COURT of CONSCIENCE A SOCIAL JUSTICE JOURNAL • ISSUE 7, 2013 There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts. – Mahatma Gandhi
Conscience is a term of art and, as lawyers and students of law, our art is through words. Be them spoken, written or read, we dissect the English language with a rigour, detail and finesse unseen in other professions. We use words and expression to make an argument, to deconstruct an opponent and to stand up for justice. The essence of law lies in the interpretation of a word, the alignment of a phrase and the ability to articulate the needs and rights of the person being defended. It is through language that we make our voice heard; it is through language that we make a difference. EDITOR-IN-CHIEF Yet what use is a word without a good conscience, moral or ethic to uphold it? Law school is a time for establishing values, for learning about our place within the world and for Katerina Jovanovska applying rigour and critical thinking to the work we perform. It is about building confidence to trust our instincts and being bold enough to speak important truths. As we take a break from textbooks, lectures and essays, it is necessary to use our conscience to critique the EDITORIAL TEAM black letter, think beyond it and communicate our insights in the hope of awakening the Madeleine James conscience of others. Rohan Muscat Court of Conscience, now an ALSA award-winning journal, is an arena for thought, reflection and consideration of major issues and injustices in Australia and around the world. It is a Sharanya Srikanth forum to explore and challenge the preconceived ideas of ‘justice’, to share areas of interest and passion, and express opinions on unique and interesting topics. Congratulations to the Court of Conscience team, led by Katerina Jovanovska, for their excellent work in producing LEGAL RESEARCH TEAM this outstanding publication – undoubtedly one of the finest editions yet. Josh Beale In 2013, Court of Conscience is daring and unconventional. In the coming pages, we Leslie Phung invite you to read about the rights of tyrants in international law, sex worker reform and neo-imperialism in the Middle East. These articles advocate justice for voices often Miles Ma silenced. They are thought-provoking and enriching. As we seek to push the bounds of ‘justice’ and elevate ourselves into a higher ‘court of conscience’, we hope that you can enjoy the proceeding articles and are inspired, in turn, to respond positively to the Design & ILLUSTRATION demands of social justice. Niki Bañados, unless otherwise stated. www.niquary.com/design Jacqueline Fetchet Vice-President Social Justice
VICE-PRESIDENT, SOCIAL JUSTICE UNSW Law Society Jacqueline Fetchet
The role of the Social Justice Portfolio is to promote the social conscience of PRESIDENTS, UNSW LAW SOCIETY law students through education, advocacy and community INVOLVEment. We Nathan Huynh & Kara Grimsley encourage you to become involved with the activities, events and experiences we offer in order to engage and respond to pertinent issues of social justice. CONTENTS
Monique Dam & Ying Chin World Courts of Women: A transformative I welcome you to the seventh edition of Court of Conscience. victim-based approach to gender justice 5 Court of Conscience 2013 will see UNSW students and Faculty of Oliver Moore Law members grapple with legal, moral and ethical issues that 12 The rights of tyrants are thought provoking and demand our attention as students Prue Vines & Matthew Butt of the law. The beauty of this realm of our legal education is Running out of compensation money: that solutions to the issues identified within Court of Conscience whipping away the social security blanket? 17 can only come from discussion. Only through sparking debate Amber Karanikolas and meaningful discourse about the issues that need more Sex work, autonomy and the injustices than a mere application of law will the necessary creative and 20 of criminalisation conscionable solutions manifest. Farah Abdel “A nation should not be judged by how it treats At UNSW Law, we lead this debate. Questions of social justice are its highest citizens, but its lowest ones” 27 constantly being thrown our way, and we are forced to ponder the fairness of the situations taking place in our courts and in our William Shrubb Transsexuals and the law community. A law degree from UNSW means we are qualified not 30 only in the law itself, but the art of questioning why something Michael Legg is happening, whether it should be happening, and formulating Federal Court fees up – access to justice down 38 plans as to how to fix it in our capacity as law students and Josh Beale legal practitioners. Race and Rivalry: Neoimperialism, intervention 41 and the civilising mission post-1991 This is the ethos that permeates Court of Conscience. I hope you Brittney Rigby read the articles with the knowledge that you have the ability The faceless ‘boat people’ to make a difference. The pages to come pose some difficult 49 questions - questions that are worthy of spending some time Colin Fong Sub-ordination – 21 years later trying to answer. Rather than developing an immunity to the idea 52 that some people will suffer at the hands of justice, I encourage Daniel Reynolds you to use your privileged position of being intimately acquainted The