A Third Approach to the Law of Armed Conflict: Reading the Lieber Code as Strategic Lawfare

In part three of the introduction to The Laws of Yesterday’s War (edited by Samuel White), Christopher M. Bailey examines the lasting legacy of the Lieber Code on the Law of Armed Conflict. Part one and Part two of The Laws of Yesterday’s War series are also online. 

Today’s security environment is increasingly defined by a range of advanced technologies involving artificial intelligence, outer space access, 3D printing and cyberspace. Actors around the globe are wrestling with the opportunities and risks inherent in technological advancement and change. In the face of these changes, actors are becoming more aware that they must consider the impact these advancements will have on the law of armed conflict (LOAC) and how LOAC might restrict or enable these capabilities in conflict. At the core of these debates is the implicit question; what role should the law play in the context of war: a neutral arbiter attempting to regulate and minimise the harms of conflict or a means for States to prioritise the use of force?.   

This debate, however, is nothing new and the tension over the role of the law in armed conflict has parallels throughout history. In Samuel White’s new book, The Laws of Yesterday’s Wars, I assess this same tension during the 1861-1865 United States Civil War with a particular focus on the role law played in the Union’s strategy against the Southern Confederacy. It was the law professor and Union Army adviser, Francis Lieber, who ultimately crafted a third approach to the role of law in conflict in General Orders No. 100, popularly known as the Lieber Code. Instead of viewing the law either as a set of neutral rules that overlay armed conflict or more pessimistically as a mechanism that only serves to legitimise force, Lieber recognised that the law itself can be a point of contest and conflict in war.      

Law as a Neutral Arbiter or Mechanism to Legitimate the Use of Force 

A traditional view of LOAC is that the law’s central role in armed conflict is to reduce the harm suffered by all combatants. In this view the law is neutral to the participants, and instead shapes the conflict ‘environment’ equally for all parties in order to reduce the suffering of all participants, whether a combatant or bystander. This traditional view is often associated with Henry Dunant, the founder of the International Committee for Relief to the Wounded, the precursor to today’s International Committee of the Red Cross (ICRC), in the mid-19th century. According to this view, LOAC’s primary role is to limit or reduce the worst harms of war. This view is even reflected in the different phrases used to describe LOAC including ‘international humanitarian law’ or IHL. 

In contrast, some commentators take a more critical view of the role of LOAC and instead point to its use to legitimise the use of force as simply another tool of States to impose their will. Under this view, the law enables States to wage conflict as it is States themselves that create the legal boundaries and restrictions of armed conflict. Scholars often cite this view when arguing that States’ humanitarian concerns are secondary to the ability to rationalise or justify the use of force. While scholars have debated the morality and ethical implications of this view and some have even argued the Lieber Code as evidence of law used to legitimise force, I argue that there is a subtle but important nuance in the Lieber Code that implicitly articulated a third approach to the use of law in war.    

Articulating the Lieber Code as a Form of Strategic Lawfare 

Commissioned in 1862 by President Abraham Lincoln and the Union Army, Lieber’s stated task was to create a document that codified the existing laws of war at the time. Since its inception, the Lieber Code has been lauded as the United States’ first codification of the laws of war.  While the Lieber Code certainly did represent this codification, I argue that the Lieber Code’s true legacy for LOAC was Lieber’s implicit assessment that the law itself could be used to achieve military effects or objectives, a concept today that is popularly known as ‘lawfare’.  Lawfare as a term often views the law itself as a point of contest and conflict between the parties, where combatants actively try and shape the narrative and legal analysis to enable their military strategies against the other.   

To best understand how the Lieber Code can be seen as a form of strategic lawfare, my chapter in The Laws of Yesterday’s Wars first addresses the role political and cultural ideology played in shaping public perceptions of the Civil War. A key issue at stake was how the laws of war would be applied to the conflict. The chapter explores how differing views on what law should apply to the Civil War conflict became a hotly contested issue due to two key aspects of the code: 1) the concept of military necessity in military targeting, and 2) authorisation to free any enslaved people held by an opposing force. These sections of the Lieber Code, when read together, provided the Union Army a powerful legal argument to target the Southern Confederacy’s war sustaining economy and the institution of slavery itself.   

