Department of Defence Annual Report 2018...The Military Node welcomed a new Business Manager in July...

-Asia Pacific Centre for Military LawMelbourne Law School

Defence Legal Department of Defence

Annual Report 2018

2 | APCML Annual Report 2018

Front cover:Melbourne Law School

Published byAsia Pacific Centre for Military LawMelbourne Law SchoolThe University of Melbourne VIC 3010 AustraliaTel: +61 3 8344 4775Fax: +61 3 8344 0054

Email: [email protected]: www.apcml.org

EditorHamish Carr, AdministratorEsther Taylor, Administrator

Website AdministratorZoe Hough

Authorised byBruce Oswald, Director

http://apcml.org/ | 3

Contents

Director’s Report

Overview

Management Structure & Members

Members’ Profiles

Publications

Research Programs

Visitors

Roundtables, Workshops & Seminars

Melbourne@Defence

Courses & Workshops

5

7

9

10

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25

26

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It gives me great pleasure to introduce this APCML Annual Report for 2018. The APCML has had another outstanding year of contributing to the better understanding of the role of law in planning and conducting military operations. Our Military Node has been short staffed most of the year and consequently the Node’s staff have had to work overtime to ensure the Centre’s success. With this staffing issue it is all the more impressive to know that the Military Node delivered eight APCML courses to a total of 468 students from 39 nations (I think those are record numbers!) in our Sydney facility at Victoria Barracks. To the number of 468 trained in Australia we can add a further 281 Staff College students that were trained in the Philippines. Our students came from: Egypt, Brunei, Pakistan, New Zealand, India, China, Sri Lanka, Bangladesh, Cambodia, Indonesia, Philippines, Myanmar, Malaysia, Vanuatu, Kiribati, Fiji, PNG, Tonga, Timor Leste, Djibouti, Nigeria, Tanzania, Oman, Singapore, Japan, Thailand, Jordan, Korea, Lebanon, Tuvalu, Solomon Islands, FSM, Vietnam, Ukraine, Saudi Arabia, UAE, US, Qatar, Samoa.

The Military Node’s work would not have been achieved without the assistance of the ADF Legal Officers who managed and coordinated our courses this year. I single out particularly Squadron Leader Anthony Erman (Command and Staff Operations Law Course – Philippines, and Cyber

Law and Emerging Technologies Workshop); Major Sharon Ackman (Rules of Engagement Workshop); Lieutenant Commander Kent Browning (Maritime Operations Law Course and Maritime Security Cooperation Workshop); and Group Captain Enrico ‘Ric’ Casagrande (Law of Peace Operations, and Command Staff Operations Law Course – Sydney). My thanks to each of you for your dedication, professionalism, and for bringing your subject matter expertise to the Centre’s international military officer students in a way that is engaging and interesting. You have made military law accessible to a diverse, usually non-legal, audience. The Military Node welcomed a new Business Manager in July 2018, Miss Navika Sewsunker, who has provided invaluable administrative management of the course finances and logistics.

Furthermore, the success of our courses depended on the support provided to us by International Policy Division (IP Div), Department of Defence; and the International Committee of the Red Cross (ICRC). My thanks to the staff of IP Div and ICRC for all their encouragement and support.

The University Node staff who presented on the APCML courses, my thanks to each of you as well. I know each of you sacrificed valuable time to contribute to the courses and the life of the APCML University Node. I remain grateful to each of you for your willingness to support the Centre’s vision.

The University has had four visitors this year – two from Australia, one from Germany and the other from Croatia. Each has contributed to the life of the Centre through their research and engagement. My thanks also go to those at the University Node who assisted in setting up, hosting, and chairing the roundtables, workshops and seminars at the Law School. The Melbourne@Defence seminars, which were held at Defence Legal Canberra, and which the University Node organised were also very successful.

We were sad to farewell Mark Cunliffe PSM, Head Defence Legal and a member of our Centre’s steering committee. His vision of what the Centre could, and should, achieve has been central to the Centre’s success. His commitment to allocating resources to the Centre’s activities has ensured that the Centre has been able to undertake teaching, research and engagement at the highest levels. On a more personal note, I will always be grateful to Mark for his encouragement, support and willingness to assist me as Director. The Centre and I wish him the very best for his retirement and we look forward to seeing him at some of our events.

On 6 November 2018, Mr Adrian D’Amico was appointed Head Defence Legal. He completed a BEC/LLB (Hons) in 1988 at the Australian National University before joining private practice. Adrian spent 23 years in private practice, where he was a partner in two of Australia’s major private firms. Adrian joined the Department of Defence in August 2012. From 2000 to 2007, Adrian was a Canberra Partner of Phillips Fox, which later became DLA Piper, and from 2007 to 2012 he was a Senior Partner with Deacons. When Deacons merged with the private international law firm Norton Rose, Adrian became head of the Canberra Office. Adrian joined the Australian Public Service in the Department of Defence in 2012 when he was appointed Assistant Secretary Defence General Counsel. We look forward to working with Adrian.

Director’s Report


Tim McCormack, the founding Director of the APCML and one of our principal academic members, left Melbourne Law School to become Dean of the Faculty of Law, University of Tasmania. The Centre’s success today can be traced to Tim’s contributions to the Centre’s teaching, research and engagement. His vision was instrumental in establishing the Centre’s aims and programs. We wish Tim the very best in his new appointment.

Rain Liivojja, a stalwart of the Centre, left Melbourne Law School to take up an appointment as an Associate Professor at the TC Beirne School of Law, The University of Queensland. Rain not only contributed to teaching, research and engagement at the Centre, but he also provided me with wise counsel and a great deal of assistance over my years as Director. His contributions to supporting the Cyber Law and Emerging Technology Workshop and the Command and Staff Operations Law Course in the Philippines were also greatly appreciated. He still works with us as an Honorary Senior Fellow and we are grateful to him for accepting this appointment.

We also farewelled Squadron Leader Anthony Erman last year. Anthony has taken up his posting with the United States Airforce at the Pentagon. He will be sorely missed at the Centre. We wish him all the very best in his new posting.

We are looking forward to 2019. Other than our suite of APCML courses, the University Node will host the ‘Respecting Military Law’ conference and workshop. Sir Adam Roberts from the University of Oxford will be the key note speaker for the conference, as the 2018 Sir Ninian Stephens Scholar at the Law School. He will be followed by the 2019 Sir Ninian Stephens Scholar, Sir Christopher Greenwood.

Finally, I would like to acknowledge the Traditional Custodians of the land and pay my respects to their Elders past, present and emerging. I recognise that the Military Node sits on the land of the Gadigal Peoples of the Eora Nation, and the University Node is on Wurundjeri land of the Kulin Nations. I would also like to pay my respects to the Aboriginal and Torres Strait Islander men and women who have contributed to the defence of Australia in times of peace and war, and who continue to make an important contribution to Defence’s capability.

Professor Bruce Oswald CSC APCML Director 2018


Overview

The APCML was established in 2001 as a collaborative initiative of Melbourne Law School, University of Melbourne and Defence Legal, Department of Defence. It operates from a University and a Military Node, in the cities of Melbourne and Sydney respectively.

AimsThe APCML aims to provide a locus for critical engagement with the international and national law of war and armed conflict, to facilitate cooperation amongst military forces of the Asia Pacific Region and beyond in the research, training and implementation of the laws governing military operations, and to promote greater understanding of and increased respect for the Rule of Law in all aspects of military affairs both within the Australian Defence Force and amongst militaries. To this end we:

• Organise conferences, workshops, seminars and other activities

• Prepare and deliver training programs• Promote academic research and publications in relevant fields, including international humanitarian law, the law of peace

operations, international criminal law, and arms control and disarmament• Undertake and support initiatives to promote and improve the flow of information to legal officers• Develop relevant relationships within the Asia Pacific Region, and• Develop contacts and mutual exchanges with other academic/military centres and with leading subject matter experts.

While our title refers to the ‘Asia Pacific’ the reality is that our work is not limited to this region. We do however focus on the Asia Pacific region for context.

PartnersMelbourne Law School is one of Australia’s oldest law schools, teaching law continuously as a Faculty of the University of Melbourne since 1857. The Law School has maintained its reputation as one of Australia’s leading law schools with an innovative approach to teaching and research.

Defence Legal is responsible for the provision of legal advice and other legal services to the Australian Defence Force, the Australian Department of Defence, and the Minister for Defence. Its head office is in Canberra.

Locations and FunctionsThe University Node is located within the Melbourne University Law School and supports academic staff, visiting fellows and

APCML, Military Node, Victoria Barracks, Sydney


Overview

APCML, Melbourne Law School, Melbourne

Research Higher Degree students by organising activities such as conferences, workshops, lectures and seminars relating to international, humanitarian and military law. In addition to teaching, and supervision of postgraduate students, staff of the Centre publicly engage with the wider community by speaking at public forums, and writing opinion pieces for newspapers and journals.

The Military Node at Victoria Barracks in Sydney comprises military and civilian staff of the Australian Defence Force’s (ADF) Legal Services. It provides the linkage between the military forces of the Asia Pacific region and the academic and humanitarian communities. The Military Node has the responsibility for the coordination, formulation and delivery of the APCML’s core suite of courses. APCML military staff regularly lecture to military and non-government organisations that may be involved in contemporary military operations.

Former PatronRt Hon Sir Ninian Stephen KG AK GCMG GCVO KBE, former Justice of the High Court of Australia, Governor-General of Australia and Appeal Judge for the International Criminal Tribunals for the former Yugoslavia and Rwanda.

Sir Ninian passed away in November 2017. We greatly appreciate his support guidance and intellect in the Centre’s work.

Steering CommitteeThe control of policy, practices and overall management and operation of the Centre is vested in the Steering Committee.

Management TeamThe direction, control, supervision, overall management and performance of the Centre and the planning and implementation of Centre activities are the responsibility of the Director and Deputy Director, assisted by two Associate Directors, one for each node of the Centre. The Director, a Melbourne University Law School employee of an academic rank not lower than Associate Professor or his or her delegate. The Deputy Director, an Australian Defence Force Legal Officer of a military rank not lower than Colonel (or equivalent rank) or his or her delegate.

Centre AdministratorThe Administrator of the Centre is based at the University node and is responsible for establishing and maintaining a professional, efficient and well-managed environment for the functioning of the Centre.


Management Structure & Members

Members of the Steering CommitteeDean, Melbourne University Law School Professor Pip Nicholson

Head, Defence LegalMr Mark Cunliffe PSM (until November 2018)

Mr Adrian D’Amico (from November 2018)

Director General, Australian Defence Force Legal ServiceCommodore Peter Bowers RAN

Dean’s nomineeThe Hon Alastair Nicholson AO RFQ QC

Members of the Management CommitteeDirectorProfessor Bruce Oswald CSC

Deputy Director Colonel S.C.A Lambert CSC, LL.B.

Associate Director University NodeProfessor Alison Duxbury

Associate Director Military NodeMs Grace Corbiau

Centre AdministratorMr Hamish Carr, University Node

Ms Esther Taylor, University Node

Faculty MembersProfessor Bruce Oswald

Professor Alison Duxbury

Professor Hilary Charlesworth

Dr Inbar Levy

Dr Rain Liivoja

Professor Tim McCormack

Dr Carrie McDougall

Professor Dianne Otto

Professor John Tobin

Professor Tania Voon

Senior FellowDr Helen Durham

Principal FellowsDr Mike Kelly AM

Associate Professor Robert Mathews OAM

Professorial FellowsThe Hon Alastair Nicholson AO QC RFD

Major General Ian Westwood AM

Post-Doctoral FellowDr Rosemary Grey

Research FellowDr Rosemary Grey

Graduate Research Degree StudentsMs Florence Adong

Ms Treasa Dunworth

Assistant Professor Chris Jenks

Ms Magda Karagiannakis

Ms Natalia Jevglevskaja

Ms Kobi Leins

Mr Simon McKenzie

Military Node MembersLegal Training Officers SQNLDR Anthony Erman

LCDR Kent Browning

MAJ Sharon Ackman

GPCAPT Enrico ‘Ric’ Casagrande

Administrative Staff Miss Navika Sewsunker, Business Manager

Wilma Falcke, Paralegal


Director

Professor Bruce Oswald CSCProfessor Bruce ‘Ossie’ Oswald’s interests in law and practice are in the areas of international humanitarian law, peace operations, state building, accountability and responsibility, and the application of human rights law to military operations. More specifically, his interests are in examining the law and practice surrounding the protection of civilians, the taking and handling of detainees during military operations, and militias undertaking law and order functions.

