Melbourne Law School - Theses
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ItemSexual exploitation and abuse by UN military contingents: moving beyond the current status quo and responsibility under international law( 2012)Sexual Exploitation and Abuse (SEA) continues to be a problem on UN peacekeeping operations, despite relatively expansive efforts that have been taken to tackle it at UN level. Such conduct is particularly grave given that these peacekeepers have been sent to protect the civilian populations of host states. Sexual crimes by UN troops breach the relationship of trust between these personnel and the host population. Such conduct undermines the credibility of UN missions and international peace and security. Moreover, SEA also may have insidious effects on victims, in particular children. There are several categories of UN peacekeeping personnel, each with a different legal status. This thesis is solely concerned with the largest component of UN operations, namely UN military contingent (UMC) personnel. These personnel are rarely held to account for even serious incidents of SEA, given that they are granted immunity from criminal prosecution in the host State by a plethora of legal instruments, in addition to the reluctance of some troop contributing countries (TCCs) to prosecute, which lends to a culture of impunity. The thesis aims to identify current legal, conceptual and practical impediments to tackling SEA by UMC personnel, through an appraisal of the responsibility framework as it currently stands and UN reforms and initiatives aimed at tackling it to date. In concluding that the current system for holding UMC personnel alleged to have perpetrated SEA to account remains inadequate, the thesis questions what might be the alternatives to current practice. SEA it is argued may give rise to the responsibility of individuals, TCCs and/or the UN. The thesis considers whether such conduct can be considered a violation of international humanitarian law, human rights law and/or international criminal law, and what this might mean in terms of state, UN and/or individual responsibility. It explores some of the difficulties with applying these legal regimes in the context of SEA by UMC personnel. The thesis considers whether international or internationalized courts might play a role in holding UMC personnel to account for serious incidents of SEA, or whether some other mechanism might be more effective. In doing it reflects on the possible value of internationalized prosecutions of UMC personnel perpetrating such offences. This thesis, however, takes the position that states or TCCs are as much a part of the problem in addressing SEA by UMC personnel as the individuals themselves. All too often they have proven reluctant to effectively investigate criminal offences perpetrated by their soldiers on UN operations, despite obligations to do so. Moreover, states remain a barrier to putting a more effective system in place and are likely to oppose any external interference with their exclusive criminal jurisdiction over their military personnel. Therefore, this thesis argues that there may be a need to look beyond individual criminal responsibility, to the possible responsibility of TCCs, and perhaps to a lesser extent the UN, for acts or omissions in relation to SEA by UMC personnel. It considers the possible scope of TCC and/or UN international obligations towards victims of SEA, in particular where there is a failure to take reasonable measures to prevent SEA by UMC personnel and to hold perpetrators to account. The possibility of TCCs been held responsible for the extraterritorial conduct of soldiers deployed on UN peacekeeping operations may put increased pressure on states to take their obligations to prevent and respond to SEA by UMC personnel more seriously, and possibly open some avenues for victims to claim some form of redress.
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ItemMaking international criminal law: factors influencing judicial behaviour at the ICTY and ICTR( 2008)The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) established by the UN Security Council in the early 1993 and 1994 respectively in the wake of mass atrocities commented in the Balkans and in Rwanda are arguably the first truly international criminal tribunals (ICTs). While the Nuremberg and Tokyo tribunals set up by the Allies to prosecute the Germans and Japanese responsible for atrocities committed during World War II provided some precedent, much of the ICTs’ substantive law had never been litigated. In addition, differences in the circumstances surrounding the two sets of prosecutions meant that the ICTs’ procedural system was effectively brand new. In this context, the role of the ICTs’ judges in progressively developing international criminal law and the international criminal justice system assumes great importance. Since the establishment of the ICTs, a permanent international criminal court and several ‘hybrid’ international courts have been created. Each of these has drawn heavily on the jurisprudence and procedural law, practices and norms of the ICTs. This further underscores the importance of understanding the development of international criminal law by ICT judges. Studies of factors influencing the behaviour of judges have generally focused either on micro-level factors, primarily the policy position of judges, or macro-level factors, primarily the relationship between States and international courts. This thesis argues that the exploration of factors influencing judicial behaviour on both levels is important. This thesis uses a broad institutional perspective to identify the types of factors likely to be salient influences on judicial behaviour and the way in which those factors operate, in particular the way in which the ICTs as organisations operate to mediate exogenous influences. The thesis uses a range of data sources, including interviews with judges and defence counsel to empirically explore two micro level and three macro level influences. The micro-level influences explored are judges’ national system and professional backgrounds. The macro-level influences explored are the reliance of the ICTs on States, the need for the ICTs to establish and maintain legitimacy and the broader expectations directed towards war crimes tribunals. The thesis findings show that exploring both the micro and macro-levels provide important insights into judicial behaviour at the ICTs. The findings on the influence of the micro-level factors explored in the thesis reveal that both national system background and professional background do influence some aspects of judicial behaviour. The findings also suggest the importance of understanding the process of institutionalisation when exploring judicial behaviour and the organisational factors that facilitate or impede this. The findings on the influence of the macro-level factors explored in the thesis suggest that each of these factors do influence judicial behaviour at the ICTs in certain ways, but that the level to which the factors influence behaviour is context-contingent.