Relying on the historical research and insights of scholars like John Fabian Witt and Sir Adam Roberts, I argue these provisions of the Lieber Code in particular were not designed to be neutral to the parties nor just a pessimistic tool for the State to enforce its will, but instead a recognition that the law can and will be disputed and contested in conflict between the warring parties.  Understanding what was at stake in the Civil War, Lieber’s work should be viewed as a strategic form of lawfare.   

The lasting legacy of the Lieber Code is that LOAC is not static but dynamic.  This contest is visible today as commentators, scholars and practitioners alike attempt to codify, advocate and shape both the law itself and its interpretations. Whether in new conflicts or wrestling with new technologies, Lieber’s dynamism highlights that LOAC can be shaped by a range of actors and while there is a risk that LOAC could be misused or subverted to justify illegitimate force, it can also innovate in order to expand humanitarian protections while enabling legitimate force. Thus, which path the law takes in war is a conflict all its own. 

Christopher M. Bailey currently serves as a United States Air Force judge advocate. He has a Master of Laws degree in Space, Cyber, and Communications Law from University of Nebraska College of Law and a Juris Doctor degree from Chicago-Kent College of Law. 

The views expressed are those of the author and do not reflect the official policy or position of the U.S. government, the Department of Defense, or the U.S. Air Force. Further, the appearance of external hyperlinks does not constitute endorsement by the Department of Defense of the linked websites, or the information, products, or services contained therein. 

Events and Opportunities – June 2022

Jobs

Internships, various UN departments and agencies, various locations

A variety of UN internship positions are currently open. Please see the following links for internship positions:

https://careers.un.org/lbw/jobdetail.aspx?id=171244&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=170949&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=166998&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=167956&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=166988&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=167348&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=178768&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=174490&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=172991&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=182791&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=182784&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=175219&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=180225&Lang=en-US

https://career5.successfactors.eu/career?career_ns=job_listing&company=1657261P&navBarLevel=JOB_SEARCH&rcm_site_locale=en_GB&career_job_req_id=22002&selected_lang=en_GB&jobAlertController_jobAlertId&jobAlertController_jobAlertName&browserTimeZone=Europe/Paris&_s_crb=t5h9KYg7eE9T%2BP4Qkw9FfU8CJpDyT5auoYciFvdM9vw%3D

https://career5.successfactors.eu/career?career_ns=job_listing&company=1657261P&navBarLevel=JOB_SEARCH&rcm_site_locale=en_GB&career_job_req_id=22098&selected_lang=en_GB&jobAlertController_jobAlertId&jobAlertController_jobAlertName&browserTimeZone=Europe/Amsterdam&_s_crb=L1oYmr2HK09IiaIRYoaqbR4NEWvY%2ByGqznYTsKxoSBQ%3D

https://career5.successfactors.eu/career?career_ns=job_listing&company=1657261P&navBarLevel=JOB_SEARCH&rcm_site_locale=en_GB&career_job_req_id=22100&selected_lang=en_GB&jobAlertController_jobAlertId&jobAlertController_jobAlertName&browserTimeZone=Europe/Amsterdam&_s_crb=L1oYmr2HK09IiaIRYoaqbR4NEWvY%2ByGqznYTsKxoSBQ%3D

https://career5.successfactors.eu/career?career_ns=job_listing&company=1657261P&navBarLevel=JOB_SEARCH&rcm_site_locale=en_GB&career_job_req_id=22099&selected_lang=en_GB&jobAlertController_jobAlertId&jobAlertController_jobAlertName&browserTimeZone=Europe/Amsterdam&_s_crb=L1oYmr2HK09IiaIRYoaqbR4NEWvY%2ByGqznYTsKxoSBQ%3D

https://career5.successfactors.eu/career?career_ns=job_listing&company=1657261P&navBarLevel=JOB_SEARCH&rcm_site_locale=en_GB&career_job_req_id=22119&selected_lang=en_GB&jobAlertController_jobAlertId&jobAlertController_jobAlertName&browserTimeZone=Europe/Amsterdam&_s_crb=L1oYmr2HK09IiaIRYoaqbR4NEWvY%2ByGqznYTsKxoSBQ%3D

https://career5.successfactors.eu/sfcareer/jobreqcareer?jobId=21719&company=1657261P

https://career5.successfactors.eu/career?career_ns=job_listing&company=1657261P&navBarLevel=JOB_SEARCH&rcm_site_locale=en_GB&career_job_req_id=21361&selected_lang=en_GB&jobAlertController_jobAlertId&jobAlertController_jobAlertName&browserTimeZone=Europe/Amsterdam&_s_crb=%2BAmvpbIt%2BKCP6ZOLfyBYLxS8VE0/idjfeY%2BWBM6MVQw%3D