Ossie has served in the Australian Regular Army as a legal officer. He has seen operations service in Rwanda, the Former Yugoslavia, East Timor, Iraq and Afghanistan. He has provided legal advice and held staff appointments as a legal officer at tactical, operational and strategic levels. Ossie continues to serve in the Army Reserves as a legal officer.

For his service as the Legal Officer for the Australian Contingent serving in Rwanda, Ossie was awarded the Conspicuous Service Cross (CSC).

In 1997 Ossie worked with the International Committee of the Red Cross in the Former Yugoslavia.

Ossie was a Jennings Randolph Senior Fellow (October 2012–June 2013) at the United States Institute of Peace in Washington DC, USA.

Deputy Director

COLONEL S.C.A. LAMBERT, CSC, LL.B. (ARUN)COL Lambert joined the Australian Army in 1991. Since that time he has served on operations in East Timor, Iraq and Afghanistan and was the adviser to commander Deployable Joint Force Headquarters during OP PLUMBOB in Fiji.

COL Lambert also served on exchange with the British Army. During that time he deployed on numerous NATO and Permanent Joint Force Headquarters exercises across Europe. He also presented components of the outreach program to the partnership for peace nations in Bulgaria.

He has served as the Director of Army Legal Services and with Special Operations Command and was awarded the Conspicuous Service Cross.

COL Lambert is currently posted as the Director of the Military Law Centre in Sydney, responsible for the training of over 500 ADF legal officers in operations law and military justice and is also the Deputy Director of the Asia Pacific Centre for Military Law overseeing the training of over 500 international students each year in international humanitarian law and human rights law.

Members’ Profiles


Members’ Profiles

Associate Director University Node

Professor Alison DuxburyAlison Duxbury is a Professor at Melbourne Law School and a member of the Council of the Australian and New Zealand Society of International Law and the Executive Council of the Asian Society of International Law. She is also a member of the International Advisory Commission of the Commonwealth Human Rights Initiative and the Board of Directors of the International Society for Military Law and the Laws of War. Alison’s major teaching and research interests are in the fields of international institutional law, human rights law and international humanitarian law. Her publications include The Participation of States in International Organisations: The Role of Human Rights and Democracy (Cambridge, 2011), a co-edited book, Military Justice in the Modern Age (Cambridge, 2016) and a forthcoming co-authored book, Can ASEAN Take Human Rights Seriously?, to be published as part of the ASEAN Integration through Law Project.

Alison has undertaken advice work in the areas of international law and human rights law. She has been a Visiting Fellow at the Lauterpacht Centre for International Law in Cambridge, the Centre for Comparative and Public Law at the University of Hong Kong, the Oxford Institute for Ethics, Law and Armed Conflict and the Institute of Commonwealth Studies in London. She has also taught international humanitarian law and international institutions at the Centre for Transnational Legal Studies in London.

Associate Director Military Node

Grace CorbiauGrace Corbiau took on the role of Deputy Director, Military Law Centre, and Associate Director, Asia Pacific Centre for Military Law at the Department of Defence, in July 2017.

Grace holds an Honours degree in International Relations from the Australian National University, a Masters of Public International Law focused on human rights law from the University of Kent. She is currently studying law.

Grace spent 8 years working in Brussels, primarily for the British Foreign and Commonwealth Office, at the United Kingdom’s Representation to the European Union. Her portfolio covered justice, security, human rights, and immigration policy. Upon her return to Australia, Grace was a Senior Manager in the NSW Department of Justice dealing with statutory compensation claims for victims of crime. She has served as a Director on the Boards of the International French School of Sydney, and the Australian Breastfeeding Association.


Professor Hilary CharlesworthHilary Charlesworth is a Melbourne Laureate Professor at Melbourne Law School. She is also a Distinguished Professor at the Australian National University. Her research includes the structure of the international legal system, art and international law, peacebuilding, human rights law and international humanitarian law and international legal theory, particularly feminist approaches to international law. Hilary has held both an Australian Research Council Federation Fellowship (2005–2010) and an ARC Laureate Fellowship (2010–2015).

Hilary is a member of various editorial boards, including the International Review of the Red Cross. She was appointed by the Australian government as a member of the Permanent Court of Arbitration. She is an associate member of the Institut de Droit International and served as judge ad hoc in the International Court of Justice in the Whaling in the Antarctic Case (2011–2014).

Members’ Profiles

Dr Rain LiivojaRain Liivoja is a Senior Lecturer and Society in Science – Branco Weiss Fellow at Melbourne Law School. He is also an Affiliated Research Fellow of the Erik Castrén Institute of International Law and Human Rights, University of Helsinki, where he was based before joining the University of Melbourne. Rain’s current research focuses on the regulation of emerging military technologies, in particular biotechnology.

Rain is a member of the board of directors of the International Society for Military Law and the Law of War, member of the council of the Australian and New Zealand Society of International Law, and chair of the Australian Red Cross (Victorian Division) International Humanitarian Law Committee. He is a Fellow of the Royal Society of Arts.

Rain holds an undergraduate degree in law from the University of Tartu and postgraduate degrees in public international law from the University of Helsinki. He has completed a Graduate Certificate in University Teaching at the University of Melbourne.


Dr Inbar LevyDr Inbar Levy completed her DPhil in Law at University College, Oxford, where she was awarded the Modern Law Review Doctoral Scholarship and the Oxford Faculty of Law Scholarship. Her doctoral project, titled ‘Behavioural Analysis of Civil Procedure Rules’, written under the supervision of Professor Adrian Zuckerman, investigated the implications of findings derived from empirical behavioural psychology for legal reasoning and practice.

Inbar had been awarded a Joint Law and Psychology LLB with Magna Cum Laude honours and subsequently an LLM with similar honours from the Hebrew University of Jerusalem. Before going to Oxford, she served as a legal advising officer in the Military Advocate General unit of the Israeli Defense Forces. Inbar has previously held a Visiting Research Fellow position at Columbia Law School in the City of New York and a Visiting Researcher position at Harvard Law School.

Inbar joined Melbourne Law School as a Lecturer in 2015, after a short period as a postdoctoral fellow at the Centre for the Study of Rationality and the Sacher Institute in Jerusalem. Her primary research areas are procedural justice and empirical legal research, with a particular interest in behaviour and decision-making, access to justice and institutional design.

Members’ Profiles

Professor Tim McCormackTim McCormack is a Professor of Law at Melbourne Law School and the Special Adviser on International Humanitarian Law to the prosecutor of the International Criminal Court in The Hague. He is also an Adjunct Professor of Law at the University of Tasmania Law School and a Director of World Vision Australia.

In 2016 he returned from the US where he was a Fulbright Senior Scholar, the Charles H Stockton Distinguished Scholar-in-Residence at the US Naval War College in Newport, Rhode Island and the James Barr Ames Visiting Professor at Harvard Law School. He was the Foundation Australian Red Cross Professor of International Humanitarian Law (1996–2010) at Melbourne Law School and the Foundation Director of the Asia Pacific Centre for Military Law (2001–2010).

From 2002 – 2006 he acted as amicus curiae on international law matters to the judges of Trial Chamber III of the International Criminal Tribunal for the Former Yugoslavia in The Hague for the trial of Slobodan Miloševic. From 2003 – 2007 he provided expert International Humanitarian Law advice to Major Mori for the defence of David Hicks. From July 2011 – March 2013 he served as one of two international observers for Phase 2 of the Turkel Commission of Enquiry into Israel’s processes for investigation of alleged violations of International Humanitarian Law and from 2015-2017 he was a member of the International Group of Experts to Draft the 2nd Tallinn Manual on the International Law Applicable to Cyber Operations.

He developed Australia’s first graduate coursework specialization in International Humanitarian Law and a specialist coursework graduate program in Military Law at Melbourne Law School and has regularly lectured to graduate recruits in the Department of Foreign Affairs and Trade (DFAT) and to ADF officers as well as to legal officers, operators and planning staff from militaries in the Asia Pacific Region.

He is co-editor-in-chief (with Sir Christopher Greenwood) of the world’s first academic book series dedicated to International Humanitarian Law Series (with Martinus Nijhoff Publishers in Leiden). He recently co-edited the forty-eighth volume of the series: Australia’s War Crimes Trials 1945–51 which was shortlisted for the 2017 NSW Premier’s Australian History Prize.


Members’ Profiles

Professor Dianne OttoDianne Otto is Professorial Fellow at Melbourne Law School where she held the Francine V. McNiff Chair in Human Rights Law from 2013-2016. Her research examines gender, sexuality and race inequalities in the context of international human rights law, the UN Security Council’s peacekeeping work, the technologies of global ‘crisis governance’, threats to economic, social and cultural rights, and the transformative potential of people’s tribunals and other NGO initiatives. Recent publications include the ground-breaking collection, which she edited, Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2017), an article on people’s tribunals in the London Review of International Law (2017) and ‘Feminist Approaches to International Law’ in Anne Orford and Florian Hoffman (eds), Oxford Handbook of International Legal Theory (2016).

Dr Carrie McDougallDr Carrie McDougall re-joined Melbourne Law School in 2018, after nearly a decade working for the Australian Department of Foreign Affairs and Trade (DFAT).

While at DFAT she served first as a Legal Specialist and Assistant Director of the International Law Section. In this role she provided advice on the jus ad bellum, international criminal law, international humanitarian law, the responsibility to protect and the protection of civilians. This included advice on Australian operations in Syria, Iraq and Afghanistan, and on the full suite of legal issues considered during Australia’s term on the United Nations Security Council. Carrie regularly represented Australia in international meetings, including the International Criminal Court’s Assembly of States Parties, and played a critical role in international negotiations, including those relating to the downing of Flight MH17.

Immediately before re-joining the Law School, she served as the Legal Adviser at Australia’s Mission to the United Nations in New York. Among other things, she represented Australia in the UN General Assembly’s Sixth Committee, where she served as Vice President, and led Australia’s engagement on the Responsibility to Protect. She also played a significant role in negotiations on the establishment of the International, Impartial and Independent Mechanism for Syria.

Prior to joining DFAT, Carrie was a Research Fellow at Melbourne Law School, working with the Asia Pacific Centre for Military Law and the Australian Civil Military Centre to draft Guidelines on the Protection of Civilians by Peace Support Missions for the African Union. Before that, Carrie held positions as a Law School Sessional Lecturer and Solicitor.

Carrie holds a PhD in international criminal law from Melbourne Law School. She graduated as University Medallist with First Class Honours in Law and Arts from the University of Tasmania. She is admitted as a barrister and solicitor of the Supreme Court of Victoria and the High Court of Australia. She is currently serving as Chair of the International Humanitarian Law Advisory Committee of the Victorian Division of the Australian Red Cross, and as a member of the Council of Advisers of the Global Institute for the Prevention of Aggression.

Carrie is the author of The Crime of Aggression under the Rome Statute of the International Criminal Court (Cambridge University Press, 2012). The jus ad bellum, international criminal law and international humanitarian law are her primary areas of research.


Members’ Profiles

Professor Tania VoonTania Voon is a former Legal Officer of the Appellate Body Secretariat of the World Trade Organization (WTO) and a graduate of Cambridge University (PhD in Law), Harvard Law School (LLM), and the University of Melbourne (LLB, BSc, Grad Dip Intl L). She has previously practised law with Mallesons Stephen Jaques and the Australian Government Solicitor, and she has taught law in Australia, Singapore, Canada and the United States.

Tania has published widely in the areas of public international law, international trade law, and international investment law. She is the author of Cultural Products and the World Trade Organization (Cambridge University Press, 2007), editor of Trade Liberalisation and International Co-operation: A Legal Analysis of the Trans-Pacific Partnership Agreement (Edward Elgar, UK, 2013), editor of the Oxford University Press series on International Economic Law, and a member of the Indicative List of Governmental and Non-Governmental Panelists for resolving WTO disputes.

In addition to her core focus on international economic law, Tania has previously conducted research in the areas of humanitarian intervention, the laws of war, and the constitutional validity of military service tribunals, and she has supervised PhD candidates in fields including international humanitarian law, self-determination, and disarmament.

