Category: Articles

International Human Rights Law ‘In Here’: Bail Reform in Victoria – Jennifer Keene-McCann

Editors Articles

Jennifer Keene-McCann brings international human rights law home to Victoria’s Bail Act 1977.  

When I teach international law, I often wave my hands in the air separating the ‘domestic sphere’ and the ‘international sphere’. This separation, I explain, is how something could be lawful in the domestic sphere but unlawful in the international. Australia is a dualist system; we can commit to particular principles on the international stage and choose not to implement them domestically.  

This separation is partly why I imagine many domestic practitioners do not see international law as a part of their ‘toolbox’ – it exists ‘out there’ somewhere. But international legal principles provide excellent support for strategic litigation.  

A perfect example of this is bail.  

Victoria further tightened its laws in 2017 and 2018 by increasing the number of offences subject to what is referred to as a ‘reverse onus’ test for granting bail (outlined further below). Now, there is growing concern that not only are provisions in Victoria’s Bail Act 1977  (Bail Act or the Act) too harsh, they are also disproportionately effecting Victoria’s most vulnerable.  

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Can international criminal law protect the environment? – Stephanie Erian

Editors Analysis, Articles

In June 2021, a panel of legal experts convened by the Stop Ecocide Foundation (called the Independent Expert Panel for the Legal Definition of Ecocide (Panel)) unveiled a proposal to make mass environmental destruction an international crime (Proposal). The Proposal involves adding new Article 8 ter to the Rome Statute of the International Criminal Court (ICC), which would place ecocide alongside existing international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Although encouraging to see environmental protection as the focus of international legal efforts, the Proposal raises serious questions for international criminal law practitioners. Some of these are considered below. 

So, what’s the proposed definition?

The Panel defines ecocide as ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts’ (Proposal, p 5). 

A number of aspects of the draft definition are drawn from existing international law agreements, making its construction feel more familiar. For example, the Proposal reflects the structure of Article 7 of the Rome Statute relating to crimes against humanity: the first paragraph sets out the crime, and the second paragraph defines the crime’s core elements. In terms of language, the words ‘widespread’, ‘long-term’ and ‘severe’ replicate those in Article 8(2)(b)(iv) of the Rome Statute concerning damage to the environment during international armed conflict. This article prohibits intentionally conducting an attack in the knowledge that it will cause ‘widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’. New Article 8 ter would essentially extend this war crime to times of peace, and cover environmental damage that is both cumulative and alternative (‘severe and either widespread or long-term’).

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The War on Human Rights: Countering Duterte’s dismissal of the ICC Probe

Editors Articles

Aisiri Raj, Rahul Rajasekar and Lekha Suki make a case for extending International Criminal Responsibility to Filipino President Duterte and the law enforcement officials for their failure to guarantee the right to life and protect their civilians from the unjustified use of force by the police officials. 

In June 2021, the Prosecutor of the International Criminal Court (ICC) requested judicial authorisation to investigate extrajudicial killings in the Philippines, bringing Philippine President Duterte’s ‘War on Drugs’ campaign back into the spotlight. Since 2016, over 7,000 such killings have been reported, and only one instance resulted in the conviction of police officials for the use of excessive force. However, President Duterte is largely dismissive of the probe, asserting that the War on Drugs is a sovereign exercise in the interest of national security and justifying extrajudicial killings as the law enforcement personnel’s right to self-defence. This article analyses the failure of the State to guarantee the right to life and to protect its civilians from the unjustified use of force by police officials in the Philippines. 

The Justification of Self-Defence under International Human Rights Law 

Under the assertion of self-defence, the wide-ranging powers granted to police forces in the Philippines do not follow the requisite due process obligations to conduct investigations and collect evidence but instead use lethal and unjustified force on ‘mere suspicion’ that individuals might be in possession of illicit drugs. According to the Office of the High Commissioner of Human Rights (OHCHR) Principles on the Use of Force and Firearms by Law Enforcement, force can only be used as a last resort when other means are ineffective. The absence of verbal warnings and directions by police to surrender violates the binding principles of necessity and proportionality under the general principles governing the use of force. This principle has been recognised by the Supreme Court of Philippines, which held that the presence of an ‘imminent threat’ is the required threshold for exercising proportionate self-defence in the course of public duty.  

The Philippines, being a State Party to the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), must guarantee the right to life to all its civilians. The justification of self-defence is not absolute in International Human Rights Law (IHRL), where the right to life is non-derogable, and its deprivation cannot be arbitrary. The blanket justification of self-defence by the law enforcement was similarly invoked in Suarez De Guerrero v Colombia (Communication No 45/1979) and was rejected by the United Nations (UN) Human Rights Committee on the grounds that disproportionate killing of suspects is an arbitrary deprivation of the right to life under Article 6(1) of the ICCPR.  