https://career5.successfactors.eu/career?career_ns=job_listing&company=1657261P&navBarLevel=JOB_SEARCH&rcm_site_locale=en_GB&career_job_req_id=21362&selected_lang=en_GB&jobAlertController_jobAlertId&jobAlertController_jobAlertName&browserTimeZone=Europe/Amsterdam&_s_crb=%2BAmvpbIt%2BKCP6ZOLfyBYLxS8VE0/idjfeY%2BWBM6MVQw%3D

https://career5.successfactors.eu/career?career_ns=job_listing&company=1657261P&navBarLevel=JOB_SEARCH&rcm_site_locale=en_GB&career_job_req_id=21370&selected_lang=en_GB&jobAlertController_jobAlertId&jobAlertController_jobAlertName&browserTimeZone=Europe/Amsterdam&_s_crb=%2BAmvpbIt%2BKCP6ZOLfyBYLxS8VE0/idjfeY%2BWBM6MVQw%3D

Legal Consultant, International Rescue Committee, Tripoli

Applications are accepted now: https://www.impactpool.org/jobs/819511?utm_source=impactpool-job-opportunities&utm_medium=email&utm_campaign=job-alerts-2022-06-15&fbclid=IwAR2qjEhEIEUQGxHn6NzDiuWW9kNzjpsh_BpZCVrxRQRukH2aoBznND-LVqw

International Humanitarian Law Advisory Committee Member – Chairperson – NSW, Sydney

Applications close on 21 June 2022: https://volunteering.redcross.org.au/cw/en/job/498377/international-humanitarian-law-ihl-advisory-committee-member-chairperson-nsw

Legal Officer, P3, Economic Commission for Europe, Geneva

Applications close on 24 June 2022: https://careers.un.org/lbw/jobdetail.aspx?id=178722&Lang=en-US 

Legal Officer, P3, United Nations Verification Mission in Colombia, Bogota

Applications close on 24 June 2022: https://careers.un.org/lbw/jobdetail.aspx?id=181882&Lang=en-US 

Human Rights Officer, P4, UN Office of the High Commissioner for Human Rights, Beirut

Applications close on 26 June 2022: https://careers.un.org/lbw/jobdetail.aspx?id=181191&Lang=en-US&fbclid=IwAR2UX5cUKHuZKYZ_oGF0BGKdkAylxHQztuVOGVxGFgzqUEfUeNnUvj1xXTQ

Advisor to the Prosecutor, International Criminal Court, The Hague

Applications close on 27 June 2022: https://career5.successfactors.eu/sfcareer/jobreqcareer?jobId=22004&company=1657261P

Legal Advisor, Middle East and North Africa Programme, International Commission of Jurists, Tunis

Applications close on 29 June 2022: https://www.icj.org/wp-content/uploads/2022/06/VA-Legal-Adviser-_June-2022.pdf

Armed Forces and Non-State Armed Groups Delegate, International Committee of the Red Cross, Global Deployment Option

Applications close on 30 June 2022: https://careers.icrc.org/job/Geneva-%28GVA%29-Armed-Forces-and-Non-State-Armed-Groups-Delegate-18426/803044401/

Legal Officer, P4, United Nations Organisation Stabilization Mission in the Democratic Republic of the Congo, Kinshasa

Applications close on 5 July 2022: https://careers.un.org/lbw/jobdetail.aspx?id=183161&Lang=en-US

Legal/Evaluation Officer, P3, UN Office of Legal Affairs, New York

Applications close on 6 July 2022: https://careers.un.org/lbw/jobdetail.aspx?id=179375&Lang=en-US

Humanitarian advisor on forced migration, Medecins Sans Frontieres, Brussels

Applications close on 6 July 2022: https://reliefweb.int/job/3857041/humanitarian-advisor-forced-migration-mfx-msf-belgium?fbclid=IwAR32b-XQXx-Kc9m0u9cXtfBFf5fZ8GLSFebgWn2s7G3lc94MJXU2wG0p8MA

Senior Legal Officer, P5, International Residual Mechanism for Criminal Tribunals, The Hague

Applications close on 7 July 2022: https://careers.un.org/lbw/jobdetail.aspx?id=183007&Lang=en-US

