Melbourne Law School - Theses
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ItemBusiness persons and international criminal law: challenges of policy, principle and proof( 2017)This thesis addresses the challenges to the investigation and prosecution of business persons, including officials of corporations, before international criminal courts with a focus on the International Criminal Court. It examines this issue by considering the relationship between individual criminal liability for collective system crimes, substantive doctrine, modes of liability, the negative implications for the individual criminal responsibility of corporate officials caused by the lack of corporate criminal liability, prosecutorial policy regarding suspect selection and evidence collection and use. It is a novel study particularly with respect to the evidentiary challenges to the investigation and successful prosecution of private economic actors. Each of these factors operate so as to focus international criminal prosecutions on public and organisational actors involved in genocide, crimes against humanity and war crimes, rather than private economic actors. Each of these factors make the prosecution of individual business persons at international courts under international criminal law, difficult and unlikely, but not impossible.
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ItemIsraeli Settlements and the ICC: what does the application of the crimes of the Rome Statute to the continued existence and expansion of Israeli Settlements in the West Bank reveal about the operation of the Rome Statute?( 2017)The International Criminal Court, established by the Rome Statute, was created to provide a venue of last resort for the prosecution of the most serious international crimes. However, whether the Statute successfully established a coherent and legally effective system of international criminal justice is open to question. This thesis examines this issue by considering how the crimes of the Rome Statute might apply to the continued existence and expansion of Israeli settlements in the West Bank. The examination reveals some of the difficulties caused by incorporating the principles and obligations of international humanitarian law generally and the law of military occupation specifically into the crimes of the Rome Statute. This methodological approach allows for parts of the Statute to be ‘stress-tested’ to see how they meet, or fail to meet, the Statute’s broader aim of establishing a coherent and legally effective international criminal justice system where the law is knowable, predictable, and able to be applied. Two crimes have been identified as being particularly relevant to the settlements. First, the war crime of transfer of population in article 8(2)(b)(viii) and second, the war crime of unlawful appropriation of property in article 8(2)(a)(iv). The texts of these two war crimes in the Rome Statute are taken verbatim from relevant provisions of international humanitarian law (IHL) and the law of occupation more specifically. This thesis also addresses the threshold question of whether the law of occupation applies to the West Bank, and how the principles of individual criminal responsibility, and specifically common purpose liability, might operate in this context. The study of the operation of these crimes shows some of the consequences of taking clauses from IHL and inserting them wholesale into the Rome Statute, without any amendments to reflect the reality that individual criminal responsibility is different from state responsibility. This thesis demonstrates how the interface between IHL and international criminal law can be problematic. It shows how the adoption of vague and flexible principles from IHL into crimes for which individuals can be held liable has the potential to cause serious inconsistencies between IHL doctrine and the operation of international criminal law. In addition, in the event of an investigation or prosecution in relation to the settlements, the thesis provides a point of comparison to the legal approaches of the Prosecution and of the Court’s Chambers, allowing for an assessment of how each organ is carrying out their roles, and providing insight into how each organ may perform in any specific future case. While the thesis does not set out to determine the criminal responsibility of any particular individual, it does in some instances stake a claim about what is the most persuasive legal position to take on the scope and operation of the crimes. Deviation by the Prosecutor or the Judges from these positions could reveal a different attitude to the most persuasive legal position to take but may also suggest something about the priorities and operation of the relevant organs of the Court.
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ItemCorporate peacebuilding and the law: regulating the private sector for conflict transformation( 2017)Corporations have social responsibilities and legal obligations in conflict zones. Moreover, many large transnational corporations (TNCs) have the capabilities and capacities to positively contribute to the prevention and resolution of armed conflicts around the globe. However, the potential of “corporate peacebuilding” has yet to be fully realised in theory or in practice. This thesis argues that unlocking this potential requires legal and regulatory innovation. It examines the relationship between peace, corporations and the law, and suggests that the private sector has a largely untapped peacebuilding potential in large part, due to weak governance at the global and national levels. Focusing on the governance of Australian-based TNCs, the thesis argues to realise this potential requires legal and regulatory innovation. Building upon the theory of responsive regulation, a novel regulatory framework is developed for this purpose, embodied in the regulatory diamond heuristic. It encompasses three key components: minimum standards, compliance regulation and aspirational regulation. The thesis then applies this framework to the problem at hand, and in particular explores the law’s roles in each of the constituent elements of a regulatory diamond framework that may help realise the promise of corporate peacebuilding. The thesis argues that international criminal law norms of behaviour are the most legitimate source of minimum legal standards for TNC conduct in conflict-affected areas. It is argued that these norms are applicable to corporations as borne out by the jurisprudence of the Nuremberg-era and later international trials. It is crucial that effective pathways exist to legally enforce such standards. Despite a dearth of viable international enforcement options, it is argued that there exist several promising, but underexploited, domestic avenues for legal accountability when TNCs breach those standards. Finally, despite traditional conceptions of the law’s role being focused on norm-setting and norm-enforcement, it is suggested that well-designed laws may also facilitate and encourage TNCs to go above and beyond mere compliance with minimum standards, to become partners, alongside governments and civil society, in peacebuilding efforts around the globe.
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ItemFairness, the rights of the accused, and procedure in international criminal trials( 2015)This thesis examines the relationships between fairness, the rights of the accused, and procedure in contemporary international criminal trials. I argue that while fairness and rights are closely related in principle, by examining procedural decision-making in contemporary international criminal trials and the implications of these decisions, we observe a distancing between fairness and rights. This thesis ultimately calls for a renewed close association between fairness and the rights of the accused, particularly when making determinations on matters of procedure in international criminal trials. This thesis asks, ‘how are fairness and the rights of the accused connected in procedural decision-making in contemporary international criminal trials?’ I argue that fairness, rights, and procedure are three separate but interconnected aspects of international criminal trials. I explore these relationships through two case studies: the rules and practices of disclosure, and determinations on the use of adjudicated facts. I particularly examine practice at the ICC and the ICTY, and this thesis examines contemporary trials, as the cases analysed were in trial between the years 2008–14. This thesis engages with ongoing debates in the existing scholarship, particularly to address questions of the political and ideological underpinnings of international criminal law and procedure, and the flaws, limits, and potential of this legal system. I undertake a factual and normative analysis of fairness, rights, and procedure in international criminal trials. I examine how fairness and rights are located in this system of law; what fairness and rights are considered capable of achieving; and how fairness and rights connect the individual accused to the legal system. I also use the primary texts of the ICTY and ICC (the statutes, Rules of Procedure and Evidence, and Regulations), as well as selected procedural motions and decisions at both trial and appellate level in contemporary international criminal trials, held at the ICTY and ICC. I examine this law and related motions and decisions, to understand how fairness and rights are addressed in the international criminal procedural framework. I analyse both the relevant Chamber’s approach, and the effect of the decisions. In doing so, I have asked: ‘how has the Chamber addressed fairness concerns?’; ‘how has the Chamber accounted for the rights of the accused?’; and ‘what have been the implications of this decision for the rights of the accused?’ These documents permit an analysis of what procedural questions have arisen, and how they have been resolved, in relation to both fairness and rights. This ultimately facilitates an analysis of how fairness, rights, and procedure interact. This thesis ultimately calls for a renewed close alignment between fairness and rights in procedural decision-making in international criminal trials. I offer normative arguments for why fairness and rights should be closely linked, and reflections on the implications of this thesis for the future of international criminal trials.
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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.