备战打仗中的国际人道法规则运用

国际人道法的基本原则之一是区分对待战斗员和平民,以便在武装冲突中有效地对战争受难者进行保护,平衡"军事必要"与"人道需求"这一矛盾。从实践经验上看,我军在战争中往往守法做的比较好,而在对付敌人违法作战方面准备不足。在未来军事斗争中应利用国际人道法的相关知识,做到既严格遵守又灵活运用。具体做法包括:将遵守国际人道规则列入部队训练和演习内容;运用国际人道法合理进行目标选择与打击;做到正确、灵活地对待和使用保护性标志;灵活处置国际人道法的守势反用等。     

试析人道主义干涉的条件与方式

尽管存在＂最低限度的一致＂,然而关于人道主义干涉的实在国际法存在明显缺陷,需要在自然国际法的语境中来考虑这一问题,并借助自然国际法来解释、指导与转化有关的实在国际法制度。人道主义干涉的条件是非常严格的,只有达到违反强行法的程度且在不与具有更高效力的其他强行法规则相冲突的情况下才能够进行。如果单方面的人道主义干涉符合有关的条件（强行法）并且是基于情势的严重性、危急性和紧迫性而实施的话,则可以采取武力方式。     

Codes of professional conduct for Australian Defence Force military physicians: evenomating the serpent?

The scandal of health professionals' involvement in recent human rights abuses in United States military detention centres has prompted concern that Australian military physicians should be well protected against similar pressures to participate in harsh interrogations. A framework of military health ethics has been proposed. Would a code of professional conduct be a partial solution? This article examines the utility of professional codes: can they transform unethical behaviour or are they only of value to those who already behave ethically? How should such codes be designed, what support mechanisms should be in place and how should complaints be managed? A key recommendation is that codes of professional conduct should be accompanied by publicly transparent procedures for the investigation of serious infractions and appropriate disciplinary action when proven. The training of military physicians should also aim to develop a sound understanding of both humanitarian and human rights law. At present, both civil and military education of physicians generally lacks any component of human rights law. The Australian Defence Force (ADF) seems well placed to add codes of professional conduct to its existing ethical framework because of strong support at the highest executive levels.     

在国内武装冲突中履行“保护的责任”的规范依据及其适用

“保护的责任”要求主权国家保护其人民免遭灭绝种族、战争罪、族裔清洗和危害人类罪之害,以及在其他各种情形下承担人权保护责任,当一国不能或不愿履行这一责任时,国际社会将有责任介入并采取相应的保护行动。在国内武装冲突中,容易发生对平民的生命财产以及民用设施的侵害,但是,主权国家应当怎样实施军事行动等行为才能符合人权保护责任的要求,对此,“保护的责任”本身并没有提供明确具体的标准和依据。为防止评估确认上的主观随意性,避免“保护的责任”被滥用成为干涉他国内政的工具,国际社会应当以国际人权法与国际人道法为基本依据,并主要通过对人道法规范在具体情势下的解释适用,来评估确认政府军事行动是否符合人权保护责任上的特定要求,以及是否构成不能或不愿履行“保护的责任”的严重情形,从而确定国际社会是否应当介入以及应采取的适当措施与方式。     

Following Historical Precedent: An Argument for the Continued Use of Military Professionals as Triers of Fact in Some Humanitarian Law Tribunals

The military commissions at Guantánamo Bay have properlybeen the subject of much legal scrutiny and criticism. Theiruse of military officers as triers of fact, however, meritsfurther consideration. Salim Hamdan may have benefited fromhaving military officers decide his case. His panel was composedof highly educated military professionals who have dedicatedtheir lives in service of the law. Despite their enmity towardsthe accused, these officers were actually in a better positionto be sympathetic and understanding to the Hamdan defence thana civilian jury. The unique aspects of military service andcombat experience will also make them excellent partners withprofessional jurists in future humanitarian law tribunals.     

Negotiating the Draft Comprehensive Convention on International Terrorism: Major Bones of Contention

Negotiating a Comprehensive Convention on International Terrorismhas been a long and intense process. The legal regime to becreated by this instrument has significant legal and politicalconsequences. The main issues, which would frame such consequences,are how to define the crime and decide the scope of applicationof such a Convention. These have proven to be problematic, asnegotiators have revisited issues that have been a source ofdebate for years, even centuries. Who has the right to participatein an armed conflict without being described as a terroristby the Convention? To what extent do we allow the overlap betweeninternational humanitarian law and the Convention's law, ifany? Do military forces have the right to be outside the scopeof the Convention even in peace time? These are the main questionsthat the negotiators have been trying to answer in order toreach a compromise that will satisfy all parties. If genuinepolitical will exists to conclude the Comprehensive Convention,there is no absence of legal answers that can guarantee an effectivelaw enforcement instrument against international terrorism,without infringing on legal rights and positions under internationallaw.     

