Melbourne Law School - Theses

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    Israeli 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?
    McKenzie, Simon ( 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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    Corporate peacebuilding and the law: regulating the private sector for conflict transformation
    Kolieb, Jonathan Asher ( 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.