Iraq and the case for Australian war crimes trials

This article presents the case for Australian war crimes trials, following Australian participation in the invasion of Iraq and the subsequent deaths of as many as a million Iraqi civilians. It focuses on jus in bello (war crimes) rather than jus ad bellum (just war). The article sets out the argument and rationale that Australian war crimes trials are needed. Having established the necessity, the article identifies two of the principal alleged atrocities for which Australian officials should be held criminally accountable. It details Australian military support for the use of cluster bombs against civilians during the 2003 invasion, and senior Australian military commanders’ responsibility for planning and carrying out multiple purported war crimes during the attack on Fallujah in late 2004. The article recognises that, in order for Australian officials to be prosecuted under the International Criminal Court (ICC), all domestic remedies must be first exhausted. It therefore specifically addresses which Australian laws can be used, with particular emphasis on anti-terrorist legislation passed in 2002 under the Howard Government and the introduction into Australia’s domestic federal criminal legislation offences equivalent to the ICC Statute offences of genocide, crimes against humanity and war crimes. These provide the most applicable legal tools for prosecuting senior Australian officials for war crimes in Iraq.     

<Emphasis Type="Italic">The Lesser Evil Dilemma for</Emphasis> Sparing Civilians

The rule I call ‘Civilian Immunity’ – the rule that prohibits targeting civilians in war – is the heart of the accepted jus in bello code. It prohibits targeting (viz., intentionally killing) civilians in a wide variety of war circumstances. Seth Lazar's brilliant book, Sparing Civilians, attempts to defend Civilian Immunity. In this essay I show, first, that his ‘Risky-Killing based argument’ fails to provide civilians with the robust protection Sparing Civilians promises. I argue, secondly, that the moral framework that Sparing Civilians employs, a moral framework that centralizes the Deontological Clause (stating that one's intentional killing is worse than enabling others to kill), leaves the immunity of civilians against Leaders unexplained.     

Seeking Justice for the Holocaust: Herbert C. Pell Versus the US State Department

Herbert C. Pell served his nation as an Ambassador and member of the US House of Representatives, as well as US Representative on the United Nations War Crimes Commission (UNWCC). This article presents his struggle with the US State department and the bureaucratic and legalistic dispute that developed over the UNWCC particularly with respect to policy considerations surrounding whether or not to prosecute crimes against humanity committed by the Nazis in Germany and satellite territories. The article traces Pell’s initial difficulty engaging with the work of the UNWCC due to the State Department’s delaying techniques and the absence of clear instructions from either the State Department or the President. Moreover, it is shown how Pell struggled to convince the State Department and his fellow UNWCC members to include the above-mentioned crimes. This debate and Pell’s role has remained largely unknown to a public that considers the post-war Nuremberg war crimes trials an achievement in the advancement of international law and justice. To whatever extent those trials were such, particularly in advancing international human rights law by adjudicating Axis war criminals for crimes against humanity, it is singularly noteworthy that Axis war criminals might not have been prosecuted at all for these crimes were it not for the efforts of Herbert Pell.     

Sexual Offences in Vanuatu under the Light of Custom and Law: “An Avenue for Restorative Justice”

This paper will focus on the Republic of Vanuatu’s society and customs relevant to this topic. I will consider the laws made by the legislature to deal with sexual offences in Vanuatu and how they are being implemented or enforced. I will also discuss the different provisions under the law whereby accused persons have an option to actually compensate the victim of the offence and how it is being used in Vanuatu in relation to sexual offences. This paper will also look at how Vanuatu’s culture influences the prosecution or the sentencing of sexual offences or dealing with such crimes in the first place. This will reveal whether Vanuatu’s customary approaches to sexual offences actually support the state’s laws to punish such offenders and if a more fair and just process is needed where the voices of the offender as well as the victim are heard. Custom usually does not allow the victim to speak, and the victim’s parents and the elders of the community decide how the offender should be dealt with. Neither the formal court process nor the customary reconciliation process seem to take into account the wishes and interests of the victim and the offender. The flaws within the legal system and customary laws in addressing victims’ and offenders’ issues will be examined and an alternative process of restorative justice will be discussed.     