ICRC customary law study: a small step towards more humane wartime practices with the operations of the law. Ask yourself whether it is fair, 55 right or reasonable to punish those whom the legal system treats Tarang Immidi differently or unfavourably. Our courts are not only courts of law, 63 (Dis)advantage in lower and higher courts but also courts of conscience. I hope the articles to come will Marie Iskan der inspire you to turn your mind to social justice, and advocate for HISTORY REPEATING: The persecution of fairness, equality and the just application of the law. homosexual men in modern-day Egypt and the struggle to recognize ‘sexual orientation’ as a 67 I hope you enjoy the 2013 edition. grounds of persecution under the Rome Statute Chantal Tanner Who holds the scales of justice in Katerina Jovanovska 75 matters of ‘Public Interest’? EDITOR-IN-CHIEF SHARANYA SRIKANTH Court of Conscience 2013 Creating value through a mutually UNSW Law Society beneficial relationship 80 World Courts of Women: A Transformative Victim-Based Approach to Gender Justice BY MONIQUE DAM & YING CHIN
The World Courts of Women is a transnational feminist project of civil society which aims to provide a public forum for women who are excluded from official state-based and international legal and political institutions. Initially coordinated by the Asian Women’s Human Rights Council,1 these courts are currently organised under the guidance of Corinne Kumar; Secretary General of EI Taller International, a global NGO committed to sustainable development and women’s human rights.2 To date, at least 30 such courts have been held in the Asia-Pacific, Middle East, Africa and Central America.3 World Courts of Women strive to include the experiences and perspectives of women which are often absent from dominant historical, legal and political narratives. In providing a symbolic ‘court’ of testimony for women from different parts of the world to name the crimes committed against them, victims and survivors can make their voice have their voices heard. The Courts are distinctly democratic, allowing victims to describe ‘crime’ and ‘violence’ in their own terms and thereby broadening the scope for different visions of injustice to be seen. Despite their lack of official authority, the Courts gain legitimacy through their commitment to a popular sovereignty model. The Courts have also played an important role in helping to build transnational solidarity and strengthening international and local women’s rights activism. 5 the Courts of Women permeate not only War Crimes Tribunals. By providing a space conduct of process, but also their thematic for women to articulate their experiences considerations – the Courts address a broad of war and post-conflict situations, the range of violence in an attempt to avoid interconnectedness of issues of poverty, privileging some experiences of violence lack of social security, peace building and over others. This is particularly important post-war reconstruction emerged. It thus in a society where sexual violence against facilitates analysis of the socio-economic women has tended to receive more attention dimensions of structural inequality and at the international level,9 a fixation perhaps their impact on gender security, acting as coloured by stereotypes of female passivity an impetus for new visions of peace that and vulnerability that in turn influence law incorporate gender justice.13 enforcement, legal bodies and social policy.10 I. An Unconventional of experts of diverse backgrounds such as This is reflected in the Women, Peace and II. Redefining What Approach social activists, academics, lawyers, writers Security agenda of the United Nations of Constitutes ‘Violence’ and historians. For example, the Jury for the World Courts of Women have been described which thematic resolutions have focused on 2001 Court of Women for Peace, Against The manner in which Courts of Women as a ‘form of protest against forms of sexual violence. War held in South Africa included former extend their focus beyond the traditional violence against women for which there is UN ambassador Mahjid Rahnema, former In contrast to this, the World Court of Women parameters of discussions about female [sic] no legal remedies within local, national, UN assistant Secretary General Dennis against War, for Peace, held in Capetown, violence can further be seen through the or international judiciary systems’.4 Some Halliday, human rights author Aicha El South Africa in 2001, adopted a much Courts’ consideration of diverse forms of might proclaim that ‘court’ is somewhat of a Channa and notably Aung San Suu Kyi as misnomer as the Courts are highly symbolic an honorary member (at that time, she and function more as a forum of testimony was still under house arrest and therefore In relation to violence against women, for the voices of the women victims and unable to be present).7 survivors of violence. This symbolism is it is problematic that international self-acknowledged as the Courts’ state that Another unique feature of the Courts is the humanitarian law maintains a false distinction their aim is to ‘weave together the objective incorporation of testimonies of resistance and reality...with the subjective testimonies of the emphasis placed on the need to listen between times of war and