Professor John TobinJohn Tobin is a Professor in the Melbourne Law School at the University of Melbourne. He has a combined commerce/law degree with honours and a PhD from the University of Melbourne. He also has an LLM with distinction from the University of London. He has designed and taught several subjects in areas of international law, human rights, children’s rights and public interest lawyering. He coordinates the MLS Human Rights Alumni Network. In 2010 he was awarded the Barbara Falk Award for Teaching Excellence by the University of Melbourne and in 2011 he was awarded a national citation for outstanding contribution to student learning in the area of human rights. In 2006 he was a Visiting Professor at both the American Academy of Human Rights and Humanitarian Law, Washington College of Law, American University and in the Law School at New York University. In 2011 he was the Senior Scholar in Residence at the Center for Human Rights and Global Justice at NYU Law School.

John is currently working on an ARC Discovery Grant with Professor Philip Alston from NYU titled ‘Children’s Rights: From Theory to Practice’ which will produce a comprehensive commentary on the Convention on the Rights of the Child. He has also published numerous reports and articles on human rights, especially children’s rights. His book, The Right to Health in International Law, was published by Oxford University Press in January 2012. John has provided human rights training and advice as a consultant and on a pro bono basis on numerous occasions to organisations such as UNICEF, Law Reform Commissions, the Law Institute of Victoria, Judicial College of Victoria, the Victorian Equal Opportunity Commission, NGOs, statutory bodies, Government Departments and community groups. He is an Advisory Board member to the Melbourne Journal of International Law and International Journal of Children’s Rights. He is also a member of several Advisory Committees and working groups for government bodies and NGOs. Prior to becoming an academic John worked as a commercial lawyer, legal aid lawyer with Victoria Legal Aid, and was a legal officer with the Department of Justice.


Members’ Profiles

SENIOR FELLOW

Dr Helen DurhamDr Helen Durham is Director for International Law and Policy at the International Committee of the Red Cross (ICRC) headquarters in Geneva. She has held this position since 2014 and is responsible for the activities of the ICRC globally in the area of international law (with a focus on IHL), policy development, and engagement with armed forces, Non-State armed groups, academic outreach and research. With over 140 lawyers, a number located in conflict zones, as well as former military officers and humanitarian diplomats, Helen regularly represents the ICRC at international legal negotiations on IHL.

Previously Helen worked for Australian Red Cross as Director of IHL, Strategy, Planning and Research and has also been Head of Office for ICRC in Australia and Legal

Adviser for the ICRC Regional Delegation in the Pacific. She has been involved in ICRC operational work in the field (in Burma, Aceh, the Philippines and the Pacific) and has been part of negotiations for international treaties in New York, Geneva and Rome.

Admitted as a Barrister and Solicitor of the Supreme Court of Victoria, she has a law degree with honours (Melb Uni) and an SJD (Melb Uni with research at NYU). From 2006–2008 Helen was Director of Research at the Asian Pacific Centre of Military Law, Melbourne Law School, and continued to teach in the Master of Laws program at Melbourne Law School until she left Australia. In 2014 she was inducted into the Victorian Honour Roll of Women, in 2015 Helen was awarded as an Australian Centenary Peacewoman and in 2017 became an Officer in the Order of Australia.

PRINCIPAL FELLOW

Associate Professor Robert Mathews OAMRobert (Bob) Mathews is an honorary Associate Professor at the University of Melbourne Law School, and until recently was Head of the Nuclear Biological and Chemical (NBC) Arms Control Unit in the Australian Defence Science and Technology (DST) Group.

Bob has been collaborating with the University of Melbourne Law School since 1991, which has included the study of various scientific / legal aspects of arms control agreements, and providing lectures and seminars. His research interests include the consideration of the challenges to the Law of Armed Conflict (International Humanitarian Law) and disarmament and arms control law posed by advances in science and technology and the resulting emerging military technologies.

Bob has been actively engaged in the Asia-Pacific region since the late 1980s. He has organised several regional workshops, including within the Melbourne Law School, and has also made many visits to regional countries for arms control and disarmament consultations, including providing guidance in their national implementation of disarmament treaties and other security agreements.

Since the early 1990s, Bob has been a member of various committees, including the Australian Red Cross International Humanitarian Law Committee, the International Verification Consultants Network of the Verification Research, Training and Information Centre (VERTIC), the Organisation for the Prohibition of Chemical Weapons (OPCW) Scientific Advisory Board and related Temporary Working Groups, and the Advisory Board of the National Centre for Biosecurity at the Australian National University.

Bob was awarded the Department of Foreign Affairs and Trade Secretary’s Award in 1993 and an Order of Australia Medal in 1994 for his contribution to chemical disarmament. He was elected Fellow of the Royal Australian Chemical Institute in 1995, and in 2003 was awarded a Doctor of Science degree for his contribution to chemical defence and disarmament. In 2013, he was appointed a Fellow of the International Union of Pure and Applied Chemistry (IUPAC), and in 2014 was named as the first Recipient of the ‘OPCW-The Hague’ award, based on his contribution to achieving a world free of chemical weapons.


Members’ Profiles

PRINCIPAL FELLOW

Dr Mike Kelly AMMike is the Member for Eden-Monaro and the Shadow Assistant Minister for Defence Industry, and a former Minister for Defence Materiel.

Mike currently sits on the Shadow National Security Committee, he is a member of the bi-partisan Parliamentary Joint Committee on Intelligence and Security, and he is the Co-Convener of the bi-partisan Parliamentary Friends of Suicide Prevention group.

Mike began his career fighting for the rights of injured workers and campaigning for those suffering from asbestos related diseases in Sydney. In 1987 he joined the Army and has extensive military experience including serving in a number of international operational deployments including Bonsia Herzegovina and Croatia, Somalia, East Timor and Iraq. In Government he also worked on Afghanistan transition.

Mike is a leading expert on peace and stabilisation operations, post conflict reconstruction and counter-insurgency. He has a PhD in related fields, published two books, numerous articles, and has been a regular speaker at military training programs and conferences around the world.

With over 170 years of family tradition in this region, Eden-Monaro is in Mike’s blood. He is passionate about renewable energy, the need to act on Climate Change and a strong advocate for veterans and the interests of rural and regional Australia within the Labor Party and Parliament.

Mike lives in Queanbeyan with his wife Shelly.

PROFESSORIAL FELLOW

The Hon Alastair Nicholson AO QC RFDThe Honourable Alastair Nicholson graduated Melbourne University Law School in 1960 and was admitted as a Barrister and Solicitor of the Supreme Court of Victoria in 1961 and signed the Roll of Counsel of the Victorian Bar in 1963. He was appointed Queens Counsel in 1979, a Justice of the Supreme Court of Victoria from 1982–88, and Chief Justice of the Family Court of Australia and a Justice of the Federal Court of Australia from 1988 until his retirement in 2004. He was Judge Advocate General of the Defence Force from 1987–91 and held the rank of Air Vice Marshal in the RAAF and is an Officer of the Order of Australia.

Alastair has long been a children’s rights campaigner. He has chaired several international conferences on child protection and child justice systems, and served as a consultant to the Royal Children’s Hospital International Vietnam, and to UNICEF Vietnam. He has also been a consultant to the Queensland Government on legal recognition of Torres Strait Islander traditional child rearing practices. He was the recipient of the Human Rights Award at the Fifth World Congress on Family Law and Children’s Rights held in Canada in 2009.

He has been an Honorary Professorial Fellow of the University of Melbourne since 2003 and is currently Chair of Children’s Rights International.


Members’ Profiles

PROFESSORIAL FELLOW Major General Ian Westwood AMIan Westwood read Law at the Universities of Brisbane and Sydney, graduating in 1977. He was admitted to practise as a solicitor of the Supreme Court of NSW in June 1978, following completion of two years articles of clerkship. Major General Westwood was appointed to the Australian Army Legal Corps (Regular Army) in August 1983 as a Direct Entry Officer, leaving private practice in Sydney, where he was an associate with Messrs Smithers Warren Davenport Mant. He had previously served in the Citizens Military Forces, firstly with Queensland University Regiment in 1972 and 1973, and subsequently in the Australian Army Legal Corps from 1981.

Major General Westwood has been Legal officer at Headquarters 1st Brigade, Chief Legal Officer 3rd Military District, Legal Officer to the Headquarters Logistic Command Commercial Support Project, as well as holding various staff appointments in the Directorate of Army Legal Services. As Chief Legal Officer 3rd Military District, he managed Army’s legal resources within Victoria and the Albury/Wodonga military area.

Since 1992, Major General Westwood has sat as a Judge Advocate and as a Defence Force Magistrate. In 1993 he obtained an LL.M from the US Army Judge Advocate General’s School.

In 1999–2000 he served with INTERFET in East Timor, establishing and commanding the Detainee Management Unit (DMU). Pending the establishment of a court structure under the authority of the UN, the DMU provided an interim review of the detention of civilians suspected of committing serious offences.

He was promoted to Major General in October 2012.

On 1 Oct 07, Major General Westwood was appointed as the first Chief Military Judge of the former Australian Military Court. When the legislation purporting to establish that Court was struck down in 2009 as being outside the Constitution, he was re-appointed as Chief Judge Advocate in conjunction with the interim legislative arrangements re-establishing the system of courts martial and Defence Force magistrates.

Major General Westwood was appointed a Member of the Order of Australia in the 2007 Australia Day Honours for exceptional service in the field of military law, particularly as Chief Judge Advocate.

RESEARCH FELLOW

Dr Narrelle MorrisNarrelle Morris was appointed as an APCML Research Fellow in January 2009 to work on the ARC Linkage Grant for ‘Australia’s Post World War Crimes Trials: a Systematic and Comprehensive Law Reports Series’, headed by Professor Tim McCormack. She is currently an honorary Research Fellow in Melbourne Law School and a Senior Lecturer in the Curtin Law School, Western Australia. In 2013 she was awarded an ARC DECRA grant for 2014–17 to conduct research on the Australian jurist Sir William Flood Webb.

She holds an LLB, a BAsian St and a BA (Hons) from Murdoch University. She completed her PhD in Japanese Studies at Murdoch University in 2007. She is the author of Japan-bashing: Anti-Japanism since the 1980s, London: Routledge, 2010 and a co-editor and contributing author to Australia’s War Crimes Trials 1945–51, Leiden: Brill Nijhoff, 2016. Her next journal article is ‘Gross inefficiency and criminal negligence’: the Services Reconnaissance Department in Timor in 1943–45 and the Darwin war crimes trials in 1946’, Intelligence and National Security, forthcoming.


Members’ Profiles

POST-DOCTORAL FELLOW

Dr Rosemary GreyDr Rosemary Grey is a Postdoctoral Fellow at Melbourne Law School. Her research focuses on gender issues in international criminal law, particularly the evolving law and practice regarding the prosecution of sexual and gender-based crimes.

Together with Jonathan O’Donohue from Amnesty International, she supervises the International Criminal Justice Clinic at Melbourne Law School.

Prior to coming to Melbourne, Rosemary completed her PhD at the University of New South Wales (UNSW). Her PhD thesis, titled ‘Prosecuting sexual and gender violence crimes in the International Criminal Court: Historical legacies and new opportunities’, presented an in-depth study of all cases before the ICC from 2002-2014.

Complementing her academic work, Rosemary has also worked and volunteered with a number of organisations including Amnesty International, Women’s Initiatives for Gender Justice, the International Bar Association, and the International Criminal Court.


RESEARCH HIGHER DEGREE STUDENTS

Florence Odora AdongResponsibility to Prevent Concept in International Law and its Application in Africa

My thesis explores the implications of the adoption of responsibility to prevent concept for the practice of international institutions operating in Africa. In order to do so, it will analyse the history of practices of conflict prevention by international institutions in the UN era, the meaning of responsibility in international law, and the potential effects of the application of the notion of responsibility to the concept of prevention in the work of international institutions, particularly the World Bank. The core argument of the thesis is that the indeterminacy and malleability of the concept of responsibility as interpreted in international law means that it offers nothing of value to African states seeking to constrain or shape the conduct of international institutions in ways that might contribute to peace, stability, and the protection of life in Africa.

Supervisors: Professor Anne Orford, Professor Bruce Oswald

Treasa DunworthThe Resurrection of Human Security in Disarmament

The idea of human security—that people, not states, should be at the centre of security discourse—has started to inform the disarmament community. The Landmines and Cluster Munitions Conventions are well-known examples. There are also a number of initiatives to reframe the nuclear weapons disarmament debate in “human security” terms. However, many human security advocates ignore the complexities within the term itself, it’s poor track record in earlier disarmament attempts, and the risk that it will be called in aid of militarization, rather than disarmament. I consider each of these difficulties (and others) but nonetheless advocate a human security lens for disarmament.