Assassination: Targeting Nuclear Scientists

Since 2007, five scientists involved in Iran’s nuclear program have been killed under mysterious circumstances. This is not the first time that nuclear scientists have come under direct attack. Scientists are legally civilians. Like the rest of us, they are protected by laws prohibiting murder and perfidious killing, and enjoy civilian immunity during wartime. Moreover, powerful moral arguments oppose assassination policies specifically. Nevertheless, contemporary theories of just war allow for the partial extension of combatant status to civilians who are either threatening or responsible for unjust threats. Weapons manufacturers, their factories and employees, are accorded less than absolute protection within just war theory, and even under international law. Dramatic events compel us to think through these issues of political violence in a principled manner, whatever our particular views on the Iranian case may be. The various moral arguments against assassination on the one hand and the complex status of munitions workers on the other suggest that scientists involved in weapons manufacturing may in some cases be morally liable to direct harm, as well as being legally liable to proportionate collateral damage.     

伊拉克战争涉及的国际法和国际刑法问题

战争行为是人类历史上最为残暴的行为之一,在国际犯罪种类中也属于最为严重的罪行之一。近代第一次和第二次世界大战的爆发,不仅没有达到战争发动者所欲追求的结果,反而进一步暴露了战争的残酷性,也发展了涉及战争行为的国际法律文件。1949年的四个《日内瓦公约》及两个《附加议定书》确立了战争行为采用的规章和规则,并进一步确认了战争罪行违反国际人道主义法和习惯国际法的基本模式。因此战争,尤其是国际性的伊拉克战争不可避免地涉及国际法和国际刑法的问题。     

Dignity, Harm, and Hate Speech

This paper examines two recent contributions to the hate speech literature – by Steven Heyman and Jeremy Waldron – which seek a justification for the legal restriction of hate speech in an account of the way that hate speech infringes against people’s dignity. These analyses look beyond the first-order hurts and disadvantages suffered by the immediate targets of hate speech, and consider the prospect of hate speech sustaining complex social structures whose wide-scale operations lower the social status of members of targeted groups. In Heyman’s and Waldron’s accounts we find plausible insights into the nature of identity-based social hierarchies, and the harms that redound to subordinated people under the operations of such hierarchies. I argue, however, that both analyses are unsuccessful as justifications for the restriction of hate speech, because they do not ultimately provide reason to think that hate speech is responsible for creating or sustaining identity-based social hierarchies.     

企业社会责任的宪法精神解读

宪法总纲确立了国家经济的基本制度,并同时规定,国家加强经济立法,完善宏观控制,依法禁止任何组织或者个人扰乱社会经济秩序。企业作为法律的承担者,必须在法律层面上把法律意识与社会责任意识进行有机结合。弘扬宪法精神的“以德治企”,根本目的是形成“以德治人心,以德治产品,以德治市场,以德治利益”的企业治理机制。弘扬宪法精神,构建和谐社会,企业是关键。企业追求自身利益与履行社会责任的统一,是社会发展对企业的基本要求,也是“以人为本”的宪法精神在市场经济下的最新体现。     

Human Rights as a Security Threat: Lawfare and the Campaign against Human Rights NGOs

In this article, I show how the term lawfare is being deployed as a speech act in order to encode the field of human rights as a national security threat. The objective, I claim, is to hinder the work of human rights organizations that produce and disseminate knowledge about social wrongs perpetrated by military personnel and government officials, particularly evidence of acts emanating from the global war on terrorism—such as torture and extrajudicial executions—that constitute war crimes and can be presented in courts that exercise universal jurisdiction. Using Israel as a case study, I investigate the local and global dimensions of the securitization processes, focusing on how different securitizing actors—academics, nongovernmental organizations, think tanks, policy makers, and legislators—mobilize the media, shape public opinion, lobby legislators and policy makers, introduce new laws, and pressure donors to pave the way for a form of exceptional intervention to limit the scope of human rights work.     

Proportionality, Territorial Occupation, and Enabled Terrorism

Some collateral harms affecting enemy civilians during a war are agentially mediated – for example, the US-led invasion of Iraq in 2003 sparked an insurgency which killed thousands of Iraqi civilians. I call these ‘collaterally enabled harms.’ Intuitively, we ought to discount the weight that these harms receive in the ‘costs’ column of our ad bellum proportionality calculation. But I argue that an occupying military force with de facto political authority has a special obligation to provide minimal protection to the civilian population. As a result, when an occupying military force collaterally enables a harm affecting the civilian population, the weight that the harm ought to receive in the ad bellum proportionality calculation is unaffected by the fact that the harm is agentially mediated – it ought to be weighed at least as heavily as those harms that the occupying force collaterally commits directly. As a result, satisfying the ad bellum proportionality constraint in wars of territorial occupation is more difficult than it has been thought.     