A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya

The cases on Chechnya recently decided by the European Courtof Human Rights force us to re-evaluate the relationship betweenhuman rights law and humanitarian law. Since the InternationalCourt of Justice held that humanitarian law is lex specialisto human rights law in 1996 – if not since the TehranConference of 1968 – it has been widely accepted that‘human rights in armed conflict’ refers to humanitarianlaw. The ECtHR has directly applied human rights law to theconduct of hostilities in internal armed conflicts. The rulesit has applied may prove controversial, but humanitarian law’slimited substantive scope and poor record of achieving compliancein internal armed conflicts suggest the importance of this newapproach.     

The International Law of Naval Blockade and Israel’s Interception of the Mavi Marmara

In this article I discuss the legality of Israel’s interception of the Mavi Marmara on 31 May 2010. Although Israel’s stopping, boarding and inspection of the Mavi whilst on the high seas would undoubtedly constitute a violation of the law of the sea during peace time, I examine whether this violation can be justified on the basis of international humanitarian law. Specifically, Israel asserts that it was enforcing a naval blockade. I examine the legality of this blockade. I suggest that the blockade was unlawful on the basis that customary international humanitarian law permits the use of naval blockades only in times of an international armed conflict. I argue that on 31 May 2010 Israel was not engaged in an international armed conflict with Hamas. Moreover, I submit that customary international law prohibits the use of blockades where they are intended to deny the civilian population objects essential for its survival or where the damage to the civilian population is excessive in relation to the anticipated military advantage. Israel argues that the intention of the blockade was to prevent war material from being delivered to Hamas fighters. This notwithstanding, I argue that because this blockade was causing a severe humanitarian crisis in Gaza on 31 May 2010, it was incompatible with customary international law and therefore unlawful. Furthermore, even if the deployment of the blockade could be considered lawful, I argue that the enforcement of the blockade was unlawful because Israel’s use of force to capture the vessel went beyond what was necessary in the circumstances.

     

Psychiatric Darwinism = survival of the fittest + extinction of the unfit

This article is a critical analysis of the American Health Security Act of 1993. Although AHSA was soundly defeated when first proposed, parts of it have been enacted into law in 1996, with the prospect of further piece-meal enactments in the future. It includes matters of fundamental importance to American mental health practitioners, to vulnerable citizens with psychiatric disorders, to their families, and to their few champions in medicine and law. Utilitarianism is the unstated philosophical substructure of AHSA and its legislative progeny, i.e., whatever cuts medical costs and saves money is good. The author delineates AHSA's mental health entitlements and limitations of in-patient, out-patient, and other patient care. She enumerates a dozen major imperfections and dangers of this mental health law, especially its medical utilitarianism emphasizing outcomes and quality of life. Dr. Cosman argues that medical cost, outcome, quality of life, and managed competition threaten the essential liberties and the lives of older persons, persons who are chronically ill, fatally ill, and most particularly those who are mentally impaired. She concludes that if limited money, medicine and time are invested only in inevitable medical success, then America's medicine by its medical law will be Medical Darwinism encouraging survival of the fittest by requiring extinction of the unfit.     

In Defense of the Responsibility to Protect: A Response to Weissman

This article defends the Responsibility to Protect (R2P) doctrine (adopted by the United Nations in 2005) against critiques by Fabrice Weissman in this journal, and against similar criticisms of humanitarian intervention and human rights norms made by postmodern thinkers in the Nietzschean tradition, such as Alain Badiou and Anne Orford. I argue against Weissman that R2P can be effective in stopping or preventing mass atrocities, and in particular that opposition to military intervention in Syria during the 2013 debates was a terrible mistake. Moreover, the moral ground for humanitarian aid efforts is the same as the basis for forceful rescue from mass slaughter, ethnic cleansing, and persecution (when other conditions of just war can be met). Weissman's critiques misinterpret just war theory on key points and rely on inflated rhetorical strategies inspired by extreme forms of cultural and moral relativism that are intellectually bankrupt—both in blaming “Western imperialism” for most crimes against humanity committed by tyrants, and in leaving hundreds of thousands without the only protection that could prevent their murder and exile. These extreme positions and the strained rhetorical devices used to defend them do not deserve the wide respect they command in some parts of academia.     

