Responsibility for Collective Atrocities: Fair Labelling and Approaches to Commission in International Criminal Law

(2011) Current Legal Problems 1-32

A major theoretical challenge for international criminal law is how to account for and adequately label the responsibility of the highest ranking leaders, often far removed from actual killings carried out through an organization or movement. This challenge is also coupled with a problem of labelling. We commonly distinguish between the person who directly committed a crime (the perpetrator/principal) and a person who assisted in the commission of the crime less directly (an accessory). On this approach leaders may seem ‘mere’ accessories. Nonetheless, given the perceived truth-telling function of international criminal trials, judges seemingly feel compelled to label leaders as direct perpetrators who have committed the crime itself and not as accessories who have ordered or incited or failed to prevent it. This requires an expanded concept of commission, a project that immediately raises questions of theory, black letter scholarship and fairness. Once we uncouple commission from the direct physical perpetrator, where do the boundaries of commission fall? A too diffuse theory of commission may inappropriately stigmatize ‘small fish’, labelling them as being equally as culpable as high-ranking leaders. This article critically reviews the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) on commission in collective responsibility cases. The conclusion reached is that the preferable view is that leaders are accessories who can nonetheless be more culpable than principals, because they are aggregators of responsibility. What we need are not new tools, but different ways of understanding existing concepts.

The Mavi Marmara incident and blockade in armed conflict

(2011) British Year Book of International Law - advance access via website

This article examines Israel's enforcement of a maritime blockade against the Gaza Strip implemented in the course of an ‘armed conflict’ with Hamas. The first question is the legal characterisation of this conflict and whether it is one to which the laws of naval warfare apply. The conclusion of this article is that, irrespective of the status of the Gaza Strip as an occupied territory, at the relevant time Israel was at best involved in a non-international armed conflict (NIAC) with Hamas. There is only limited support for the proposition that blockade is available in NIACs, and then only in conflicts reaching a high level of intensity. On this basis, Israel had no applicable right of blockade.

In the alternative, the article considers the requirements of lawful blockade and concludes they were not met in the present case. The central issue is proportionality. The maritime blockade was part of a comprehensive closure regime that had disproportionate effects on the civilian population of Gaza. A maritime blockade in support of other measures causing disproportionate damage must itself be disproportionate. In the further alternative, the article assesses whether Israel could have justified its actions on the basis of other belligerent rights.

Finally, the article considers the law governing the use of force during maritime interdiction operations under the laws of naval warfare. It concludes that a ‘policing’ paradigm of force is applicable. The law of individual self-defence and war crimes is also considered.

Counter-Piracy Law Enforcement and Human Rights

(2010) 59 International and Comparative Law Quarterly 141-169

Click on the title for access to a full text pdf. I gratefully acknowledge the permission of the copyright holders, Cambridge University Press and the British Institute of International and Comparative Law.

Treaty Jurisdiction over Pirates: A Compilation of Legal Texts with Introductory Notes

Produced for Working Group 2 on Legal Issues, the Contact Group on Piracy off the Coast of Somalia

I was asked by the Danish Ministry of Foreign Affairs to produce a compilation of relevant international legal texts providing jurisdictional bases for the prosecution of suspected pirates. This work was commissioned to facilitate a common understanding of relevant legal provisions in Working Group 2 of the Contact Group on Piracy off Somalia.

My task included writing a series of brief introductions to the various legal texts, which were to point to and discuss specific unclear issues of relevant international law.

‘Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts’

(2008) 57 International and Comparative Law Quarterly 690-699

‘Interdicting vessels to enforce the common interest: maritime countermeasures and the use of force on the high seas’

(2007) 56 International and Comparative Law Quarterly 69-82

‘Maritime interdiction of weapons of mass destruction’

(2007) 12 Journal of Conflict and Security Law 1-36

“Trying Cain: International War Crimes, Due Process and Collective Evil”

Presented  at the conference "War Crimes: Retrospectives and Prospects", Institute of Advanced Legal Studies, University of London, 19 February – 21 February 2009.

“Criminalising globalisation from below: International law and unequal development”

Presented at the International Association for Studies in Forced Migration conference, Cairo, 6-10 January 2008.

Nulyarimma v. Thompson: Is Genocide a Crime at Common Law In Australia

[2001] Federal Law Review 1

While treaties only have effect in Australia if enacted by statute, the position of customary international law is uncertain. Historically the common law has automatically included recognised customary rules, subject to the qualification that they are not inconsistent with statute law or "a skeletal principle" of the common law (known as the "incorporation doctrine"). If this principle were recognised, genocide could be a common law crime. The most powerful objections to a common law crime of genocide are that: it is inconsistent with the codification of criminal law in Australia, particularly the Criminal Code 1995 (Cth); or it is inconsistent with the principle that the courts may no longer create crimes. However, statutes are to be construed, where possible, consistently with Australia's international obligations and it is possible to find a reading of the Code that is consistent with Australia's obligation to provide for the punishment of genocide. There is also an important difference between the courts creating a new crime and incorporating an existing crime of customary international law.

Proliferation Security Initiative: Interdicting Vessels In International Waters to Prevent the Spread of Weapons of Mass Destruction, The

Piracy Off Somalia: A Sketch of the Legal Framework

Piracy Off Somalia and the Gap Between International Law and National Legal Systems

The Contact Group on Piracy off the Coast of Somalia: New Governance or Old?

The Laws of War and the Fight against Somali Piracy: Combatants or Criminals?