged to have paid the former Sudanese Regime to secure a prospective oil site called ‘Block 5A’ in southern Sudan (now South Sudan). Swedish authorities claim that the army and supporting militia of the Regime led a series of offensive military operations in Block 5A, attacking and abducting civilians, plundering, and burning entire villages in order to secure the area for oil exploits. Based on a report by the European Coalition for Oil in Sudan, it is estimated that as many as 12,000 died and 160,000 were displaced from the Block 5A area because of these attacks.  

While these war crimes were directly committed by the former Sudanese Regime led by former President Omar al Bashir, who currently faces charges of war crimes, crimes against humanity and genocide in the International Criminal Court, Lundin Energy and its two executives are also facing action by Swiss authorities for their alleged indirect role in aiding and abetting such crimes.  

In particular, Swedish Prosecutors claim that the accused executives ‘had decisive influence on [Lundin Energy’s] business in Sudan’, with Chief Public Prosecutor Krister Petersso stating that ‘what constitutes complicity [in this case] in a criminal sense is that [company executives employed the former Sudanese Regime] despite understanding or, in any case being indifferent to [the way in which they were conducting such operations]’. 

While the both the accused and the company deny the charges, if convicted, the accused individuals face up to lifetime imprisonment. Lundin Energy itself also faces forfeiture of up to 1.4 billion Swedish Krona in profits made from the sale of its business in 2003 (totalling to over AUD$211 million). 

With the proceedings set to take place early this year, this is the first time since the Nuremberg Trials where executives of a listed company will be tried for war crimes. This case serves as a timely reminder of the potentially grave legal risks and consequences for companies that fail to appropriately scope, understand, prevent and mitigate risk factors associated with operating business in armed conflict zones.  

International Humanitarian Law 

For companies, international humanitarian law (‘IHL’), also known as the ‘laws of war’, provides the most comprehensive framework for understanding and measuring acceptable behaviour during times and places of armed conflict. As a specialised body of law codified under the four Geneva Conventions and their Additional Protocols, IHL seeks to limit the way in which war is waged by regulating the means and methods of warfare and protecting those who are not, or no longer, taking part in hostilities. 

IHL is binding not just on States, soldiers, and organised armed groups, but also upon corporations and business personnel conducting operations in armed conflict. Directors, employees, and agents of companies, as well as the corporate entity itself, can be held criminally responsible for grave breaches of IHL and face prosecution for war crimes.

International Criminal Law and War Crime Offences

Under international criminal law, liability for corporate actors is restricted to individual culpability, with executives, agents and employees of companies able to be prosecuted for war crimes and other serious international crimes such as genocide and crimes against humanity. From as early as the Nuremburg Trials, executives of German companies and banks were convicted of war crimes for acts such as pillaging occupied territories and funding the Schutzstaffel (or the ‘SS’, the paramilitary branch of the Nazi Party).  

Australia’s domestic laws are broader in application and can hold both corporate individuals and the corporate entity itself to account for their actions in armed conflict. Individuals and corporations can be held criminally responsible for grave violations of IHL under division 268 of the Criminal Code Act 1995 (Cth) (‘Criminal Code’), which codifies 78 different war crimes ranging from offences such as wilful killing, attacking civilians, torture and sexual crimes, to offences including the employment of prohibited weapons or warfare, use of child soldiers and the unlawful deportation or transferring of civilian populations. Corporations convicted of war crimes are liable to significant fines: five times those that could be imposed on individuals. Currently, such maximum penalties range from AUD$666,000 to $2,220,000. 

Division 12 of the Criminal Code sets out the legal regime for corporate criminal responsibility, with section 12.1(2) providing that a company may be found guilty of any offence, including crimes punishable by imprisonment such as war crimes. Where an employee or agent physically commits a war crime in the actual or apparent scope of their employment, both the individuals and company may be criminally responsible. A company can be responsible for their employees’ actions if the company authorised, directed, or otherwise encouraged, tolerated or failed to prevent certain acts. This framework of liability shows that company culture cannot be accepting of, or indifferent towards, the way they conduct business in places of war. 

