Melbourne Law School - Theses
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ItemCovert operations and the development of international law on the use of force( 2017)This thesis examines how best to recalibrate our understanding of the development of the law on the use of force in the light of increased reporting and legal debate around covert and quasi-covert drone strikes and cyber attacks. It is argued that recent changes in practice and communication call for closer attention to be paid to the requirement of publicity for state practice, since they challenge the perception of the concepts ‘public’ and ‘covert’, and thus raise questions as to the impact that covert and quasi-covert acts do and should have on the development of the law on the use of force. At heart, the thesis is concerned with the need to find ways to address contemporary challenges posed to the law on the use of force without risking the law losing its normativity. Although it is widely accepted that acts need to be ‘public’ in order to constitute state practice relevant for the development of customary international law, the rationales for, and details of, the requirement of publicity remain underexplored by legal scholars. Focusing particularly on quasi-covert conduct such as the United States’ drone strikes on Pakistani territory, and covert operations such as the cyber attacks against Estonia in 2007 and Iran in 2010, this thesis unpacks the requirement of publicity in order to make clear what acts are capable of constituting state practice for the development of the law on the use of force. It is argued that, in order to qualify as such practice, acts must be both acknowledged and publicly known. The thesis further examines how state silence around covert and quasi-covert operations have opened up significant space for interventions by legal scholars and other experts to influence the interpretation of the law on the use of force in light of novel developments. While many covert operations, depending on their level of publicity and covertness, are unfit to constitute state practice for the development of customary international law, the debates surrounding them help shape the interpretation of the rules regulating the resort to force. It is argued that this possibility should be taken seriously by international legal scholars, who can not only push for increased transparency and adherence to legality by states, but also take an active part in filling the voids in the interpretation of jus ad bellum created by covert operations that are publicly known.
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ItemInternational law in Australian public debate: 2003, 1965, 1916( 2017)This thesis argues that the contemporary prominence of international law in public debate is not new. Drawing on law as language scholarship, and using analyses of the language of the debates over Australia’s participation in the 2003 Iraq War, the Vietnam War and the First World War, this thesis contends that international law has played a role in public debates about war across the 20th and now 21st centuries. The claims of legality that continue to be made in Australian debates about war are one of a number of forms of international legal language that speakers have used. This interest in ‘legality’ is therefore part of a longer practice of speaking international legal language in public debates about war.
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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.