times of ‘peace’. the women; the personal with the political’.5 to the voices of the women who resist the It is these women who name the crimes violence. Part of the World Court of Women broader view of the violence committed violence. In the case of the 2001 World committed against them, which may not be Against War, for Peace was dedicated to against women in conflict and in post-conflict Court of Women Against War, for Peace, generally recognised as a crimes under the listening to testimonies of women central to contexts.11 Forty women from the Philippines, sessions were held on ‘wars as genocide’ in law, reflecting the bottom-up nature of the movements for peace in Jerusalem (Women Bosnia, Lebanon, Rwanda, Cambodia, Sierra relation to rape as part of ethnic cleansing courts and their radical democracy roots. in Black), Rwanda (Widows of Rwanda) and Leone, South Africa and Afghanistan gave in Bosnia, ‘wars without borders’ which The Courts seek to challenge the dominant South Africa (Anti-Apartheid activists). The testimonies to the Court comprising of nearly dealt with trafficking in Cambodia, ‘war human rights discourse in pursuit of ‘a new Courts of Women also facilitate interaction 4000 women and men from provinces of against civilisations’ which considered the generation of women’s human rights by between local NGOs and activists through South Africa and 62 different countries. The Stolen Generation in Australia, and ‘wars grounding themselves in the lived everyday workshops, seminars and roundtables.8 themes of the Court included the roots of against women’ which examined dowry experiences of women. The aim is to build solidarity as a way of war and conflict, the war of borders and murders in India. The Court also examined strengthening the bottom-up struggle for The formalism which traditionally endows boundaries, militarisation, the war against the use of land mines in Cambodia and women’s human rights. courts with legitimacy is not prioritised; women, the war of exclusion, racism Agent Orange in Vietnam, a demonstration an expert ‘Council of Wise Women and The Courts accept song, dance and visuals and the war against human security and of the Court’s divergence from the fixation Men’ presides over the Court from an as a means of testimony. This is partly due the globalisation of poverty.12 The Court with sexual violence at the international un-elevated platform, and witnesses to a concern to prevent re-traumatisation explored alternative notions of justice and level to examine a broader spectrum of and audience members are not spatially of the victims but it is also an effort to be evaluated the efficacy of transitional justice violence experienced by women during compartmentalised.6 The jury is composed inclusive, in recognition of the illiteracy legal institutions such as the Truth and armed conflict. The Court also dealt with of some women. The inclusiveness of Reconciliation Commission and International violence against women outside of periods 7 8 of armed conflict, reflecting the way in which international humanitarian law, Dixon argues than prohibitive, nature of the provisions who are often excluded by dominant legal women experience violence continuously that the priority is to obtain convictions indirectly reinforces the trivialisation of such and political institutions to give testimony of even in times of ‘peace’; including acts of for breaches of abstract legal norms rather offences.21 World Courts of Women can their experiences of violence in a multiplicity female genital mutilation, fundamentalism than convictions for the crime of what the thus be seen as a vehicle through which to of unconventional ways such as through and witch hunting. The Court of Women accused actually did to the victim.14 In the challenge such patriarchal assumptions which song, dance and visuals, resulting in greater against War, for Peace demonstrates how case of Kunarac,15 the International Criminal are embedded in law. inclusiveness. By enabling women to name the Courts of Women strive to encompass a Tribunal for the Former Yugoslavia (ICTY) the crimes committed against them in their In relation to violence against women, it is broad range of violence to avoid the exclusion was unwilling to recognise the collective own terms and rejecting hierarchical divisions problematic that international humanitarian of certain experiences of violence. subjectivity of Muslim women as a relevant of the courtroom, the Courts of Women law maintains a false distinction between civilian population, preferring to find the adopt a radical democracy model which World Courts of Women also seek to prevent times of war and times of ‘peace’. attack as directed against the Muslim civilian lends it popular legitimacy. Importantly, such the potential re-victimisation of female Mainstream legal discourse can also be seen population generally.16 This decision reveals democratic tendencies have been further victims of gender crimes in the context to operate around a ‘hierarchy of harms’, the limited potential of the international realised through the Courts’ demonstration of formal, top-down legal proceedings. In in which divisions are created between criminal process to recognise the specific of a conscious effort to recognise the diverse further redefining what constitutes violence, ‘ordinary’ and particularly egregious and gendered harms suffered by victims forms of violence that women experience in the Courts adopt a much broader approach violence; where the latter category is more of war crimes.17 To counter this, World their everyday life; empowering participants to what comes into the ambit of a ‘crime’ often perceived as meriting redress.22This Courts of Women seek to empower victims through acknowledgment of their status as and a human ‘right’ than mainstream artificial separation results in the tendency by allowing victims to name the crimes victims and survivors. It can thus be seen perceptions. For instance, the Courts speak of for violence committed against women to fail committed against them thereby enabling that the World Courts of Women provide the violence of neoliberal globalisation where to fit ‘narrow legal categories that dominate greater ownership of the process. The a platform for women whose voices are the deprivation of people of their economic, general understandings of serious human Courts recognise the importance of public unheard to condemn the perpetrators of the social and cultural rights is embedded in rights violations’, with the effect that ‘normal acknowledgement of victimisation in the violence committed against them, and in so structures, rendering perpetrators unclear. pervasive sexual and physical violence provision of healing and closure”.18 bringing its participants one step closer to a Courts of Women have previously challenged against women is simply not counted in the holistic realisation of gender justice. the legitimisation of processes in the name The transformative potential of the Courts is overall narrative of conflict or regime change’ of national security, law and order, and also found in their subversion of traditional (emphasis added).23 progress such as colonisation, globalisation dichotomies and assumptions. Article 27 of and militarisation, which are perceived as the Fourth Geneva Convention states: IV. Conclusion constituting wars perpetrated against women. “[w]omen shall be especially protected This article has attempted to demonstrate Courts of Women thus play a valuable role in against any attack on their honour, in the potential of World Courts of Women to ensuring that women’s lived experiences of particular against rape, enforced prostitution, reinvigorate feminist concerns in the public political, social and economic inequalities are or any form of indecent assault”19; the sphere. The Courts have enabled women not overlooked, in giving them ownership of language of which reflects the values of a their experiences of violence as survivors and patriarchal society. This characterisation empowerment through resistance. of rape and other forms of sexual violence as attacks against the ‘honour’ of women III. Empowerment implies that ‘honour’ is something lent to References through Ownership women by men and that a raped woman is ‘dishonoured’. The trickle-down effect 1. People’s Movement Assembly Resolution of Action, Introduction on the World Court of Women In conventional criminal courts, victims are (2007–2008) Women’s Economic Agenda Project,
11 to flee westward from the coastal town of circumstances surrounding Gaddafi’s death Sirteiv. This was followed by a skirmish with drew attention away from his crimes, and Misrata militiamen, whilst at the same time without a trial, Gaddafi’s victims have lost the Gaddafi attempted to hide in two drainage opportunity for his actions to be denounced. pipes underneath a major road.5 From Furthermore, the deaths of Gaddafi and here, the truth is difficult to determine, as bin Laden without trials allows a tyrant accounts differ on the precise details of and a terrorist to be spared the deserved how Muammar Gaddafi was killed. A United shame and stigma of imprisonment, instead Nations report states that Muammar Gaddafi enjoying the luxury of death and the post- was alive on capture, subsequently dying in mortem glory of martyrdom. custody,6 although it draws no inferences as to whether this was an unlawful killing. II. The International Criminal Contrastingly, Human Rights Watch asserts Court - A model for justice? that the militia abused Gaddafi upon capture, Ideally, tyrants such as Gaddafi would be with one soldier stabbing him with their brought to justice through the International bayonet, Gaddafi consequently dying within Criminal Court, which provides the most 7 two hours of capture. Furthermore, the impartial and authoritative body for the Human Rights Council was not provided trial of war criminals. The international legal with autopsy reports by the authorities, environment has developed significantly since 8 preventing a conclusive determination. the creation of the International Military The gruesome images of a mangled but Both the Universal Doctrine of Human Rights regime. In both cases, the absence of a fair Tribunal at Nuremberg, which introduced recognisable Gaddafi flooded the internet and the International Covenant on Civil and trial has prevented the implementation of the the notion of individual responsibility for and news media upon his death, a cause Political Rights address the importance of a rule of law and exacerbated regional conflicts. crimes of the state. The ad hoc tribunals for celebration for many of the people