Legal Officer, P3, International Residual Mechanism for Criminal Tribunals, The Hague

Applications close on 7 July 2022: https://careers.un.org/lbw/jobdetail.aspx?id=182468&Lang=en-US

Associate, Crisis and Conflict, Human Rights Watch, New York or Washington DC

Applications close on 10 July 2022: https://boards.greenhouse.io/humanrightswatch/jobs/6215748002

Legal Assistant, G6, UN Office of Legal Affairs, New York

Applications close on 12 July 2022: https://careers.un.org/lbw/jobdetail.aspx?id=183925&Lang=en-US 

Legal Officer, P3, United Nations Human Settlements Programme, Nairobi

Applications close on 24 July 2022: https://careers.un.org/lbw/jobdetail.aspx?id=181653&Lang=en-US

Visiting Professional – Chambers/Cae Law Database, International Criminal Court, The Hague

Applications close on 24 July 2022: https://career5.successfactors.eu/sfcareer/jobreqcareer?jobId=21718&company=1657261P

Further study and research opportunities

Postgraduate fellow, Just Security, New York

Applications close on 30 June 2022: https://www.justsecurity.org/just-security-is-hiring-postgraduate-fellow/

Research Associate, Oceans Law and Policy Team, National University of Singapore

Applications close on 15 July 2022: https://careers.nus.edu.sg/NUS/job/Bukit-Timah-Estate-Research-Associate%2C-Oceans-Law-and-Policy-Team-Buki/8929944/

Brennan and Nygh Prizes

The Australian Branch of the International Law Association is calling for submissions for the Brennan Essay Prize in Public International Law and the Nygh Essay Prize in Private International Law. Submissions are due on 15 July 2022 and further details are available on the ILA (AB)’s website: ila.org.au. 

Events

Introductory course – Fundamentals of International Humanitarian Law

The College of Law Western Australia is hosting a three-hour introductory course on IHL on 21 June 2022. More information here: https://events.humanitix.com/fundamentals-of-international-humanitarian-law?_ga=2.219375129.108101072.1654236628-1211498612.1654236628

International Insolvency Research Symposium: “Insolvency Current Issues”

Hosted online 12-14 July 2022 by the University of Sydney. More information here: https://law-events.sydney.edu.au/events/international-insolvency-research-symposium-insolvency-current-issues

Australian Red Cross Book Group: Gareth Evans

The Australian Red Cross Book Club has regular Readings sessions. On 27 July 2022, the club will be joined by former Australian Foreign Minister Gareth Evans AC QC to discuss his new book on good international citizenship. More information here: https://www.readings.com.au/event/australian-red-cross-book-group-gareth-evans

Call for Submissions: Brennan Essay Prize in Public International Law and the Nygh Essay Prize in Private International Law

The Australian Branch of the International Law Association is calling for submissions for the Brennan Essay Prize in Public International Law and the Nygh Essay Prize in Private International Law. These two prizes – named in honour of Sir Gerard Brennan, former Chief Justice of Australia and Patron of the Branch, and Dr Peter Nygh, a leading Australian scholar of private international law and former President of the Branch – are awarded to the authors of essays in the field of public international law and private international law (conflict of laws).

The prizes are awarded for essays that, in the opinion of a judging panel of three persons appointed by the Management Committee of the Australian Branch of the International Law Association, demonstrate outstanding scholarship and make a distinct contribution to an understanding of the subject.

The prizes are open to any Australian citizen, or person normally resident in Australia, or studying in Australia. The competition is intended to recognise and encourage achievement by a younger scholar or practitioner (a student or within five years of graduation). The judging of the essays will consider the stage of career of the entrant and assess those entries relative to opportunity to account for different levels of experience. The decision of the panel shall be final.

Each prize will be in the form of a certificate, a year’s membership of the International Law Association, and cash in the amount of $500.

Essays submitted in consideration for the prize should be between 5,000 and 8,000 words in length (including footnotes). They may have been submitted previously for course credit in an academic institution but not published or submitted for publication. An electronic copy must be submitted along with a short CV clearly indicating stage of career.

The essay must be the sole creation and original work of the entrant. No person may submit more than one entry for each annual competition.

The winner will be encouraged to submit the winning entry to the Australian International Law Journal for publication. The award does not guarantee that it will be published in the Journal.