Further, the acts of the police officials violate the drug suspect’s right to fair trial under Article 10 of the UDHR by denying them the opportunity to be heard and the right to legal counsel. The arbitrary manner in which the killings were carried out violates the requirement of presumption of innocence under Article 14(2) of the ICCPR, whereby a suspect’s guilt must be determined by affording them a fair and impartial trial. This arguably represents a complete failure of the constitutional machinery as well as the judiciary in the Philippines in ensuring access to justice. The Philippines has violated its obligations under IHRL since the acts of law enforcement do not constitute a justified use of self-defence which, as explained below, is a relevant finding for the ICC’s jurisdiction to prosecute. 

Criminal Responsibility for Crimes against Humanity under International Criminal Law  

According to the Special Prosecutor’s Office of the ICC, the actions taken pursuant to the “War on Drugs” policy may constitute crimes against humanity under Article 7 of the Rome Statute. The authors are of the opinion that the War on Drugs satisfies the elements of Article 7 for the following reasons: 

  1. First, it is an organised state-sanctioned policy with large-scale, systematic violence committed against the civilian population. 
  1. Secondly, President Duterte’s explicit orders require law enforcement to arbitrarily kill all drug suspects, indicating the presence of mens rea to carry out such acts. 
  1. Lastly, mens rea is further evident in the actions of the State by granting complete impunity from prosecution to the police responsible for such mass atrocities and perversely rewarding them for extrajudicial killings. 

The large-scale and widespread nature of this deprivation of life constitutes a systematic ‘murder’ of civilians under International Criminal Law (ICL), specifically under Article 7(1)(a) of the Rome Statute. The proximity between IHRL and ICL implies that serious violations of human rights are regarded as crimes against humanity. For instance, the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Karadzić (Case no IT-95-5/18-T, 6 April 2009)  noted the confluence between the deprivation of human rights and crimes against humanity in instances of torture and rape, as an attack on human dignity. This can be reasonably applied to the present case as murder in the form of extrajudicial killings are IHRL and ICL violations worthy of prosecution by the ICC.  

President Duterte’s claims that the ICC has no jurisdiction over the Philippines due to its withdrawal from the ICC in 2019. However, international criminal responsibility would be extended to President Duterte and the law enforcement officials responsible for mass atrocities committed, as a termination of consent to the Rome Statute does not constitute immunity from prosecution since the ICC retains jurisdiction over crimes committed during the time the Philippines was a State Party from 2011 to 2019.

Failure of R2P Obligations 

The refusal of the Filipino Government to acknowledge the human rights violations, investigate and order State agents to stand down, is reflective of the failure of its responsibility to protect (R2P) obligations to its civilians. This norm places an obligation on States to guarantee to their civilian population the basic human rights of safety and security to prevent mass atrocities in their territory.  

Pillar I of R2P emphasises the sovereign responsibility to monitor and prevent any atrocity before it occurs through effective cognisance, sanction, monitoring and fair trial.  In casu, the existing state structures such as the National Prosecution Service under the Department of Justice required to initiate prosecutions on human rights violations, the National Ombudsman, which is constitutionally empowered to undertake investigations in cases of unlawful and illegal acts of the police, and the National Human Rights Council, have failed to prevent mass killings and protect the rights of the civilians. The welfare approach of R2P places a responsibility on the Philippines to protect and guarantee the welfare of its population. However, Duterte’s government deems countering narcotics through extrajudicial killings as the most suitable way to handle the drug problem.  

The international community has remained silent over the UN Human Rights Council’s failure to investigate the extrajudicial killings in the country. As Gallagher et al note, Association of South East Asian Nations (ASEAN) States, China and Russia value diplomatic relations and the principle of non-interference, and have maintained that the War on Drugs is a domestic concern, legitimising the stance of the Filipino Government. Therefore, the initiation of the ICC Probe is a means of upholding Pillar II of the R2P, the responsibility of the international community to assist States in protecting their populations, as it attempts to launch an international investigation to punish President Duterte and the law enforcement officials, who are accountable for the mass killing of their population. Therefore, it is necessary for the rest of the international community to take collective action and support the work of the UNHRC and the ICC to ensure justice for the victims of state violence in the Philippines.  

Aisiri Raj, Rahul Rajasekar & Lekha Suki are fourth year Law (Honours) Students at School of Law, Christ University, Bengaluru, with academic and professional experience in International Human Rights Law, Constitutional Law and Public Policy in India.

New technology, equity and the law of the sea — Aline Jaeckel and Harriet Harden-Davies

Editors Analysis, Articles

Advancements in new technologies open up new ocean industries and possibilities to explore the ocean. Some of these new technologies, such as swarms of underwater mini robots to map the seafloor or sensors on automated underwater vehicles, assist scientists in their work and produce growing quantities of ocean data. Other technologies enable us to extract evermore resources from the ocean, be it wave energy, fish, genetic materials or seafloor minerals. Still others provide new ways to conserve marine ecosystems, such as the use of satellite technologies to monitor human activity at sea and detect illegal fishing in marine protected areas. 

Given the many possibilities offered by ocean technologies, the UN Decade of Ocean Science for Sustainable Development starting this year aims to stimulate innovation and access to new technology to increase ocean exploration. Yet, whether new technology will help us achieve the UN Agenda 2030 sustainable development goal of ‘leaving no-one behind’ and contribute to positive social, environmental and economic benefits will depend on how, where, and by whom ocean science and technology is used in pursuit of ‘sustainable development’. 