Boundary Work: Transcendence and Authoriality in Religious and Secular Law

The semiotic investigation of the divine or transcendent authoriality of religious law involves, in the context of discussions concerning the propriety or impropriety of the influence of religion in “secular” political and legal systems, preliminary boundary work to discern the meanings of “religion”, “secular”, and “belief.” Jeremy Waldron’s account of the propriety of religion in “secular” politics, mirroring but reversing John Rawls’ account of religion’s impropriety in that context, can be contrasted with neo-Calvinist (and other) conceptions of pluralism and the inevitability of fundamental “beliefs” in all political and legal thought. In the latter perspectives, religious believers are neither unique in their appeal to transcendent values, nor relegated to advancing theocracy (because pluralism is conceived as a religious value rather than religion’s opposite). A workable alternative to the conventional discourse of religious influence in politics and law is therefore evident.     

Authority,Self-Determination,and Community in Cosmopolitan War

This paper examines Cécile Fabre’s cosmopolitan reductionist approach to war. It makes three main points. First, I show that Fabre must ‘thin down’ justice’s content in order to justify the cosmopolitan claim that the same rights and duties bind people everywhere. Second, I investigate Fabre’s account of the values at stake in national sovereignty and territorial integrity. Can cosmopolitanism explain why it is permissible to fight in defense of one’s political community? I doubt it. I argue that Fabre’s reductionist approach cannot justify national self-defense in many cases. Finally, I explore the role that authoritative institutions play in specifying the rights and duties we have under cosmopolitan justice. I believe Fabre takes an overly simple view of the relationship between rights, duties, and authoritative institutions. A more complex account may leave less space for private war on the part of individuals than she does.     

Eliminative Killing and the Targeting of Noncombatants Comments on Seth Lazar’s <Emphasis Type="Italic">Sparing Civilians</Emphasis>

At the heart of Seth Lazar’s arguments in support of what he calls Moral Distinction – ‘In war, with rare exceptions, killing noncombatants is worse than killing combatants’ – is his treatment of eliminative and opportunistic killing. He adopts the standard line, that eliminative killing is easier to justify than opportunistic killing. And he acknowledges that there are various circumstances in which one might be able to justify killing noncombatants on eliminative grounds. Nonetheless, he relies on the notion of a mixed kind of agency to argue that intentionally killing civilians is normally ‘more opportunistic than intentionally killing soldiers’, and is therefore normally more wrongful. I argue that his argument in favor of this claim fails. If we distinguish objectively available reasons from subjectively motivating ones, and pay attention to the limited relevance of subjectively motivating reasons, then it becomes clear that mixed agency cannot do the sort of work for just war theory that Lazar wants it to do. This failure need not impugn other parts of his defense of Moral Distinction. But it takes the heart out of his defense of it, putting a greater burden on the other parts of his argument.     

Professor Waldron Goes to Washington

In Torture, Terror and Trade-Offs: Philosophy for the White House Jeremy Waldron asks how moral philosophy can illuminate real life political problems. He argues that moral philosophers should remind politicians of the importance of adhering to moral principle, and he also argues that some moral principles are absolute and exceptionless. Thus, he is very critical of those philosophers who, post 9/11, were willing to condone the use of torture. In this article I discuss and criticize Waldron’s absolutism. In particular, I claim that the arguments he offers in support of it are either dependent on religious conviction or support only rule utilitarianism, not absolutism. Additionally, I argue that the character of politics is such that it is both undesirable and morally irresponsible for politicians to adopt the absolutist approach favoured by Waldron. We have reason to be glad that Professor Waldron does not go to Washington.     

A Criticism of the International Harm Principle

According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that crimes against humanity are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of crime and criminal law, one based on the notion of accountability.     