Essays for the prize to be awarded in 2022 should be sent to the email address of the Secretary of the Australian Branch at secretary@ila.org.au . Entries must be received no later than 15 July 2022. The results will be made available on the web site of the ILA www.ila.org.au on (approximately) 31 August 2022. Winners will be notified by email.

Call for Applications: Assistant Editors

The ILA Reporter is calling for applications for Assistant Editors. These Assistant Editors will work in collaboration with the current Assistant Editors and Editors-in-Chief of the ILA Reporter. Applications are due on 24 June 2022.

What is the ILA Reporter?

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

What is the role?

The role of the Assistant Editors is to support the Editors-in-Chief by commissioning, editing and publishing articles for the Blog. Assistant Editors are engaged on a voluntary basis and are required to source and edit at least one article per month. There are also opportunities for Assistant Editors to have their own articles published on the blog. The ILA Reporter is looking to recruit three Assistant Editors to commence immediately and shortlist candidates for future recruitment in the next 6-12 months. The role is a great opportunity for those looking to gain experience in the field of international law with a well-respected non-government organisation.

Who are we looking for?

Candidates will ideally be in their penultimate or final year of an undergraduate law degree; undertaking an LLM or PhD in an international law-related field; or work in an international law-related field. The ILA Reporter is aware of how competitive international law opportunities can be, so a genuine interest in international law will be highly valued even if the individual has not had the opportunity to attain a great deal of international law-related work experience.

The candidates must be able to demonstrate their knowledge and interest in international law, which may be through studying international law courses during their degree, volunteer or pro bono work with an organisation connected with international law and/or research on international law-related topics. Candidates are invited to explain any areas of international law which are of particular interest or any topics or issues which they would be passionate about sharing with the ILA Reporter’s readership.

Strong written communication and legal research skills are essential.The ILA Reporter is committed to creating a diverse environment and equal opportunity in international law. We strongly encourage individuals of diverse characteristics with a passion for international law to apply, particularly those individuals who have been historically underrepresented in international legal scholarship.

How do you apply?

Please send a copy of your CV, a short statement of motivation (fewer than 500 words) and an example of a written work of at least 1,000 words to the Editors-in-Chief of the ILA Reporter, Molly Thomas and Josephine Dooley, at editor@ilareporter.org.au by 6:00 PM AEST on 24 June 2022. The written work need not be related to international law: candidates should select the written piece which best showcases their written communication skills.

Please feel free to send any questions about the positions to the above address.

Events and Opportunities – 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.

Event: ‘Unconventional Lawmaking in the Law of the Sea’: A Conversation with the Contributors, 26 May 2022

This event brings together many of the contributors to Unconventional Lawmaking in the Law of the Sea (Oxford University Press, 2022) for a conversation with the Editor, Professor Natalie Klein, to celebrate the book’s release. The event will be held online on Thursday 26 May 2022 from 5:00 pm to 6:00 pm AEST.

Contributors to the book include Tutku Bektas, Tara Davenport, Ellen Hey, Yurika Ishii, Marie Jacobsson, Elsa Kelly, Chie Kojima, Liesbeth Linjnzaad, Nilüfer Oral, Irini Papanicolopulu, Anna Petrig, Rosemary Rayfuse, Zoe Scanlon, Karen Scott, Zhen Sun, Erika Techera, Anastasia Telesetsky and Seline Trevisanut. The book’s Editor, Professor Natalie Klein, is a Professor at UNSW Sydney’s Faculty of Law and Justice, an Australian Research Council Future Fellow, and President of the International Law Association (Australian Branch).

This book examines the role of informal agreements and informal lawmaking in diverse areas of the law of the sea; highlights how diverse actors, processes, and non-binding agreements set standards and inform decision-making in ocean governance; covers contemporary topics such as maritime security, marine environment, fisheries, ocean resources, technology, shipping, and navigation; provides a fascinating case study of lawmaking in international law with valuable lessons for the law of treaties, state responsibility, and the sources of the law; and offers informed perspectives on law of the sea from specialist female scholars and practitioners from across the globe.

Registration is essential and via Eventbrite. This event is supported by the International Law Association (Australian Branch) and UNSW Sydney’s Faculty of Law and Justice.

Strategic Violation of Human Rights: Should the ICC Interfere with the Taliban’s Amnesty?

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. 

Atrocity crimes in Ukraine: What can Australia do?