Supervisors: Professor Tim McCormack, Professor Tania Voon

Chris JenksThe American Way of War Crimes: Reconceptualizing the United States’ Approach to Service Member Violations of the Law of Armed Conflict

The thesis is a comprehensive study of the effects of the U.S. decision to prosecute its service members who violate the law of armed conflict through an enumerated article of the Uniform Code of Military Justice and not a war crime charge. The thesis considers the historical origins of this charging preference and then traces its effects throughout the US military criminal process: reporting, investigating/ fact finding, and trial. The thesis also considers both internal and external perceptions of the US process in terms of fairness and accountability.

Supervisor: Professor Bruce Oswald, Professor Jenny Morgan

Natalia JevglevskajaStates’ Weapons Review Obligations under Article 36 of the 1977 Additional Protocol I to the Geneva Conventions and beyond

While military technology becomes increasingly more complex and its destructive power more advanced, Article 36 of the Additional Protocol I (‘AP I’) sends a clear signal that law should not simply follow such technological developments, but instead steer them. Given that only a handful of States are known to have a weapons review process in place, the situation is disconcerting. The thesis examines the role of Article 36 as well as its limits in ensuring that emerging military technology, such as cyber capabilities and autonomous weapons systems, remain consistent with international law. Where emerging technology fails to adhere to existing legal standards — for example, capacity of autonomous weapon systems (‘AWS’) to comply with the principle of distinction — an Article 36 review serves to identify these issues. Moreover, where new technologies challenge extant legal provisions — for example, whether the concept of attack under AP I adequately covers the employment of military cyber-capabilities — the law will only change if States see the need for such change. Without thorough weapons reviews this need would arguably remain undiscovered.

Supervisors: Professor John Tobin, Dr Rain Liivoja

Magda KaragiannakisCorporate Officials and International Criminal Law

Members’ Profiles


The thesis examines the questions of how individual private economic actors such individual business people or corporate officials such as directors, managers, contractors, associates and employees can be held individually liable under international criminal law. In doing so it addresses which substantive crimes and forms of liability are the most likely to be applied to these actors under the ICC statute. It also addresses the difficulties in successful prosecution of such actors,

Supervisors: Professor Gerry Simpson, Professor Christine Parker

Kobi LeinsLegal Frameworks Governing the Use of Nanomaterials by the Military: A Review of Thermobarics, Optogenetics and Genetic Modification

Nanotechnology is a rapidly developing area of science, and the military has been very keen to make use of its applications. Concerns have been expressed regarding the adequacy of the current legal framework to respond to potential military applications of nanotechnology. This research explores potential legal issues being raised by military applications of nanotechnology specifically. More broadly, the legal frameworks examined in this thesis have potential application to other new and emerging technologies, and highlight the breadth and depth of existing international legal frameworks.

Supervisors: Professor Alison Duxbury and Professor Christine Parker

Simon McKenzieIsraeli Settlements and the ICC: Could there be a successful prosecution for the continued existence and expansion of Israeli Settlements in the West Bank?

The International Criminal Court (ICC), 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 some of the principles and obligations from international humanitarian law into the crimes of the Rome Statute. It also shows how the modes of liability used by the ICC could be tested by a situation where the accused acts as part of a democratic government and helps maintain criminal policies that have been developed over decades according to a coherent and consistently applied perspective of international law.

Supervisors: Professor Tim McCormack, Professor Bruce Oswald.

Members’ Profiles


Members’ Profiles

MILITARY NODE MEMBERS

Squadron Leader Anthony Erman – Legal Training Officer - Air ForceSQNLDR Erman is a Legal Officer in the Royal Australian Air Force (RAAF), is currently the Legal Training Officer – Air Force, at the Military Law Centre (MLC).

SQNLDR Erman joined the RAAF in 2010. He has previously been posted to Headquarters Air Command and 92 Wing. He has also deployed on several domestic and international operations.

As a result of these assignments, SQNLDR Erman is experienced in advising and instructing military operators across a wide range of operational legal issues.

Lieutenant Commander Kent Browning RAN – Legal Training Officer - NavyLCDR Browning joined the Royal Australian Navy in 2000 as a Warfare Officer, and commenced his legal training in 2002. During his sea-time, LCDR Browning served on the destroyer HMAS Brisbane and amphibious ship HMAS Manoora.

Within the legal category, LCDR Browning has undertaken the full breadth of legal roles roles, from prosecuting for the Director of Military Prosecutions, advising the Fleet on discipline, operational and administrative law matters, to providing legal assistance to sailors, and undertaking operational border protection roles. He has served with the Military Law Centre as the Legal Training Officer – Navy since February 2017.

LCDR Browning has extensive experience in counter-piracy and broader naval operations in the Middle East and Indian Ocean regions, having deployed to Bahrain as a legal advisor within the Combined Maritime Forces (CMF) three times since 2011. LCDR Browning has also served on several operational law-focused postings and shorter-term deployments, including a 5 month exchange with the Royal Navy as the SO1 International Law in their equivalent of Fleet Headquarters.

His deployments and postings allowed LCDR Browning to specialise in both maritime operations law and discipline law. LCDR Browning has also been heavily involved with the design and delivery of legal training across the full breadth of operations, discipline and administrative law, and was awarded a Commander Australian Fleet commendation partly for these efforts in December 2008.

Major Sharon Ackman – Legal Training Officer - ArmyMAJ Ackman studied at the University of New South Wales, and worked as a corporate lawyer in Melbourne, Australia before joining the Australian Army in 2011.

Her previous postings have included Combat Support Services Brigade in Sydney, 3 Combat Brigade in Townsville, Special Operations Command and the Royal Military College Australia, which oversees all initial training in the Australian Army.

Her operational experience includes a 2012 deployment to East Timor, and 2015 and 2016 deployments to the United Arab Emirates.

MAJ Ackman has degrees in history and law, and Masters in Strategy and Security studies and international law. She is currently posted to the Asia Pacific Centre for Military Law, where she works as a Legal Training Officer.

Group Captain Enrico ‘Ric’ Casagrande, RAAF ReserveGPCAPT Casagrande is an Australian reserve military officer, operations specialist, and international lawyer with a speciality in the Law of Armed Conflict, air power doctrine, and with a wide range of international experience.

He has served as General Counsel for the Australian Federal Police, as Director of International Law in the Australian Department of Defence and as pool delegate for the International Committee of the Red Cross. He has over 24 years full time service in the RAAF serving in the usual range of air force military posting and for the last 7 years has continued to serve as a member of the Reserve at the rank of Group Captain (Colonel, O-6).

He is the author of the RAAF Commanders Guide on Operations Law and has contributed to numerous other manuals relating to the law of armed conflict and the military. He has extensive international experience and has had frequent highly successful engagement with military and police forces both in his capacity as the Chief Lawyer for the AFP, and with the ADF having been Director of Air Force Legal Services and Director of the Air Power Development Centre, which has extensive engagement with military forces in Asia. He was also the Australian Defence Attaché, Southern Europe (Rome) covering Turkey, Israel, Greece, Nth Africa and Italy between 2005-2009.

He has also broad field experience, including serving on active operations in Baghdad in 2004 and as civilian justice adviser in Bagram, Afghanistan, 2012-13. As Director of International Law for the Australian Department of Defence he worked closely on many operational law matters, including negotiations on international treaties to which Australia is a party.


Publications

Book ChaptersAuthers, B., Charlesworth, H., Dembour M-B., and Larking E., ‘Human Rights Rituals: An Introduction’ Humanity Spring, pp. 63-73

Charlesworth, H., ‘Treaties on Women’ in Oxford Handbook on UN Treaties, S. Chesterman & D. Malone eds, Oxford: Oxford University Press (in press)

Charlesworth, H. & Merry, S. et al., ‘International Organizations and the Technologies of Governance’ in International Panel on Social Progress, O. Bouin & M. Fleurbaey eds, Oxford: Oxford University Press, pp. 455-487

Charlesworth, H., ‘Culture and Tradition in the International Human Rights System’ in Justice and World Order: Reassessing Richard Falk’s Scholarship and Advocacy, G. Andreopoulos & C. Carey eds, Oxford and New York: Routledge (in press)

Charlesworth, H., ‘Prefiguring Feminist Judgment in International Law’ in Feminist Judgments in International Law, L. Hobson & T. Lavers eds, Hart Publishing (in press)

Charlesworth, H., ‘Feminist Futures in International Human Rights Law’ in Human Rights Futures, N. Bhuta ed. Oxford: Hart Publishing (in press)

Charlesworth, H., ‘Australia and the International Order’ in Oxford Handbook of the Australian Constitution, C. Saunders & A. Stone eds Oxford: Oxford University Press, pp. 425-446

Charlesworth, H., ‘International Law and International Justice’ in Oxford Handbook of International Political Theory, C. Brown & R. Eckersley eds Oxford: Oxford University Press, pp. 143-152

Duxbury, A., International Organizations, in Oxford Bibliographies in International Law, Oxford University Press, New York (Rev ed 2018)

McDougall, C., Protecting Civilians by Criminalising the Most Serious Forms of the Illegal Use of Force: Activating the International Criminal Court’s Jurisdiction over the Crime of Aggression in Philippe Sands and Mark Lattimer (eds), The Grey Zone: Civilian Protection between Human Rights and the Laws of War, Hart Publishing.


McDougall, C., The Other Enemy: Transnational Terrorists, Armed Attacks and Armed Conflicts in Leila N. Sadat (ed.), Seeking Accountability for the Unlawful Use of Force, Cambridge University Press.

Articles in JournalsLiivoja, R., Biomedical enhancement of warfighters and the legal protection of military medical personnel in armed conflict. Medical Law Review, 26 3: 421-448.

Liivoja, R., Left of bang interventions in trauma: some legal implications of military medical prophylaxis. Journal of Medical Ethics, 44 7: 509-510.

Liivoja, R., Are enhanced warfighters weapons, means, or methods of warfare?. International Law Studies, 94 161-185.

Liivoja, R., 2018, September 12, Why it’s so hard to reach an international agreement on killer robots. The Conversation.

McCormack T, ‘International Humanitarian Law and the Targeting of Data’, International Law Studies, 94, (1) pp. 222-240.

McDougall, C., ‘Report on the Facilitation on the Activation of the Jurisdiction of the International Criminal Court over the Crime of Aggression and Resolution ICC-ASP/16/RES.5 on the Activation of the Jurisdiction of the Court over the Crime of Aggression’ (2018) 57:3 International Legal Materials 513.

Otto, D,. International Law, Social Change and Resistance: A Conversation Between Professor Anna Grear (Cardiff) and Professorial Fellow Dianne Otto (Melbourne). Feminist Legal Studies.

Publications


Research Programs

Program on the Regulation of Emerging Military Technologies (PREMT)GPCAPT Ian Henderson, Natalia Jevglevskaja, Kobi-Renee Leins, Dr Rain Liivoja, A/Prof Robert J Mathews, Prof Tim McCormack, Tim McFarland, Angus Willoughby

Advances in technology are quickly adapted for military ends. Yet the legal implications of using emerging technology for offensive purposes are often under-examined. At APCML, the Program on the Regulation of Emerging Military Technologies (PREMT) seeks to identify hostile uses of computer networks, robotics, nanotechnology and biotechnology that raise concerns in light of the humanitarian objectives of the law of armed conflict and evaluate the compatibility of these technologies with the existing law. With the aim of suggesting improvements to the current regulatory framework, the research group devotes particular attention to the challenges that these technologies pose to the central tenets of the law of armed conflict, such as the protection of civilians and individual accountability for violations.

A particular feature of this research program is the involvement of three Research Higher Degree Students who are engaged in research on the following topics:

Natalia Jevglevskaja – States’ Weapons Review Obligations under Article 36 to the 1977 Additional Protocol I to the Geneva Conventions and Beyond

Kobi Leins – Nanotechnology and the Law of Armed Conflict: Governing the Molecular

Tim McFarland – Autonomous Weapon Systems and the Law of Armed Conflict (completed examination in October 2017 and graduated December 2017)

For an up to date list of funding sources and research outputs, please visit www.premt.net

Hindsight Bias in Military InvestigationsDr Inbar Levy APCML Melbourne Law School, Professor Tomer Broude Hebrew University of Jerusalem

This research project entails a theoretical and empirical analysis of military investigations from the behavioural perspective. The project examines whether decision makers involved in military investigations could be influenced by the ‘outcome bias’, and more specifically, whether decision makers with military expertise and experience are less likely to judge events in hindsight comparing to lay people.