战争与暴力:社会演进与马莱斯维奇的理论重构

当代犯罪学中少有专门以战争和有组织暴力为研究对象的著作,马莱斯维奇的理论研究让战争和有组织暴力研究重回犯罪学乃至社会科学的主流研究视阈。通过回溯被遗忘的19世纪末至20世纪初期传统社会科学的军事主义研究维度,独创性构建"经年累月的强制官僚化"和"离心式的意识形态化"相结合的研究范式,马莱斯维奇分析了现代性和有组织暴力的本体论之间的不协调,同时对战争与民族主义、社会分层、宣传之间的关系进行了全新解读,从而极富创造性地使我们得以洞悉战争、有组织暴力及其现代特别形态—恐怖主义犯罪的生成机理和运行机制,进而知道如何科学应对当代恐怖主义的挑战,最大限度地远离战争与暴力,珍爱并永久守护和平。     

UNWCC Policy on the Prosecution of Torture 1943–1948

This article provides a cursory overview of the development of torture as a war crime and/or a crime against humanity. While torture may at one time have been an accepted method of interrogation and punishment, matters changed in the late nineteenth century and early twentieth century. After presenting the approaches to torture common before World War II, the article focuses on the United Nations War Crimes Commission’s (UNWCC) internal debates on the crime, as well as it’s scrutiny of the national war crimes prosecution programmes of its members. As torture was, however, not at the core of UNWCC’s discussions, the author calls for further comparative research on the legacy of the UNWCC, particularly in the records of national authorities which were responsible for the prosecution of war crimes following World War II.     

Genocide, Justice and the Forensic Sensibilities of the International Committee of the Red Cross

The International Committee of the Red Cross (ICRC) is a privateorganization formed, in 1865, under the laws of Switzerland,with the aim of making wars more humane. In order to achievethis aim, the ICRC dedicated itself to the mission of givingsuccour to the victims of war, and of initiating the adoptionof humanitarian rules of conduct of armed conflicts. In theensuing years, the international community endorsed the workof the ICRC and recognized its roles accordingly. In the meantime,there was no international criminal justice system in placeto punish those who violated the international law of war. Morethan a century and a quarter after the birth of the ICRC, theUnited Nations initiated the creation of an international criminaljustice system, with the establishment of the InternationalCriminal Tribunals for the former Yugoslavia and for Rwanda,under the powers of the Security Council to maintain internationalpeace and security. The objective was to end impunity for thosewho would violate international law by committing genocide,crimes against humanity and war crimes. In a quite notable development,the ICRC registered in absolute terms its position to the effectthat neither it nor those who worked under its auspices maybe subjected to testimony before these International Tribunals.The bases offered for this assertion of absolute testimonialimmunity are the practical requirements of the work of the ICRC,as well as customary international law which is said to haverecognized such a rule. This paper disputes the ICRC's assertionof absolute testimonial immunity as correctly founded in lawor principle, although recognizing that the important work ofthe ICRC does fairly warrant a judicial reluctance to summonICRC into the witness box. Nevertheless, such reluctance mustbe invoked on a case-by-case basis, and is not a matter of substantiverule of law.     

NOT JUST “FOR THE THRILL OF IT”: AN INSTRUMENTALIST ELABORATION OF KATZ'S EXPLANATION OF SNEAKY THRILL PROPERTY CRIMES*

In his controversial challenge to criminologists, Jack Katz argues for a reexamination of situational factors that precipitate criminal acts, specifically those that concern crime's sensual dynamics. According to Katz, people's immediate social environment and experiences encourage offenders to construct crimes as sensually compelling. Although insightfil, I suggest that this thesis is limited, specifically as it applies to “sneaky thrill” property crime. Katz's emphasis on the enticements of theft, at the expense of other variables, negates a considerable body of research and leaves a theoretical hiatus that encourages explanations grounded in individual pathology. I suggest a revision of Katz 's approach that addresses these concerns. I test this reformulation with models of various stages of sneaky thrill theft. The results of this analysis affirm that the seduction of theft has an important instrumentalist component and is influenced by several background factors, namely, age, gender, and the strain associated with inadequate econ om ic opportunities.     

法律介入科研违规行为的障碍因素分析

由于严重的科研违规行为同样会带来严重的社会危害性,从而为法律介入科研违规行为提供了可能性。但法律介入科研违规行为的时间毕竟不长,目前还存在着许多障碍因素。这些障碍主要有:我国传统社会的“德主法辅”的观念仍在产生消极影响;科研活动的特点会导致立法的复杂性;我国刑法理论中的犯罪概念含混不清,给具体科研违规行为的定性带来了困难。