Business Activities in Armed Conflict

Certain daily operations of companies carrying out business during armed conflict can potentially result in liability for war crimes. For example, companies that: 

• over-exploit natural resources, appropriate property for private use without the owner’s consent, or seize property from adverse or enemy parties may be liable for a range of war crimes under the Criminal Code, including pillaging, destruction or appropriation of property, or destruction or seizure of enemy or adversary property.   

• use armed personnel to forcibly evict civilians from prospective business sites, or engage in operations which destroy homes or land, or otherwise render residential or agricultural land uninhabitable to locals, may be liable under the Criminal Code for offences relating to the transfer or displacement of civilian populations. 

• contract private or government security forces to defend business sights, depending on the nature and terms of the corporation’s engagement, may be exposed to liability for any war crimes committed by such forces, such as those arising from attacking civilians or other serious violations of IHL 

• manufacture or trade prohibited weapons, components or chemicals, or companies that provide logistical, financial, information or transport services to armed groups during armed conflict may be complicit in war crimes where they directly or indirectly facilitate the commission of war crimes by others.  

Prosecutions in Australia 

It must be noted that, to date, there have been no prosecutions brought in Australia under the Criminal Code, let alone any against corporate defendants. As noted above, there currently exists no international court in which a war crimes prosecution of a corporation could be pursued. A further relevant consideration is that, in respect of war crimes, Australian law claims universal jurisdiction, enabling prosecutions regardless of territorial link between Australia and the alleged crime or offender. Given, however, that a war crimes prosecution cannot be commenced in Australia without the consent of the Attorney-General, it might be thought that there will be restraint in exercising such jurisdiction. 

Corporate liability 

Although not the focus of this post, a holistic discussion on Australian law potentially applicable to the commission war crimes should also include alternative legal mechanisms. The ‘money trail’ from illegal conduct involving businesses in war zones could include prosecutions for money laundering, or civil proceedings under the Proceeds of Crime Act. Additionally, Australia’s recent enactment of a ‘Magnitsky-style Act’ means that autonomous sanctions can be imposed on entities that have been involved in the commission of serious violations of IHL. 

Importance of IHL

Whilst Australian authorities have not yet commenced a prosecution of a corporation for war crimes, the Swedish example of Lundin Energy should serve as a stark reminder to Australian companies doing business in conflict zones that the prospect of legal accountability for involvement in violations of IHL is very real. Indeed, as noted above, there is no shortage of an Australian legal framework that would enable this to occur. A move to prosecutions of ‘white collar war crimes’ might be viewed as reflective of a broader global trend towards clamping down on financial support for often violent vices of international concern.   

It is crucial that Australian companies operating in conflict zones understand the principles of IHL and how they apply to their business. Australian Red Cross, along with RMIT University, have developed a series of IHL resources to assist companies improve their IHL understanding and implementation, including: 

• A Practical Guidance Document: Doing Responsible Business in Armed Conflict, which provides an introduction to IHL and its relevance to business and explores seven indicators of corporate best practice for IHL, focusing on IHL implementation and risk management across business policy; capacity and capability; operations; and transparency and accountability. 

• An interactive scenario-based e-learning module for business and law students called ‘War, Law and Business: A module on international humanitarian law for future business leaders’, which places the student in the shoes of a CEO of a major mining company, as they navigate a fictitious, but realistic crisis scenario, and learn how to apply IHL in legal and ethical decision-making and risk management when conducting business in a conflict zone.  

Pranamie Mandalawatta is a Legal Advisor at the Australian Red Cross International Humanitarian Law (IHL) Department responsible for managing the Department’s engagement with the Australian Government and legal sector, including the judiciary. Pranamie has a background in IHL, international criminal law, human rights and cyber law. She formerly acted as a senior legal officer in the Office of International Law at the Australian Attorney General’s Department and has also worked as a criminal defence lawyer at Sydney-based law firm, Nyman Gibson Miralis. Pranamie holds a Masters in public international law from the Australian National University and has interned at the United Nations International Residual Mechanism for Criminal Tribunals.

Liam MacAndrews is currently a Senior Solicitor at Nyman Gibson Miralis, Sydney, working in criminal defence.  His practice covers international/transnational criminal matters as well as financial crime cases.  Previously, Liam worked in international criminal law at the Extraordinary Chambers in the Courts of Cambodia.  Liam also works as a sessional academic at the Queensland University of Technology.