从使用武力法看保护的责任理论

保护的责任是21世纪初国际上出现的新理论。将该理论中的军事干涉因素与《联合国宪章》关于使用武力的规定进行比较,观察近10年来国际社会的有关实践,可以认为该理论并未在国际法上改变现行的使用武力法规则,国际社会对该理论中军事干涉问题并未形成共识。现阶段对以军事手段实施保护责任应持谨慎态度。     

Rethinking Guantanamo: Unlawful Confinement as Applied in International Criminal Law

Although criticism of US-led detention at GuantánamoBay has been extensive, little attention has been placed onevaluating the implications of international humanitarian lawstandards as applied in international criminal law. This paperconcludes that there is a striking resemblance between allegationsmade of Guantánamo and many of the scenarios that havegiven rise to individual criminal responsibility for unlawfulconfinement as a grave breach of the Geneva Conventions in othercontexts. In this regard, arguments that individuals who donot enjoy prisoner-of-war status fall into a legal vacuum orthat international humanitarian law has somehow been renderedobsolete by the ‘War on Terror’ ignore the factthat international criminal precedents unambiguously disagree.If nothing else, an analysis of international criminal law'streatment of unlawful confinement highlights the urgent needto rethink the legal basis for detention at Guantánamoand the risks of individual criminal responsibility for purportingto develop international humanitarian law through unilateralchanges in policy rather than formal international law-makingprocesses.     

Queensland general practitioners' applications of the "mature minor" principle: the role of patient age and gender

Most Australian jurisdictions do not have legislation that stipulates an age by which a minor can make their own medical treatment decisions. Instead, they rely on Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, an English common law decision that recommends individual assessments of "maturity". This study explores how medical practitioners in the State of Queensland understand and apply this legal authority when faced with a young person wishing to make a contentious medical treatment decision. Almost 200 doctors made decisions about a hypothetical patient's competence and confidentiality, and detailed their reasoning in an open-ended format. The data indicate that the vagaries of existing legal criteria allow for a range of philosophical perspectives and idiosyncratic heuristics to play a role in assessment practices, and that particular combinations of patient age and gender made these cognitive shortcuts more likely to occur. A notable proportion of such processes are not consistent with legal guidelines, and this has implications for general practitioners' vulnerability to litigation as well as young patients' treatment trajectories.     

The UN Commission of Inquiry on Lebanon: A Legal Appraisal

In the wake of the Second Lebanon conflict, the UN Human RightsCouncil established an independent body of experts to investigatealleged violations of international humanitarian law (IHL) perpetratedby Israeli forces. The Commission's report suffers from oneserious and conspicuous flaw — the Commission was notcharged with simultaneously considering Hezbollah's violationsof the same body of law. In some instances, this one-sided focuswas not only politically unbalanced, but substantively inadequatesince a full understanding of Hezbollah's command structure,strategic objectives and military operations was essential indetermining whether targets destroyed by Israel were legitimatemilitary objectives and whether consequences for civilians weredisproportionate to the military advantage gained. Be that asit may, the Commission's final report testified to the excessive,indiscriminate and disproportionate use of force by Israeliforces and an overall lack of respect for the cardinal principlesregulating the conduct of armed conflict. The Commission's findingsare particularly disquieting, given the independent nature ofthe investigation and, ultimately, the compatibility of muchof the Commission's legal reasoning with orthodox interpretationsof IHL. The legal issues raised by the Inquiry are thereforeof ongoing importance, most notably for the Israeli-appointedWinograd Committee.     

The health of health practitioners: remedial programs, regulation and the spectre of the law

The past two decades have seen an emerging awareness by regulators and some of the health professions about the phenomenon of the impaired practitioner. One response, particularly from the medical profession, has been to design various models of health programs principally to cater to psychiatrically unwell and substance dependent practitioners. However, the health conditions of practitioners are more diverse than these categories, particularly in the era of a stressed and ageing health care workforce. The potential exists for practitioners, their treaters and employers to be legally liable for foreseeable risks posed to patients and clients by practitioners whose health is problematic and/or deteriorating. There is much to be said for practitioners, health service administrators, educators and regulators dealing more effectively with all categories of impaired practitioners before the intervention of the civil law which may not be adequately informed or sophisticated and is most unlikely to be collaborative in its approach.     