Research was undertaken with collaborators from the Hebrew University of Jerusalem, and data collection with Israeli students who are army veterans and Australian Defence Force participants is now taking place. The results will be presented in a conference in Jerusalem at the beginning of 2019.

Participants at the Emerging Military Technologies Applied to Urban Warfare workshop


VisitorsHannah KielHannah was a visiting scholar during December 2018 at the APCML. The main focus of her work was on arms transfers to various non-state actors in Syria and the impact of these actions on customary international law. She analysed the state practice of states, as well as states declarations. Especially, state practice since 2012 combined with vague justifications put forward by a significant number of states created the impression of legality of these actions.

Hannah examined states language on humanitarian intervention and on the recognition of the Syrian opposition as the legitimate representative of the Syrian people. She thereby examined lines of argumentation to unravel the diffuse relationship between legitimacy and legality linguistically created by states.

Another focus was on the justification of arms transfers to the opposition in order to fight ISIS. The justifications of states in this regard sought to portray the transfers as being covert under art. 51 of the UN Charter. The justification of self-defence has been advocated expressly for direct military intervention, but only implicitly for arms transfers. Therefore, Hannah analysed in how far these statements can be taken as evidence of opinio juris within the process of the development of customary international law.

Host: Asia Pacific Centre for Military Law

Michelle LeshAs a Visiting Fellow at the APCML Michelle has been conducting research towards a monograph, ‘The International Moral, Legal and Political Implications of Israel’s Policy of Targeted Killing’. The fellowship has afforded her the opportunity to turn her experience in the field and her writing and thinking since completing the doctorate into a monograph. It is concerned with international humanitarian law and international human rights law, and the relationship between law, politics and morality as they showed in the implementation of that policy. Although other States, in particular the US and the UK, have developed their own practices and policies in regard to targeted killing, the Israeli case remains important because it was precedent setting. Much can be learnt from the way that it influenced the development of the practice by different States and legal responses towards it. Though over ten years have passed since Israel’s Targeted Killing case, its relevance to the issues it addressed has not diminished. Nor have the issues become less prevalent in the way wars are prosecuted. President Obama ordered thousands of drone attacks on targets worldwide. President Trump has continued and extended that practise. It is therefore of fundamental importance that there be a coherent body of international law that governs the conduct of States and non-State actors on this matter. Lesh’s research during her time as a visitor of the Centre has also focused on a more general, yet central, issue of consideration in the monograph, which is the growing public concern with civilian casualties during war. Why are we troubled by proportionality during armed conflict? Is it because we suspect that the law as it stands is not adequate to the current realities on the ground? Identifying the way in which changing moral attitudes has shaped our understanding of the law will help in crystallizing what the principle of humanity entails – as expressed through the Martens Clause – and how this guides our interpretation of the law.

Michelle Lesh holds a BA/LLB (Hons) from Monash University and a PhD from the University of Melbourne. She was a Post-Doctoral Fellow at the Hebrew University of Jerusalem. She has served as a foreign law clerk for Chief Justice Barak (Ret.) at Israel’s Supreme Court, as the principal researcher for the Turkel Commission Report on Investigating Alleged Violations of the Law of Armed Conflict, and as a human rights officer at UN Office of the High Commissioner for Human Rights. Most recently she worked as an assistant to Israel’s Deputy Attorney-General for International Law, Dr Roy Schondörf. She is currently a Visiting Fellow at the Melbourne Law School, where she is writing a monograph analysing targeted killing according to international law, through the case study of Israel.


Aleksandar Marsavelski Assistant Professor, Zagreb Law Faculty (Chair of Criminal Law).

He graduated summa cum laude from the University of Zagreb, where he received the Dean´s Award for Excellence and Rector´s Award for Best Paper. After graduation, he worked as junior assistant in the Ministry of Justice of Croatia, and then became a member of the Law Commission that drafted the Criminal Code of Croatia. Since 2010 he has taught at the University of Zagreb, and has been a member of the Executive Committee of the Croatian Unit of UNESCO Chair in Bioethics. In 2011 he was a member of the Law Commission that drafted the Law on the Non-Applicability of Statutory Limitations to Crimes of War Profiteering in Croatia. He was also one of the initiators of the Law on the Rights of Victims of Sexual Violence during the War in

Visitors


Croatia.

He earned his LL.M. from Yale Law School, where he served as editor of the Yale Journal of International Law. He received the Max Planck Institute for Foreign and International Criminal Law’s doctoral scholarship in 2014-2015 for his joint PhD on criminal responsibility of political parties at the University of Freiburg (summa cum laude). Since 2014 he has been a member of the Max Planck Partner Group for “Balkan Criminology” and has been involved in the TransCrim project. Since 2016 he has been a member of the International Chamber of Commerce (ICC) Commission on Corporate Responsibility and Anti-corruption, advisor of the Korean Transitional Justice Working Group, and a foreign secretary general of the Research Center for EU Criminal Law at the Institute of Law, Shanghai Academy of Social Sciences in China. In 2017 he was a visiting fellow at the Australian National University, where he studied political party regulation. He is also a collaborator on the Peacebuilding Compared project, and a member of the European Criminology Group on Atrocity Crimes and Transitional Justice (ECACTJ).

Aleksandar Marsavelski’s main area of current research is political party crime and regulation. He presented his research results at a number of international conferences, including Annual Conferences of the European Society of Criminology (ESC) and joint sessions of the European Consortium for Political Research (ECPR). He received the Annual Best Young Scientist’s Paper Award from the Society of University Professors, Scholars and Other Scientists in Zagreb in 2015 for the article Responsibility of Political Parties for Criminal Offences: Preliminary Observations, Challenges and Controversies.

Host: Asia Pacific Centre of Military Law

Phoebe Wynn-PopePhoebe Wynn Pope has over 25 years experience in the humanitarian sector. After working with the victims and perpetrators of the Rwandan genocide, Phoebe returned to Australia to undertake a PhD in international law focusing on the international community’s Responsibility to Protect (R2P) against war crimes, crimes against humanity and genocide. Phoebe was a founding Director of the Humanitarian Advisory Group where she worked on the protection of civilians in armed conflict, and most recently, she was Director of International Humanitarian Law and Movement Relations at Australian Red Cross. Phoebe has been published in the Yearbook of International Humanitarian Law, the International Review of the Red Cross, and has written several book chapters.

As Visiting Scholar to the APCML Phoebe explored the impact of States apparent disinclination to fully engage in either the development or protection of IHL. This can be seen in States rejection of what became known as the “compliance resolution” at the International Conference of the Red Cross and Red Crescent Movement in 2015; States legislating against some of the most fundamental principles in international humanitarian law in the context of counterterrorism legislation; and the failure of States to provide international humanitarian law ‘opinio juris’ (Schmitt & Watts [2015]) leaving development of legal understanding to academics and international institutions such as the ICRC.

In November, Phoebe presented to Griffith University ‘Women in Political Leadership Symposium: The Effectiveness of Human Rights Institutions’ on her research.


Visitors



Emerging Military Technologies Applied to Urban Warfare21 & 22 March | Melbourne Law School

Conflict is increasingly taking place in urban settings and the development and deployment of new technologies in this context raises both challenges and opportunities.

In March 2018, the International Committee of the Red Cross (ICRC), the Asia Pacific Centre for Military Law (APCML) and the Program on the Regulation of Emerging Military Technologies (PREMT) convened the “Emerging military technologies applied to urban warfare” roundtable in Melbourne, Australia.

Bringing together government, military and academic experts from various disciplines, the roundtable examined three areas of emerging technology and their intersection with urban warfare: cyber capabilities, autonomous weapon systems and human modification technologies.

Prof. Alison Duxbury Asia Pacific Centre for Military LawDr Rain Liivoja University of QueenslandLeonard Blazeby Head of ICRC mission in CanberraEllen Policinski Editor, International Review of the Red CrossProf. Tim McCormack Melbourne Law School and University of TasmaniaMr. Diwaka Prakash Department of Foreign Affairs and TradeProf. Eric Talbot-Jensen Brigham Young UniversityProf. Michael Evans Australian Defence College (Canberra) and Deakin University in MelbourneTim McFarland post-doctoral fellow, Melbourne Law SchoolDr. Jai Gaillot University of New South WalesNatalie Nunn PhD candidate, University of TasmaniaDr. Adam Henschke National Security College and Australian National University Georgia Hinds ICRCDr. Suelette Dreyfus Melbourne School of Engineering Christine Ernst A/g Senior Legal Officer, Office of International Law, Attorney-General’s Department

Ellen Policinski, Prof. Eric Talbot-Jensen and Georgia Hinds



Human Rights and Accountability Mechanisms in NIACLauren Neumann Aarhus University, Denmark

19 February | Melbourne Law School | Seminar

Displacement and armed conflict go hand-in-hand and those fleeing violence or persecution are among the most vulnerable to human rights abuses. Means of effective accountability for perpetrators appear at times to be few and far between. This seminar considered the capacity and jurisdiction of states and non-state armed groups to protect human rights in non-international armed conflicts. In particular, focus was on the formal and informal accountability mechanisms available to ensure positive protection of internally displaced people, as well as the prevention of rights abuses. These mechanisms, including courts of non-state armed groups, have varying degrees of compatibility with existing international law, and the flexibility of the legal system to accommodate them will therefore also be discussed.

Lauren Neumann is a PhD student at Aarhus University, Denmark. She did her undergraduate degrees at ANU in Canberra, and a Master of International Studies at Aarhus University. She is currently a visiting doctoral student at MLS. Her main research interests are in international law, specifically human rights, humanitarian law, and refugee law.

Creative Non-Fiction in Law: Philippe Sands in Conversation with Hilary CharlesworthProfessor Philippe Sands QC University College London

21 February | Melbourne Law School | Seminar

In his award-winning book, East West Street: On the Origins of Crimes Against Humanity and Genocide (Alfred Knopf/Weidenfeld & Nicolson 2016), lawyer and writer Philippe Sands QC explores how personal lives and history are interwoven. The book is part historical detective story, part family history, and part legal thriller. It explores the connections between Sands’ work on ‘crimes against humanity’ and ‘genocide’, the events that overwhelmed his family during the Second World War, and an untold story at

Professor Hilary Charlesworth and Professor Philippe Sands QC


the heart of the Nuremberg Trial.

In this conversation, Philippe Sands discussed the various types of writing in which he engages (book, stage, film, radio); how this turn came about; its relationship with more traditional forms of scholarship and legal writing; and how creative non-fiction can illuminate the law.

Philippe Sands QC is Professor of Law at University College London and a barrister and arbitrator at Matrix Chambers. He is the author of Lawless World (2005) and Torture Team (2008), of academic books on international law, and contributes to the New York Review of Books, Vanity Fair, the Financial Times and The Guardian. His latest book is East West Street: On the Origins of Crimes Against Humanity and Genocide (Alfred Knopf/Weidenfeld & Nicolson), winner of the 2016 Baillie Gifford (Samuel Johnson) Prize and 2017 British Book Awards Non-Fiction Book of the Year. It is accompanied by a BBC Storyville film, My Nazi Legacy: What Our Fathers Did. He is now writing the sequel. He is a vice president of the Hay Festival and a member of the board of English PEN

Crown and Sword: executive power and the use of force by the Australian Defence ForceAssociate Professor Cameron Moore Australian National Centre for Ocean Resources and Security, University of Wollongong

12 June | Melbourne Law School | Seminar

The Australian Defence Force, together with military forces from a number of western democracies, have for some years been seeking out and killing Islamic militants in Iraq, Syria and Afghanistan, detaining asylum seekers for periods at sea or running the judicial systems of failed states. It has also been ready to conduct internal security operations at home. The domestic legal authority cited for this is often the poorly understood concept of executive power, which is power that derives from executive and not parliamentary authority. In an age of legality where parliamentary statutes govern action by public officials in the finest detail, it is striking that these extreme exercises of the use of force often rely upon an elusive legal basis.

This presentation presented the conclusions of the recently published book Crown and Sword, which seeks to find the limits to


Professor Bruce Oswald and Associate Professor Cameron Moore



the exercise of this extraordinary power.