This calls for research and action into how ocean science and technology can address, rather than perpetuate, inequities between states and communities. International law provides the legal framework, though it is far from perfect.  

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The Paris Agreement’s White Whale: the hunt for greater ambition on shipping emissions — Tess Van Geelen

Editors Analysis, Articles

The shipping industry is often described as the ‘backbone’ of the international trade system, accounting for up to 90% of the global trade in goods. Even after the emergence of relatively affordable and much faster air freight, shipping continues to dominate due to its high efficiency and lower cost. Shipping is also generally seen as a greener alternative to air freight. According to some studies, shipping produces up to 40 times less CO2 equivalent than air freight.

Still, the sheer size of the fleet means that shipping makes a significant contribution to climate change. Current estimates put that contribution at around 2 or 3% of total global anthropogenic emissions. Shipping also causes a variety of other types of environmental damage, including oil spills, ship strikes that kill or wound marine animals, underwater noise pollution, and the transport of invasive species between ports.

Studies project that the rate of growth in shipping is likely to overwhelm recent efforts aimed at curbing emissions from the sector. Some studies have projected a future increase in emissions from shipping of up to 250% by 2050.

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Could Australia’s Environment Minister face prosecution at The Hague for “ecocide” due to climate change inaction? – Joshua Clarke

Editors Analysis, Articles

The recent report of the UN’s Intergovernmental Panel on Climate Change is the latest in a series of events building pressure on Australia’s climate policy sclerosis. When an expert legal panel published a definition of “ecocide” in June, it grabbed fewer headlines. But this international law milestone has potential implications for leaders globally. This article examines the proposed international crime of ecocide and considers what it means for political leaders whose countries are hindering global climate action.

A series of inconvenient events

It has been quite a month for headlines with temperature-related metaphors, and the news they were delivering was grim. On 9 August, the Intergovernmental Panel on Climate Change (IPCC) released part one of its sixth assessment report. In it, the UN body found that global warming of 1.5°C above pre-industrial levels could be upon us by 2030. With this prediction, the ambitions of the Paris Climate Agreement hang in the balance. The IPCC’s message is unequivocal: climate change is happening now and it is only through immediate, steep and sustained emissions reductions that catastrophe might be avoided. UN Secretary-General Antonio Guterres called the report a “code red for humanity”. 

Efforts to combat climate change will now need to redouble. But in this global campaign, few would regard Australia as a reliable ally. A report published in July on 193 countries’ progress towards the UN Sustainable Development Goals awarded Australia a score of only 10 out of 100 for climate action: the lowest awarded for any country. Australia’s high levels of exported greenhouse gas emissions and fossil fuel use per capita, plus its failure to make progress on implementing an effective price on emissions, earned the country its rock bottom ranking. It has not helped Australia’s standing that the country still conspicuously lacks a national commitment to carbon neutrality by 2050. And with the IPCC’s latest findings that urgent action in this decade is imperative, Australia’s unwillingness to update its 2030 emissions reduction targets since they were set in 2015 reads as defiance.

In commentary on Australia’s “climate wars”, the IPCC report now dominates: will it deal a decisive blow to climate policy stagnation as COP26 — the next UN Climate Change Conference — approaches in November? In the shadow of the IPCC report, it is easy to overlook other pertinent developments of the past few months. In July, Australia’s Great Barrier Reef narrowly avoided being classified by UNESCO as a world heritage site “in danger” primarily due to the threat posed by climate change. About the same time, Australia’s Federal Court declared that the Environment Minister Susan Ley, when determining whether to approve a coal mine project, owed a duty of care to avoid causing harm to children in Australia arising from emissions of carbon dioxide into the Earth’s atmosphere. The minister has appealed, but the Federal Government has since been hit with further lawsuits challenging its decisions for failing to take climate change into account, including in relation to a forest logging agreement and a gas exploration project. 

Amidst this flurry of activity, one milestone reached in international law went relatively unnoticed. But perhaps in time, this significant development may come to focus minds in Canberra and around the world on the necessity for climate action. 

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What does it take to violate Article IV of the Outer Space Treaty: Looking to Artemis for the celestial answer – Manasa S Venkatachalam

Editors Analysis, Articles

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 1967, also known as the Outer Space Treaty (OST), has long emphasised the need to use outer space for peaceful purposes, particularly when it comes to celestial bodies like the Moon. Along these lines, it becomes important to note the spreading international acceptance of the Artemis Accords (Accords) with Australia being one of the first to sign back in 2019 and most recently, Brazil becoming the first South American nation to sign. The objective of this international effort is to promote utilisation of space resources, particularly the recovery of resources from the surface or subsurface of celestial bodies like the Moon and Mars and other objects like asteroids and comets (Section 10 of the Accords). 

In this context, there could arise a situation where these resources are applied for military purposes, which then brings up the question as to the legality of such use. Thus, is important to understand what exactly the term “peaceful” means in the context of the OST and existing customary international law (CIL).

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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

Editors Analysis, Articles, Book Reviews

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

Editors Analysis, Articles

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

Editors Analysis, Articles

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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