Gynaecological cytopathology and the search for perfection: civil liability and regulatory ramifications

The article analyses the potential for false negative and false positive results from Pap smear testing by gynaecological cytopathology laboratories. It also reviews case law in relation to the liability of general practitioners, gynaecologists, cytoscreeners and pathologists in respect of cervical cancer diagnoses. It argues that the concerns expressed in the 1990s about unfair findings of liability against cervical screeners have not been borne out, liability only having been found by the courts where culpable failure to adhere to the standards to be expected of professional behaviour has been established by probative evidence. It argues that the challenge for the future is for cytology screening to articulate definitively where the distinctions lie between acceptable and unacceptable error and for the medical profession and the legal profession to accommodate to the limitations of gynaecological cytopathology.     

General practitioners' competence and confidentiality determinations with a minor who requests the oral contraceptive pill

The right of minors to make medical treatment decisions is an issue that is not explicitly addressed in the legislation of most Australian jurisdictions. While recent common law decisions allow competent minors to consent to treatment, current legislation in Victoria does not provide adequate guidelines on how competence is to be measured. It is also unclear whether the duty of confidentiality is extended to competent minors. The current study explored general practitioners' competence and confidentiality decisions with a hypothetical 14-year-old patient who requests the oral contraceptive pill (OCP). Questionnaires were sent to 1,000 Victorian general practitioners, 305 of whom responded. General practitioners were asked to determine whether "Liz" was competent to request the OCP, and whether they would maintain her confidentiality. A total of 81% of respondents found the patient competent, while 91% would have maintained her confidentiality. Results indicate that the majority of general practitioners used rationales that generally did not conform to current legal principles when making competence and confidentiality determinations regarding this patient.     

The doctrine of informed consent: a tale of two cultures and two legal traditions

In this article, the author compares and contrasts the notion of informed consent in medical decision making in the Western legal system with the traditional Jewish biblical legal system. Walter critically examines the philosophical underpinnings of disease and medical healing in both legal systems, and describes the practical consequences that emanate from the different ideologies in terms of the individual's rights of choice of treatment. She explains that the Western system is predicated on notions of individual autonomy and self determination. Patients therefore have the autonomous ability to select and direct their own medical therapy. By contrast, the traditional biblical system of law is based on the concept that the body does not belong to the individual. Instead, the body is given to man by God as a trust to respect and preserve. Therefore, the individual patients "has no absolute right to control his body and ... he has no real decision making power as to medical treatment choices." In the Jewish biblical tradition, consent is not necessary for obviously beneficial or obviously non-beneficial procedures; consent is only necessary in decisions with uncertain outcomes or when making choices between equal options. Patients are encouraged to seek the counsel of religious authorities and to conform to rabbinical interpretations of the traditional Jewish law.     

Legal pragmatism and the pre-birth continuum: an absence of unifying principle

The common law has historically been clear - the rights of the unborn do not exist prior to birth. A child becomes a legal person and able to enforce legal rights upon being born alive and having a separate existence from her or his mother. This article assesses whether new developments in biomedical technologies have left this legal principle inviolate and explores what the state of law is in relation to pre-birth. It argues that there is a pre-birth continuum where the law punctuates points in a lineal timeline fashion as to when a pre-birth "non-entity" becomes a legal entity. The article concludes that there is no singular rule of law with respect to being or becoming a human but rather a collection of discrete and increasingly divergent legal categories. This recognition of a pre-birth continuum or timeline as to the legal recognition of this "non-entity" has significant ramifications for the future development of law and impacts on legal thinking about what it means to be human.     

United Kingdom Military Law: Autonomy, Civilianisation, Juridification

This paper argues that military law has undergone a long-term process of change. Previously an autonomous legal system with little civilian input at the administrative, judicial and policy-making levels, military law became subject to a consensual policy of civilianisation from the early 1960s, reflected primarily in the adoption of civilian criminal law norms by the military justice system. More recently there has emerged the juridification of significant areas of military relations in respect to discipline and certain other terms of service which hitherto have not been subject to externally imposed legal regulation. Explanations for the shifts from autonomy, through civilianisation, and then to juridification, ranging from political and social developments to new human rights and equal opportunities discourses, are offered for such changes.