Cameron Moore is an Associate Professor at the Australian National Centre for Ocean Resources and Security (ANCORS) at the University of Wollongong. He is also a visiting Associate Professor with Centre for Military and Security Law and the Centre for International and Public Law at the Australian National University as well as a Senior Lecturer in the School of Law at the University of New England (UNE), Armidale, NSW. He has previously been the Academic Master of Robb College at UNE. His publications include the books Crown and Sword: Executive Power and the Use of Force by the Australian Defence Force (2017) and ADF on the Beat: A Legal Analysis of Offshore Enforcement by the ADF (2004) and other articles and chapters on the Australian Defence Force and maritime security. Between 1996 and 2003, Cameron was a Royal Australian Navy Legal Officer. His legal experience includes service at sea as well as advising at the strategic level on a number of ADF deployments, ongoing fisheries and border protection operations and the Tampa incident. Cameron is still an active Navy reservist. He had a brief deployment to Afghanistan in 2010. He completed a PhD thesis through the Australian National University in 2015 on the Australian Defence Force and the Executive Power and he was made a Fellow of the Royal Geographical Society in the same year.

Re-examining the Lotus Case (France v Turkey) (1927)Professor Douglas Guilfoyle Monash University

26 July | Melbourne Law School | Seminar

Why was the Lotus case litigated? The negligence of the French first officer of the SS Lotus caused the death of eight Turkish nationals, but on putting in at Constantinople he was sentenced to only 80 days in prison. Despite this leniency, France protested that Turkey’s actions were contrary to international law. Turkey was not yet a party to the PCIJ statute but nonetheless consented to submission of a case by compromis. Again, why?

This paper contextualised and examined what was at stake beyond the immediate jurisdictional point for the parties, their pleadings, and the personalities of the lead advocates. It also revisited PCIJ’s notorious Lotus dictum, that restrictions upon the independence of States cannot be presumed. It suggested that for Turkey, as a new ethno-nationalist State, formal sovereign equality (based on adherence to a European standard of civilization) was a crucial shield against external interference. The French approach was based, implicitly, on a legally hierarchical relationship between European powers and Turkey.

For modern international lawyers there are effectively two Lotus cases: one concerning first-principles understandings of international law; the other on the law of jurisdiction. The first is the more remembered but, this paper suggests, widely

Attendees listening to Professor Douglas Guilfoyle and Professor Hilary Charlesworth discussing the Lotus Case



misunderstood. The Lotus dictum forms part of the Court’s attempt to navigate the turn from States as coexisting ‘national sovereigns’, to an international law of cooperation between formal equals.

Douglas Guilfoyle is a professor of law at Monash University. Prior to joining Monash in 2015 he was a Reader at the UCL Faculty of Laws. His principal areas of research are the international law of the sea, international and transnational criminal law, and maritime security. He is the author of Shipping Interdiction and the Law of the Sea (CUP 2009) and International Criminal Law (OUP 2016). He has acted as consultant to various governments and international organisations, including as a legal advisor to Mauritius in the Chagos Archipelago (Maritus v UK) law of the sea arbitration.

The Role of Elected Members on the Security Council: Key Players or Lame Ducks?An International Law Perspective

Professor Nico Schrijver Professor of Public International Law, Leiden University

14 August | Melbourne Law School | Seminar

Apart from the five permanent powers (P-5), the Security Council consists of ten elected members (E-10). They serve a term of two years only and hence they are also called the non-permanent members. Furthermore, unlike the P-5 they are not vested with the right of veto. At the same time, the E-10 play an indispensable role in the decision-making process: the Security Council can only take decisions if least 9 members vote in favour, with none of the P-5 casting a veto. The E-10 represent five different regions of the world. Apart from an equitable geographical distribution, they are also elected in view of their contribution to the maintenance of international peace and security and the other purposes of the UN. Both Australia and the Netherlands have served five times on the Council since 1945.

While fully realizing that the E-10 never form a homogeneous group, it is pertinent to identify and explore their joint strengths. What role for the E-10 is foreseen by the Charter, and how has this role evolved in practice? What are their chances and opportunities to employ what is in the toolbox of the Security Council? Are there any particular ‘niches’ for the E-10 in the Security Council, such as, for example, taking initiatives on rule of law issues, engaging in conflict prevention and debating the potential effects of climate change on peace and security? Can they serve as agents of the international community and norm setters? The lecture also discussed the reform of the Security Council, in particular from the perspective of the E-10. Should their position be strengthened, e.g. by increasing their number or by extending the term of two years? Is there any room for strengthening their position by informal changes that do not require Charter amendment?

Dr. Nicolaas Schrijver is Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Furthermore, since September 2017 he serves as State Councilor in the Council of State of the Netherlands, which is the highest administrative court of the Netherlands and the principal legal advisory body of the government and parliament. Previously, he was Senator in the Dutch house of parliament (2011-2017), where he served as the Chair of the Standing Committee on Foreign Affairs, Development Co-operation and Defence and leader of the Dutch delegation to the Parliamentary Assemblies of the Council of Europe and the OSCE. Currently, Nicolaas Schrijver is also the President of the Institut de droit international, one of the most renowned institutes in the field of international law. He is a former Chair of the Academic Council on the United Nations System (2000-02) and also served as the President of the International Law Association (2010-2012) and President of the Royal Netherlands Society of International Law (2003-2011). Furthermore, he is member of the Permanent Court of Arbitration, the Royal Netherlands Academy of Arts and Sciences and the Curatorium of the Hague Academy of International Law. During 2009-2016 he served as independent expert member on the UN Committee on Economic, Social and Cultural Rights, including as vice-chair during 2010-2012. Since 1995 he is also honorary visiting professor of The European Union and Co-operation with Developing Countries at the Universite libre de Bruxelles.

Professor Nicolaas Schrijver appeared as legal counsel before the International Court of Justice and the International Tribunal for the Law of the Sea and as an expert before various international investment and law of the sea tribunals. In the early 1990s he also served as Legal Officer in the Office of the Legal Counsel, United Nations, New York.

The Human Right of PropertyProfessor José Enrique Alvarez Herbert and Rose Rubin Professor of International Law, New York University School of Law


Despite the absence of a comprehensive global pact on the subject, the human right to property protection – a right of property but only rarely to specific property – exists and is recognized in 21 human rights instruments, including some of the most widely ratified multilateral treaties ever adopted. The Cold War’s omission of property rights in the two principal treaties on human


rights, namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, has been overtaken by events. But that reality continues to be resisted by legal scholars, including human rights advocates, as well as by many across the political spectrum from many on the left (who associate property rights with misguided “Western” models for economic development) to some on the right (who see it as yet another intrusion on sovereign discretion sought by global elites). It is also resisted by U.S. courts which continue to assert that international law regulates the treatment of foreign property but not of “domestic takings” involving actions directed at a state’s own citizens.

This talk, based on a recent article, surveyed the reality of internationalized property rights protections outside the usual context in which it is addressed, namely to protect the property of foreign investors in the host states in which they operate. It canvassed the policy and jurisprudential objections to the idea of a treaty-based human right of property, addresses how human rights treaties respond to these objections, and advances a non-instrumentalist defense of the human right to property protection based on “moral intuitions” of what human dignity requires.

Professor Alvarez, the Herbert and Rose Rubin Professor of International Law at New York University Law School, was previously the Hamilton Fish Professor of International Law and Diplomacy and the executive director of the Center on Global Legal Problems at Columbia Law School. Professor Alvarez is a member of the Institut de Droit International and was the special adviser on public international law to the International Criminal Court’s first prosecutor. Alvarez is the former President of the American Society of International Law (2006-2008) and has recently completed his term as co-editor in chief of the American Journal of International Law.

His books include The Public International Law Regime Governing International Investment (2011) (based on his course at The Hague Academy of International Law); The Impact of International Organizations on International Law (2017) (based on his general course given at the Xiamen Academy of International Law); and International Investment Law (2018) (part of the American Classics Series). For a fuller biography, access to publications and a full curriculum vitae, visit his faculty profile at NYU School of Law.

The Case That Never Was: Al Bashir and the Great UnsaidDr Mia Swart Research Director, Democracy and Governance Unit


The 2009 arrest warrant issued by the International Criminal Court for the arrest of Sudanese President Omar Al Bashir for charges of genocide, crimes against humanity and war crimes had important implications for South Africa. The fact that South Africa failed to arrest Al Bashir when he visited South Africa in 2015 triggered litigation against the South African government. It was expected that the case would be taken on appeal to the Constitutional Court and that that Court would have the final word on the question of whether Al Bashir was protected by head of state immunity. The litigation path of the Al Bashir case however ended at the Supreme Court of Appeal. The fact that the case never reached the Constitutional Court has important implications. It means that the Constitutional Court never had the opportunity to make authoritative pronouncements on South Africa’s obligations under the Rome Statute and customary international law and meant that the Court could not resolve the question of whether sitting heads of state charged with international crimes are protected by immunity. Mia Swart’s paper examined the flaws in the SCA case and speculatively considered the arguments the Constitutional Court could have made in this regard. In highlighting the flaws in the SCA case, the paper focused on the SCA’s thin and inadequate treatment of the norm of jus cogens. The SCA’s emphasis on section 232 of the Constitution was further considered, particularly the question of whether it is desirable that an Act of Parliament should always trump customary international law.

Mia Swart is research director of the Democracy and Governance Unit of the Human Sciences Research Council (HSRC). Her research focus is on transitional justice, international criminal law and comparative constitutional law. She is currently a Visiting Professor at the University of the Witwatersrand and a non-resident fellow at Brookings Doha Center and a fellow of the Helen Suzman Foundation Before joining HSRC, she worked as Professor of International Law at the University of Johannesburg and Associate Professor at the University of the Witwatersrand. She previously worked as Assistant Professor of Public International Law and Global Justice at Leiden University from which she earned her PhD in 2006. She received research grants from the Alexander von Humboldt foundation in 2007 and 2009. In 2012, she worked at the Bingham Centre for the Rule of Law in London. Her work has been cited by South African courts as well as by the International Criminal Court. Her co-edited book The Limits of Transition: The South African Truth and Reconciliation Commission 20 Years After was published in 2017.

Mia has consulted for UNDP in Palestine and for Amnesty International in Southern Africa. Her work on Palestine focuses on reconciliation in the inter-Palestinian context as well as the Palestinian judiciary. She chairs the Complementarity committee of the International Law Association. She is a regular contributor to South African and international media outlets.



It Stays With You: Use of Force by UN Peacekeepers in HaitiPanel Discussion & Documentary Film Screening

30 August | University of Melbourne

Professor Siobhán Wills Ulster University

Associate Professor Jennifer Balint University of Melbourne

Dr Dolly Kikon University of Melbourne

Professor Bruce Oswald University of Melbourne

The film documents the eye-witness testimonies of survivors of heavily militarised UN peacekeeping operations in Cité Soleil in 2005. Survivors say that fire came from helicopters and penetrated the roofs of their corrugated iron dwellings. Children were amongst the fatalities. To date, there has been no independent or transparent investigation into the scores of deaths, injuries and demolitions.

Following the screening of It Stays With You: Use of Force by UN Peacekeepers in Haiti there was a panel discussion with Associate Professor Jennifer Balint, Dr Dolly Kikon, Professor Bruce Oswald APCML Director and film director Professor Siobhán Wills.

Siobhán Wills is a professor of law at the Transitional Justice Institute, Ulster University. She was awarded a British Academy Mid-Career Fellowship 2015-2016 to research use of force by Chapter VII mandated peacekeepers operating in situations where there is no armed conflict and was subsequently awarded an AHRC research grant 2016-2017 to make a documentary film, jointly with Prof McLaughlin (QUB), about peacekeeping in Haiti. She is a member of the International Law Association Committee on the Use of Force and of the Royal Irish Academy Social Sciences Committee. Prior to her appointment at Ulster University she held the Ariel Sallows Visiting Chair in Human Rights at the University of Saskatchewan. She has also taught at University College Cork, where she was Co-Director of the Centre for Criminal Justice and Human Rights. She has been a visiting fellow at the School of Advanced Studies, University of London; a Fulbright Fellow; a Hauser Global Fellow at NYU; and a Fellow on the Harvard Human Rights Program. She has published widely on international humanitarian law issues, peacekeeping, and protection of civilians.