Australia has rightly spoken out in condemnation of the allegations of war crimes and crimes against humanity in Ukraine, and has taken some tangible steps in support of Ukraine and its population including the supply of arms, and the possibility of humanitarian visas for Ukrainian refugees. There are, however, further steps Australia can take to provide a robust and meaningful response to these crimes: legislate the crime of aggression; assist in the creation of briefs of evidence; and, if appropriate, prosecute atrocity crimes domestically relying on universal jurisdiction.

Atrocity crimes in Ukraine: What can Australia do?

The massacre of civilians in the town of Bucha, the rape and torture of civilians, and targeting of hospitals, civilian refuges and humanitarian corridors are just some of the reports emerging from Ukraine towns, allegedly committed by Russian military forces. These are allegations of atrocity crimes, most notably war crimes, as well as the crime of aggression in relation to the unlawful nature of the invasion itself. Although neither Russia nor Ukraine are a State Party to the International Criminal Court (ICC), the ICC has jurisdiction to prosecute these crimes, with the exception of the crime of aggression.   

Ukraine voluntarily accepted ICC jurisdiction  for offences committed on its territory since April 2014, when Russia annexed Crimea. However, the absence of Russia’s consent to jurisdiction, and its ability to block the United Nations (UN) Security Council mechanism to refer a prosecution for aggression creates an accountability gap in prosecuting Russia’s Head of State, Vladimir Putin. While there have been calls to create a special tribunal to close this accountability gap, technical and political challenges may prevent this proposal from progressing. 

The international community continues to condemn the actions in Ukraine; many have called for Putin to be held accountable. The ICC and Ukraine have commenced investigations; and investigative teams have been sent separately by the UN Human Rights Council, and the Organisation for Security in Europe (of which Russia is a member) utilising the ironically titled ‘Moscow Mechanism’.   

Given these actions, what part can Australia play in ensuring these egregious acts do not go unpunished? 

First, it can take steps to legislate the crime of aggression; second, it can collate a criminal prosecution brief to either aid ICC or Ukrainian prosecutions – or even provide it to Russia to give the State an opportunity to prosecute their soldiers; and finally, in the absence of other prosecutions, seek to prosecute the crimes in Australia under the principle of universal jurisdiction.

Legislating the crime of aggression

The crime of aggression constitutes the fourth international ‘core’ crime, alongside genocide, war crimes, and crimes against humanity, over which the ICC has jurisdiction.  Under Article 8 bis (1) Rome Statute, the crime of aggression entails ‘the planning, preparation, initiation or execution…of an act of aggression which by its character, gravity and scale, constitutes a manifest violation of the Charter of the UN’, by a person in a position of power. It criminalises the acquisition of sovereign territory by force. With the activation of the ICC’s jurisdiction over aggression on 14 December 2017, the ICC can hold leaders individually criminally responsible for waging aggressive war for the first time since the Nuremburg and Tokyo trials. 

While near-universal consensus exists that Putin’s ‘special military operation’ constitutes an act of aggression, the ICC is unable to exercise jurisdiction over this crime in this instance. However, third States could also ensure accountability. State parties to the Rome Statute are obligated to criminalise the core crimes in their national legislation. To date, only 43 States – of which Australia is not one – have ratified the 2010 Amendments on the crime of aggression to the Rome Statute, also called the Kampala Amendments, which defined the crime of aggression. Even less have criminalised the crime domestically.  

There are no readily identifiable public statements that offer explanation as to why Australia has not taken steps to ratify the Kampala Amendments, nor to implement the offence of aggression domestically. This position is surely worthy of review in light of recent world events? To criminalise aggression domestically, Australia ought to ratify the Kampala Amendments and enact criminal legislation providing for the punishment of perpetrators of the crime.

Prosecution of atrocity crimes in Australia using universal jurisdiction

States including Sweden have indicated that they are commencing domestic criminal investigations into the alleged atrocity crimes being committed by Russian troops in Ukraine. The doctrine of universal jurisdiction enables such domestic criminal investigations, where States have enacted relevant domestic legislation. Division 268 of the Commonwealth Criminal Code ratifies most of the offences found under the Rome Statute and enables prosecution in Australia under the concept of ‘extended territorial jurisdiction’ (section 268.11). This technically allows for the prosecution of persons with no jurisdictional nexus to Australia, meaning the offending could be outside Australia, committed by a non-Australian citizen, and not impact an Australian citizen or property.   