Typology of Crimes of Political Parties in Armed ConflictsAssistant Professor Aleksandar Marsavelski Zagreb Law Faculty

4 September | Melbourne Law School | Seminar

Atrocities in armed conflicts are usually attributed to individuals, states and (in recent times) corporations. Case studies undertaken for the ‘Responsibility of Political Parties for Criminal Offenses research project suggest that some of the most serious crimes that mankind could imagine were acts largely committed, instigated or condoned by ruling political parties. These crimes are usually referred to in the literature as state crimes. When political parties in opposition commit atrocities, mostly terrorism, they appear as non-state actors.

Since the Nuremberg trial against organizations of the Nazi Party, one of the hidden challenges of international justice was how to condemn political parties for the international crimes attributable to them, and until now no permanent solution has been adopted. Still, the experiences of international criminal justice, in particular the factual findings of international criminal tribunals, reveal that political parties are actually organizational architects of the worst crimes of atrocities in the history of mankind: Ottoman Empire’s Committee of Union and Progress (Armenian genocide), Cambodia’s Communist Party of Kampuchea (Cambodian genocide), Rwanda’s Coalition for the Defence of the Republic (Rwandan genocide), Republika Srpska’s Serbian Democratic Party (Bosnian genocide), Workers’ Party of Korea behind the crimes against humanity in North Korea etc.

Political parties also engage in war profiteering schemes where they support enrichment of persons who financially support their political campaigns. Still, in jurisdictions worldwide and in international law, political parties bare the least accountability for the crimes they commit. Finally, this lecture discussed the possibilities of holding political parties criminally liable for international crimes as part of post-conflict transitional justice plan.

Professor Siobhán Wills




Aleksandar Marsavelski is an Assistant Professor in the Zagreb Law Faculty (Chair of Criminal Law).

He graduated summa cum laude from the University of Zagreb, where he received the Dean´s Award for Excellence and Rector´s Award for Best Paper. After graduation, he worked as junior assistant in the Ministry of Justice of Croatia, and then became a member of the Law Commission that drafted the Criminal Code of Croatia. Since 2010 he has taught at the University of Zagreb, and has been a member of the Executive Committee of the Croatian Unit of UNESCO Chair in Bioethics. In 2011 he was a member of the Law Commission that drafted the Law on the Non-Applicability of Statutory Limitations to Crimes of War Profiteering in Croatia. He was also one of the initiators of the Law on the Rights of Victims of Sexual Violence during the War in Croatia.

He earned his LL.M. from Yale Law School, where he served as editor of the Yale Journal of International Law. He received the Max Planck Institute for Foreign and International Criminal Law’s doctoral scholarship in 2014-2015 for his joint PhD on criminal responsibility of political parties at the University of Freiburg (summa cum laude). Since 2014 he has been a member of the Max Planck Partner Group for “Balkan Criminology” and has been involved in the TransCrim project. Since 2016 he has been a member of the International Chamber of Commerce (ICC) Commission on Corporate Responsibility and Anti-corruption, advisor of the Korean Transitional Justice Working Group, and a foreign secretary general of the Research Center for EU Criminal Law at the Institute of Law, Shanghai Academy of Social Sciences in China. In 2017 he was a visiting fellow at the Australian National University, where he studied political party regulation. He is also a collaborator on the Peacebuilding Compared project, and a member of the European Criminology Group on Atrocity Crimes and Transitional Justice (ECACTJ).

Aleksandar Marsavelski’s main area of current research is political party crime and regulation. He presented his research results at a number of international conferences, including Annual Conferences of the European Society of Criminology (ESC) and joint sessions of the European Consortium for Political Research (ECPR). He received the Annual Best Young Scientist’s Paper Award from the Society of University Professors, Scholars and Other Scientists in Zagreb in 2015 for the article Responsibility of Political Parties for Criminal Offences: Preliminary Observations, Challenges and Controversies.

Responsibility of Political Parties for Crimes in Armed Conflicts: Regulatory Challenges and SolutionsAssistant Professor Aleksandar Marsavelski Zagreb University

Melbourne Law School | 26 September | Seminar

Some of the worst atrocities known in human history are attributable to political parties: from the Armenian genocide committed under the leadership of the Committee of Union and Progress (CUP) to Rwandan genocide orchestrated by the Coalition for the Defence of the Republic (CDR). At the same time, the political processes of most countries today are dominated by one or more political parties. Regardless of the type of government in which they operate, political parties have the formal duty to conform their activities with the law, while their material duty is to act for the citizen’s welfare. But can they conform with these duties in armed conflicts? What are the consequences if they fail to do so? Could a political party regulatory scheme be used to prevent armed conflicts?

Answering these questions could improve governance because it is not only about regulating armed conflicts. It is about developing policies to regulate political parties in a responsive way to their unlawful activities and acts that are totally against citizen’s welfare. It includes regulation of political parties in peacetime to prevent crimes such as corruption and hate speech because widespread corruption and hate speech in times of economic turmoils are capable of cascading into atrocious armed conflicts. By allowing criminal liability of political parties, including party bans in exceptional cases, according to responsive regulation theory, all other regulatory instruments will become more effective. This seminar presented different models and levels of liability of political parties in response to their crimes in wartime.


Civil War, Intervention, and International LawProfessor Anne Orford | Melbourne Law School

Monday 5 March | 1315 - 1415 | Campbell Park CP2 Level 4 Conference Room

Whether, and under what conditions, external actors can lawfully intervene in civil wars continues to be a pressing question for international law and international relations. The intensity of recent debates about the legality of interventions in Iraq, Syria, Yemen, and Ukraine illustrates the urgency of this question and the difficulty of finding general principles to address it. This seminar explored whether and how legal arguments in support of interventions in civil wars to protect civilians or defeat non-state terrorist groups have reshaped the foundational legal principles concerning prohibition of force and non-intervention over the past two decades. In so doing, it sought to unsettle the growing cynicism about international law that is produced by the use of the rhetoric of legality by all sides in civil wars. American military lawyers have developed the concept of ‘lawfare’ to describe the tactical deployment of international legal arguments as part of political battles, and scholars have sought to develop accounts of international law that recognise the potential for law to be used as a weapon and a strategic partner in warfare as well as a restraint on violence and an ethical yardstick. This seminar did not seek to dismiss the recognition that international law is political, but rather sought to avoid a cynical reaction to that recognition. Rather than treating the inability of law to remain ‘above’ the political battle as a problem, the seminar considered whether it is possible to develop a foundation for contemporary public debates about the legality of intervention that takes conflicts over empirical evidence and normative arguments, or facts and values, seriously.

Anne Orford is Redmond Barry Distinguished Professor, Michael D Kirby Chair of International Law, and an Australian Laureate Fellow at Melbourne Law School. She is an elected Fellow of the Academy of the Social Sciences in Australia, and a past President of the Australian and New Zealand Society of International Law. Her work has been recognised by the award of the Kathleen Fitzpatrick Australian Laureate Fellowship by the Australian Research Council (2015-20), a Future Fellowship awarded by the Australian Research Council (2012-15), an Australian Professorial Fellowship awarded by the Australian Research Council (2007-2011), the Woodward Medal for Excellence in Humanities and Social Sciences awarded by the University of Melbourne (2013), and honorary doctorates of laws awarded by Lund University (2012), the University of Gothenburg (2012), and the University of Helsinki (2017). She has held numerous visiting positions, including as Raoul Wallenberg Visiting Chair at Lund University, Hedda Andersson Visiting Research Chair in History at Lund University, Visiting Professor at University Paris 1 (Panthéon-Sorbonne), Torgny Segerstedt Visiting Professor at the University of Gothenburg, and Senior Emile Noël Research Fellow at New York University.

Professor Orford is currently directing a major five-year research program at Melbourne Law School funded by the Australian Research Council’s Laureate Fellowship scheme from 2016 to 2020. The Laureate Program in International Law has established a new interdisciplinary research team of scholars in law, the social sciences, and the humanities to work on a major project entitled Civil War, Intervention, and the Transformation of International Law. The Laureate Program combines historical research, legal analysis, and critical theorising to grasp the changing patterns and practices of international intervention, and make sense of the evolving role and responsibility of foreign actors in civil and proxy wars. It brings together leading scholars in international law, global history and international relations, world-class early career researchers, and innovative practitioners to explore the place

Melbourne@Defence

Professor Ann Orford


of international law in contemporary social, economic, and political transformations.

Her major publications include International Authority and the Responsibility to Protect (Cambridge University Press 2011), Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge University Press 2003), and, as co-editor, The Oxford Handbook of the Theory of International Law (Oxford University Press 2016). She has delivered keynote and plenary addresses at annual conferences of the American Society of International Law, the Australian Historical Association, the Australian and New Zealand Society of International Law, the European Society of International Law, the French Society of International Law, and the Korean Society of International Law, and presented her research by invitation to governments, international organizations, nongovernmental organizations, and university audiences in Australia, Austria, Belgium, Canada, China, Colombia, Finland, France, Germany, Hungary, India, Italy, Japan, The Netherlands, New Zealand, Russia, Singapore, South Korea, Sweden, Switzerland, the United Kingdom, and the United States.

A Call to Arms: Why the Need to Publish State Practice and Opinio Juris has Reached a Critical PointDr Carrie McDougall | Melbourne Law School

Thursday 27 September | 1400 - 1500 | Defence Legal, Campbell Park, NODE B, CP2-4-092

The Coalition’s operations against Daesh in Syria illustrate that the jus ad bellum has adapted to meet the challenges posed by sophisticated transnational organised armed groups – but that lawyers have struggled to find answers to parallel questions arising under the jus in bello. This presentation examined why the jus in bello has been less adaptive. It also examined why, in an era of challenge to the international rules-based order, it is important for Australia and its allies to shrug off the shroud of secrecy in which they cloak military operations. If they don’t, customary international law is going to be shaped by others – either non-State entities that tend to favour humanitarian considerations over military necessities, or States that have different strategic outlooks to ours. The result may not be consistent with Australia’s national security interests. Hence the need to do more to shape the debate now.

Dr Carrie McDougall re-joined Melbourne Law School in 2018, after nearly a decade working for DFAT. While at DFAT, she served first as Assistant Director of the International Law Section and then as Legal Adviser at Australia’s Mission to the United Nations in New York, where she was elected as Vice-President of the Bureau of the United Nations General Assembly’s Sixth Committee. Carrie holds a PhD in international law and is the author of The Crime of Aggression under the Rome Statute of the International Criminal Court (Cambridge University Press, 2012). Her primary areas of research are the jus ad bellum, international criminal law and international humanitarian law.

Adjudicating the Human Rights of Military PersonnelProfessor Alison Duxbury | Melbourne Law School

Tuesday 13 November | 1400 - 1500 | Campbell Park, CP2, Level 4 Conference Room

The application of international human rights law to the actions of military personnel has been the subject of extensive debate, including commentary and reports by international and non-governmental organisations. However, there is much less literature examining the application of human rights law to military personnel as bearers of rights. To the extent that the human rights of military personnel have been discussed, it has tended to be in the context of due process rights, for example, the right to fair trial in military justice systems. This presentation aimed to examine recent jurisprudence on the human rights of military personnel to determine if there is any common threads that can be found in the discussions of the rights of members of the armed forces in national and international courts.

Alison Duxbury is a Professor at Melbourne Law School and an Associate Director of the Asia Pacific Centre for Military Law. She is a member of the Council of the Australian and New Zealand Society of International Law and the Executive Council of the Asian Society of International Law. Alison’s major teaching and research interests are in the fields of international law, international institutional law, human rights law and public law. Her publications include The Participation of States in International Organisations: The Role of Human Rights and Democracy (Cambridge, 2011), a co-edited collection, Military Justice in the Modern Age (Cambridge, 2016), and a forthcoming co-authored book, Can ASEAN Take Human Rights Seriously?, to be published by Cambridge University Press.

Melbourne@Defence


Maritime Operations Law CourseDate: 12 – 16 February 2018 Loc: Victoria Barracks, Sydney

Ranks: Capt (03) – Col (06) (equiv) and APS 5 – EL 2 or equivalent

COURSE DESCRIPTION

Understanding the legal environment applicable to maritime operations is fundamental to the effective planning and conduct of operations.

The APCML Maritime Operations Law Course provided an introduction to the law of the sea, maritime law enforcement issues, the law of naval warfare, and the application of rules of engagement to maritime operations. It aimed to develop a sound understanding of key international law principles that govern maritime operations and produce an appreciation of how to apply those principles in a military and naval context.

The course was conducted over five days at Victoria Barracks in Sydney, Australia. The program was structured around a series of core learning modules taught by highly qualified instructors, and complemented by syndicate exercises and examination of case studies designed to illuminate and consolidate the issues raised during instructors’ presentations. The core learning modules included: Introduction to Law of the Sea; Maritime Zones; Maritime Law Enforcement; Use of Force at sea; Maritime Regulation and Enforcement on the High Seas; Responses to Terrorism and Proliferation at Sea; Law of Naval Warfare; , Maritime Disputes, Coalition and UN Maritime Operations; and Rules of Engagement for Maritime Operations.

The course was also designed to promote engagement and interaction between military personnel from across the Asia Pacific region and to build greater understanding and commonality in the application of international law to military operations.

In 2018, the course was attended by 37 participants comprising 29 international delegates from 20 countries, six Australian Defence Force (ADF) members, one Defence APS member, and one representative from the Australian Border Force. International participants hailed from China, Sri Lanka, Bangladesh, Cambodia, Indonesia, Philippines, Myanmar, Malaysia, Vanuatu, Kiribati, Fiji, Papua New Guinea, Tonga, Timor Leste, Djibouti, Nigeria, Tanzania, Oman, and Singapore.

Courses & Workshops

Maritime Security Cooperation Workshop, Sydney


Courses & Workshops

Law of Peace Operations CourseDate: 19 – 23 March 2018 Loc: Victoria Barracks, Sydney


COURSE DESCRIPTION

Modern peace operations are increasingly complex and multidimensional. Thus a sound understanding of the legal frameworks that underpin and frame them is crucial – not only for those deployed as uniformed or civilian personnel on peace operations, but also for legal officers and policy makers involved in the planning and delivery of these missions around the world.

The APCML Law of Peace Operations Course explored the legal issues relevant to the creation and conduct of peace operations. The program was designed to build on the foundations of the relevant international legal frameworks and work through key legal considerations such as: Formation of UN Peace Ops; International Human Rights Law; the Law of Armed Conflict; Rule of Law and Use of Force on Peace Ops; Rules of Engagement; Command Responsibility and Accountability; Host and Contributing Nation law; Status of Forces and Status of Mission Agreements; and the law of Detention on Peace Ops. Specific issues were also addressed such as policing, the role of International Committee of the Red Cross and private security companies, and civil-military cooperation and coordination on peace operations.

The course was conducted over five days at Victoria Barracks in Sydney, Australia. The program was structured around a series of core learning modules and complemented by examination of case studies, group work and an extended scenario exercise. The curriculum was designed to provide the flexibility for participants to contribute their own experiences and shape discussions through the more interactive sessions.


In 2018, the workshop was attended by 23 participants comprising 16 international delegates from seven countries (Japan, Fiji, Thailand, Indonesia, Jordan, Myanmar, and Malaysia).

Command and Staff Operations Law CourseFor the Law of Armed Conflict to be useful in times of war it must be understood during times of peace – and it must be understood by the commanders and troops who will be directly impacted by it, and enforcing it, on the ground.

The APCML Command and Staff Operations Law Course gave an accessible yet comprehensive introduction to the laws of war,

Law of Peace Operations Course, Sydney


the application of the law in an operational context and the ramifications of breaching the law. This is the APCML’s flagship course, and was delivered a record three times in 2018.

The objective of this two-week course was to raise the awareness of commanders and their staff about key operations law issues that impact on contemporary military operations. The course familiarized participants with the law applicable to the conduct of a wide spectrum of operations and with the planning tools that assist with mission success in compliance with the rule of law.


In 2018, two iterations of the course were delivered in the Philippines, by special request, and one in Australia.

Workshop with the Judge Advocate General ServiceDate: 17 – 18 May 2018

Loc: Manila, Philippines

Ranks: Capt (03) – Maj (04) (equiv)

The APCML Mobile Training Team conducted a legal workshop for the Judge Advocate General (JAG) Service lawyers over a period of two days in Manila and also met with The JAG (TJAG) Brig Gen Ser-me L. Ayuyao. This workshop was held ahead of the Command and Staff Operations Law Course which commenced the following week for operational commanders. It was wonderful to forge even closer relationships with the JAG officers and to hear the JAG Services are planning to embed their lawyers down to formation level in the not too distant future. The team was also told that both the workshop and CSOL continued to be relevant for the Armed Forces of the Philippines training on operations law and the rule of law.

Command and Staff Operations Law Course, PhilippinesDate: 21 – 31 May 2018

Loc: Manila, Philippines

Courses & Workshops

Command and Staff Operations Law Course, Philippines

Ranks: Maj (04) – LtCol (05) (equiv)

The course in May was held at the Armed Forces of the Philippines Education, Training and Doctrine Command at Camp Aguinaldo, Manila for the Command and General Staff College Class 63, and was attended by 221 participants comprising 211 members of the Armed Forces of the Philippines, and 10 International delegates from 5 other countries (Bangladesh, India, Malaysia, Indonesia, Korea). COL Arun Lambert, Ms Grace Corbiau, Associate Professor Rain Liivoja, LCDR Kent Browning, MAJ

Sharon Ackman and SQNLDR Anthony Erman comprised the Australian Mobile Training Team.

Command and Staff Operations Law Course, SydneyDate: 29 October – 09 November 2018 Loc: Victoria Barracks, Sydney


The Command and Staff Operations Law Course held 29 October–9 November 2018 was delivered at Victoria Barracks in Sydney, Australia. It was attended by 34 participants, comprising 30 International delegates from 20 countries, including one representative from the Australian Red Cross, three ADF members and one representative from the Department of Foreign Affairs and Trade. International participants came from the following countries: Bangladesh, Sri Lanka, Pakistan, Thailand, Philippines, Vietnam, Indonesia, Malaysia, Singapore, China, Japan, Ukraine, Qatar, Lebanon, Jordan, Fiji, Timor Leste, Federates States of Micronesia, and Samoa.

Command and Staff Operations Law Course, PhilippinesDate: 12 – 16 Nov 2018

Loc: Manila, Philippines Rank: LtCol (05) (equiv)

This course was unforeseen in the APCML annual workplan, but came about through a special request by the Armed Forces of the Philippines, who recognised a specific training need for Lieutenant Colonels (and equivalent ranks) with regard to operations

Courses & Workshops

Command and Staff Operations Law Course, Sydney


law, human rights law, and the law of armed conflict. As such, an APCML Mobile Training consisting of COL Arun Lambert, Ms Grace Corbiau, COL Lachlan Mead, SQNLDR Anthony Erman and LCDR Luke Andrews travelled to Manila in November 2018 to deliver an abridged version of the Command and Staff Operations Law Course to Class 64 of the Command and General Staff College in Manila. The course was attended by 60 members of the Armed Forces of the Philippines.

Rules of Engagement WorkshopDate: 02 – 06 July 2018

Loc: Victoria Barracks, Sydney


Increasing political control over the use of force and the rules of engagement (ROE) used to regulate the conduct of armed forces by individual nations, and alliances and coalitions around the world have created a need to train in and understand the development of effective and appropriate rules of engagement.

The ROE workshop was delivered by the APCML instructing staff based on the Sanremo ROE handbook, developed by the International Institute of International Law, Sanremo. The workshop was designed as an advanced session that provides participants with a sound understanding of the ROE process, the ability to use the Sanremo ROE handbook and to draft ROE for a wide range of military operations.

The workshop was conducted over five days at Victoria Barracks in Sydney, Australia. In addition to core modules, the program included briefings on lessons-learned by military officers and legal advisors who have been involved in the drafting and implementation of ROE for national and multinational operations in the land, maritime, and air environments. It also included ROE case studies and syndicate exercises in order to explore contemporary ROE and ROE-related issues.

The workshop was also designed to promote engagement and interaction between military personnel from across the Asia Pacific region and to build greater understanding and commonality in the application of international law to military operations.

In 2018, the workshop was attended by 32 participants comprising 28 International delegates from 15 countries, 3 ADF members, and one Defence APS member. International participants hailed from: New Zealand, Fiji, Pakistan, Indonesia, Brunei, Bangladesh, Papua New Guinea, Thailand, China, Philippines, Jordan, Sri Lanka, Lebanon, Tuvalu, and Malaysia.

Courses & Workshops

Maritime Operations Law Course, Sydney

Maritime Security Cooperation WorkshopDate: 10 – 14 September 2018 Loc: Victoria Barracks, Sydney


The Maritime Security Cooperation Workshop was held from 10 to 14 September 2018. The workshop was designed as an intermediate level workshop for regional military and maritime law enforcement officers, providing a forum to consider current law of the sea and maritime law enforcement issues, developments regarding naval warfare, and the application of legal principles to maritime operations. The workshop was intended to be a higher level course to complement the APCML’s Maritime Operations Law Course (MOLC), pitched at an introductory level. Both MOLC and MSCW promoted regional engagement through an interactive learning program and associated networking opportunities.

The program was structured around a series of core learning modules taught by highly qualified instructors, and complemented by syndicate exercises and examination of case studies designed to illuminate and consolidate the issues raised during instructors’ presentations. In addition to the Australian Directing Staff, there were four instructional staff from the United States (US Coast Guard, and the US Defense Institute of International Legal Studies).

The course was conducted over five days at Victoria Barracks in Sydney, Australia. Topics included, but were not limited to: maritime security operations; international law and the use of force; freedom of navigation; rules of engagement; maritime environmental law and resource protection; and multinational operations and interoperability.


The course was workshop was attended by 19 participants, comprising 18 International delegates from 10 countries, from both the military and law enforcement, and one Defence APS member. International participants came from China, Sri Lanka, Indonesia, Malaysia, Philippines, Jordan, Egypt, Solomon Islands, Fiji, and the Federated States of Micronesia.

Cyber Law and Other Emerging Technology WorkshopDate: 08 – 12 October 2018 Loc: Victoria Barracks, Sydney

Ranks: Capt (03) – Col (06) (equiv) and APS 5 – EL2 or equivalent

Director Professor Bruce Oswald, Command and Staff Operations Law Course, Sydney


Participants at the Cyber Law and Other Emerging Technology Workshop, Sydney

The Cyber Law and other Emerging Technologies Workshop was an unclassified, foundational level course intended to expose military officers to the strategic, legal and operational considerations associated with cyber conflict, computer network operations and emerging technology (eg, armed unmanned vehicles, autonomous weapons, and space assets). The course focused on the impact of new technologies on the legal landscape, and how the law (particularly the law of armed conflict) may be applied to military operations in cyberspace, ranging from cyber espionage to cyber warfare. The Tallinn Manual on the International Law applicable to Cyber Operations was used as the key reference for the workshop, and participants were fortunate to have the likes of Professor Sean Watts, a Senior Fellow at the NATO Collective Cyber Defense Center of Excellence, who was one of the drafters of the Tallinn Manual as one of the course instructors.

Specific topics covered during the workshop included: the international legal environment for cyber and space operations; an overview of computer network operations, including issues relating to the use of force and armed attack; the application of the law of armed conflict to actors (state and non-state) and military activities in cyberspace; the challenge of state responsibility in cyberspace; the purpose and objectives of the National Cyber Strategy; weapons law and the evaluation of new weapons under Article 36 of Additional Protocol I; developments in weapon technology, including unmanned and autonomous weapon systems, and associated legal issues; and an overview of the societal and ethical implications of advancements in technology.

In 2018, the workshop was attended by 42 participants comprising 30 International delegates from 20 countries, three ADF members, and one Defence APS member. The international participants came from: Bangladesh, Sri Lanka, Thailand, Brunei, Philippines, Vietnam, Indonesia, Malaysia, China, Japan, Ukraine, Saudi Arabia, United Arab Emirates, Lebanon, Jordan, Fiji, Tuvalu, and the United States.

Courses & Workshops

University Node

Asia Pacific Centre for Military LawUniversity of MelbourneMelbourne Law SchoolThe University of MelbourneVIC 3010 Australia

Tel: +61 3 8344 4775Email: [email protected]: www.apcml.org

Military Node

Asia Pacific Centre for Military LawBuilding 113Victoria BarracksOxford StreetPaddington NSW 2021 Australia

Tel: +61 2 8335 5626Fax: +61 2 8335 5634Email: [email protected]: www.apcml.org

Department of Defence Annual Report 2018...The Military Node welcomed a new Business Manager in July...

Documents

Transcript of Department of Defence Annual Report 2018...The Military Node welcomed a new Business Manager in July...