Practically speaking, however, the prosecution will not occur unless Australia has physical custody of the alleged perpetrator, as Australia does not allow for in absentia trials (in recognition of the right to a fair trial under the International Covenant on Civil and Political Rights). Access to witnesses and evidence is also likely an obstacle to commencing criminal proceedings domestically. Absent political will, it is also unlikely that the Commonwealth Attorney-General will consent to the prosecutions, as is required for any Division 268 prosecutions to commence.  

Australia has not yet successfully prosecuted anyone under Division 268. It is also unlikely that  rank-and-file Russian soldiers would be prosecuted for atrocity crimes in Australian courts for numerous practical and pragmatic reasons, noting also that Australia may only conduct Division 268 prosecutions where no other genuine prosecutions are conducted elsewhere. Given the current work load of our Courts, such actions would unlikely proceed on an economy of effort basis as well.

Collection of evidence

However, investigations at the domestic level will not – and should not be – the principle avenue for achieving justice.  Several States including Australia are resourcing investigations on the ground conducted by the Ukrainian prosecutor’s office, the OSCE, the UNHCR and the ICC. The provision of investigators as well as funding is a meaningful way to enhance the ability to ensure accountability for these crimes, but it is by no means a swift or comprehensive form of justice. Access to and preservation of evidence, access to the alleged perpetrators (and access to information to aid in identifying perpetrators) is extremely difficult in armed conflict, and even more so when the State responsible for offences is unlikely to cooperate with investigations. Reports of extra-judicial killings by Russian commanders of their subordinates alleged to have committed war crimes in Ukraine, and the consistent denials by Russia of reports of criminal conduct by their forces, suggest that there will be little to no cooperation by Russia in the pursuit of accountability. 

In addition to existing international criminal law mechanisms, the crowd-sourcing of investigations by States supporting the preparation of criminal prosecution briefs and, as a fall-back option, domestic prosecutions should remain available.  If the ICC fails to act, or the special tribunal never materialises, then Australia could take action.

Should Australia prosecute Putin using universal jurisdiction 

Given the ICC has only recently opened its prosecution against the Sudanese militia leader, Ali Muhammed Ali Abd-Al-Rahman in respect of war crimes and crimes against humanity allegedly committed in 2003 and 2004, the wheel to bring individuals to account under the international criminal mechanism turns slowly. The lead time to bring a prosecution for atrocity crimes is long, and there are additional jurisdictional challenges with prosecuting a sitting head of State. Jurisdictional challenges exist in prosecuting sitting Heads of State (as Putin is), who enjoy immunity ratione personae for all acts performed, while in office, which remains in effect before foreign States’ domestic courts – even for atrocity crimes – where the official’s State has not waived it. 

However, despite these challenges, Australia can, and should, show leadership. By at least legislating for the offence, should Putin ever visit Australia – or a State with which Australia holds a relevant extradition treaty – the ability exists to prosecute him under the doctrine of universal jurisdiction (as codified in Division 268 of the Criminal Code). This action sends a clear message that the act of aggression and its consequences cannot be forgotten for future political convenience; while not compromising potential action by any special international tribunal established to handle the situation.  

Criticisms or weariness of the use of universal jurisdiction align to its challenges, and to claims of judicial vigilantism mired in political, rather than altruistic aims.  While it is true that international criminal law is infected by issues related to political will and convenience, in this case, such action could be used complimentary to the sanctions and other diplomatic pressures undertaken by Australia already. The deterrent effect of such action is more powerful than mere words.

Concluding observations

While there are steps that can and should be taken by Australia in response to Russia’s unlawful invasion of Ukraine, reinforcing international criminal justice and accountability measures is critical to preventing impunity and discouraging further atrocity crimes being committed in this conflict, and in future conflicts. Australia can demonstrate its commitment to this cause by ratifying the Kampala Amendments, domestically legislating the crime of aggression and creating a prosecution brief in respect of Putin’s flagrant disregard for the international rules-based order.  

Yvonne Breitwieser-Faria is a PhD Candidate at the T.C. Beirne School of Law in affiliation with the Asia-Pacific Centre for the Responsibility to Protect, The University of Queensland. Her research focuses on atrocity law. 

Dr Lauren Sanders is a senior research fellow at the University of Queensland’s Law and the Future of War at the University of Queensland, whose doctoral thesis was on enforcement mechanisms relevant to universal jurisdiction.

Elizabethan Pirates and Privateers and Today’s International Law Paradigm 

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.