that fair and open trial1, and the need for justice created in response to regional crises, the This article seeks to promote the rights of suffered under his regime,9 although the to be dispensed by an independent and International Criminal Tribunal for Rwanda tyrants, the perpetrators of horrific crimes, violence of his death served as an ominous impartial judiciary, not arbitrarily. The notions (ICTR) and the International Criminal Tribunal individuals that are admittedly not usually of natural justice and procedural fairness are for the former Yugoslavia (ICTY) have been worthy of the sympathy of the international commonly accepted in Australia and other critical to reforming the culture of impunity, community. However, it is not simply for their ...without a trial, Westminster systems, and domestically, this by taking effective measures to enforce benefit that transparent justice is the most 11 is applied to alleged rapists, murderers and Gaddafi’s victims have individual criminal responsibility. The most desirable outcome. A fair trial, followed by paedophiles, with human rights given to important development in recent years has incarceration if found guilty, deprives them of those that have committed even the most lost the opportunity been the increasingly accepted place of martyrdom, and sets the tone for a peaceful repugnant acts. Nevertheless, internationally, the ICC in the international judicial regime. transition of power. for his actions to be this right is rarely given to the dictators The ICC has the broad consent of the states and tyrants post-regime, with transparency denounced. behind its establishment, and even those that I. The disadvantages of death and due process not seen as a priority in have opted not to consent to ICC jurisdiction without trial the transition of power. The examples of support mechanisms of international former dictators Muammar Gaddafi of In June 2011, the International Criminal sign of the transition process to come. The accountability. Although the ICC has faced Libya and Saddam Hussein of Iraq exemplify Court issued a warrant for the arrest of legal response to the indeterminate cause of criticism on the basis of procedural fairness, the challenges to reconciling the crimes Gaddafi, stating that under article 58(1) of death has been insufficient, with the chaotic and attacks on its legitimacy,12 it provides the of the past with future stability. Saddam the Rome Statute,2 ‘the arrest of Muammar lack of proper legal inquiry demonstrating best hope for holding leaders accountable Hussein was tried summarily, his gruesome Gaddafi appears necessary at this stage to… the obstacles faced by the new Libyan and enforcing the standards of the wider execution captured on film and broadcast to ensure his appearance before the Court’,3 government in the enforcement of the rule international community. Furthermore, the an international audience, whilst Muammar although this never eventuated. Instead, on of law, leading the Human Rights Council to creation of a permanent, independent judicial 10 al-Gaddafi was killed before facing trial, his the 20 October 2011, a targeted NATO drone call for further enquiry into the matter. Like body has led to ‘not only a punitive but also a body displayed as a symbol of the displaced strike hit a convoy of vehicles attempting the death of Osama bin Laden, the disputed restorative function’ through the participation 13 14 and reparation of victims and affected IV. The trial of V. Conclusion reformation of a culture of impunity and communities. The legal force of the ICC is Saddam Hussein Satisfying the rights of victims, defendants facilitated a healing process. Contrastingly, enhanced by the legitimacy it has earned A prime example of this is the farcical trial and the wider population has proved to be show trials and executions only serve to through the consent of over 120 nations to its of Saddam Hussein initiated in 2004, with a difficult balancing act in the pursuit of exacerbate conflicts, exemplified by the jurisdictions, processes generally seen as fair the lack of due process creating a crisis of international justice. The ICTY has recently consequences of the premature deaths of and impartial, and the universally desirable legitimacy for the court. Furthermore, the come under criticism for its failure to convict Gaddafi and Hussein. If heads of state are to goal of achieving peace and stability. court lacked procedures to safeguard it Croatian generals in the Balkan conflict and be held accountable in the future, then the rights of tyrants and the most abhorrent war III. The quest for legitimacy against accusations of being a ‘show trial’, as not doing enough for the victims of the war the US and Britain exercised a high degree crimes. However, those indicted by the ICTY criminals must be upheld as due process is a From the trial of Charles I in 1649 to the trial of planning and control of the trial.18 Salem include heads of state, prime ministers and necessary precursor to the achievement of of Saddam Hussein, trials of former heads Chalabi, a member of a powerful Iraqi family army chiefs-of-staff and this has assisted the peace, stability and reconciliation. of state have been frequently challenged on allied with the US, was appointed to head the basis of illegitimacy, with the defendants the trial despite being a trial lawyer with no contending the court does not have judicial experience. Additionally, public access References jurisdiction over their actions. In the ICTY and to the trial was denied, and proceedings ICTR, the cases of The Prosecutor v Tadic13 were subjected to heavy censorship.19 1. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS and The Prosecutor v Kanyabashi14 challenged Consequently, the trial and execution of 171 (entered into force 23 March 1976), art 14; Universal Declaration of Human Rights, GA Res 217A (III), the legality and legitimacy of the tribunals. In Hussein had a detrimental impact on the UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), art. 10. addition, Antonio Cassese, Former President transition of power, as many of his crimes 2. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 of the Special Tribunal for Lebanon has were left unaddressed and large sections (entered into force 1 July 2002), art. 58(1). outlined a test of legitimacy to be applied to of the Iraqi people refused to accept the 3. Situation in the Libyan Arab Jamahiriya (Warrant of Arrest for Muammar Mohammed Abu Minyar international tribunals. As Cassese states, an legitimacy of the decision. As former Egyptian Gaddafi) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/11, 27 June 2011 [19]) institution is considered legitimate when the President Hosni Mubarak stated at the 4. Human Rights Watch, Death of a Dictator (2012) 1. ‘majority of the population, or the majority time, ‘No-one will ever forget the way in 5. Ibid. of the institution’s constituency, expresses which Saddam was executed - they turned 6. Human Rights Council, Report of the International Commission of Inquiry on Libya, 19th sess, Agenda a high degree of consent and approval for him into a martyr, and the problems in Iraq Item 4, UN Doc A/HRC/19/68 (2 March 2012) 9 [33] 7. Human Rights Watch, Death of a Dictator (2012) 7. 8. Ibid 9[33]. 9. Jawad, R, ‘Gaddafi's death prompts wild celebrations in Tripoli’, BBC News (London) 20 October 2011. No-one will ever forget the way in which 10. Human Rights Council, ibid. 9[33]. Saddam was executed - they turned him into a 11. Popolevski, V 2012, ‘Legality and Legitimacy of International Criminal Tribunals’ 12, chapter in Falk, R et al 2012, Legality and Legitimacy in Global Affairs, Oxford Univerity Press, Oxford. martyr, and the problems in Iraq remained. 12. Ibid 20. 13. Prosecutor v Tadic (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-94-1-A, 15 July 1999).
15 20 14. Prosecutor v Kanyabashi (Judgement) (International Criminal Tribunal for Rwanda, Trial Chamber II, Case it ’. The values, principles and goals are the remained’. In contrast, the trial of former No ICTR-97-29-T, 8 March 2002). institution’s ‘legitimating grounds’16 and a Serbian leader Slobodan Milosevic was given 15. Cassese, A 2012, ‘The Legitimacy of International Criminal Tribunals and the Current Prospects of legitimate tribunal must have the consent of sufficient resources to defend himself, and International Criminal Justice’, Leiden Journal of International Law, vol. 25, no. 2, 492. the wider population, a legitimate purpose was also allowed to publicly challenge the 16. Ibid 492. 21 based on universal values of truth and justice, legitimacy of the ICTY. This sometimes led to 17. Ibid 494. and must achieve performative legitimacy Milosevic frustrating the trial proceedings, but 17 18. Peterson, J 2007, ‘Unpacking Show Trials: Situating the Trial of Saddam Hussein’, Harvard International through due process. The ICC strives to meet it ultimately assisted the court gain legitimacy, Law Journal, vol. 48, no. 1, 282. these goals, as have the ICTY and ICTR before as justice was done publicly and the facts of 19. Ibid 286. it, although trials of former leaders often fail the case unfolded in a manner unbiased by 20. BBC World News, ‘Hanging ‘makes martyr of Saddam’’, BBC News (London) 5 January 2007. to meet these basic standards. legal processes. 21. Scharf, M 2002, ‘The Legacy of the Milosevic Trial’, New England Law Review, vol.37, 915. 15 16 Running out of compensation money: whipping away the social security blanket?1
BY PRUE VINES & MATTHEW BUTT
Most Australians assume that if they run out it is calculated to last according to the life Calculation he belonged to. He had of money they can turn to social security. expectancy of the victim. of the Lump Sum been paid about $3000 per However, when a person runs out of Preclusion Period fortnight (net). His case was This seems fair enough. But many people run compensation that safety blanket may settled and he received a lump out of money before that life expectancy is The LSPP is calculated by dividing not be as available as expected. sum of $530,000 on the basis that over. Sometimes this is because the person the ‘compensation part’ (that is he was unlikely to be able to work This discussion focuses on NSW but applies did not use the money wisely, but there are the earnings part) of the compensation by again and that his life expectancy would be in similar terms to other parts of Australia. other reasons. One is the discounts applied. the ‘divisor’, as defined in the Social Security about 65, or another 16 years. He thought of The common law principles for the award The earnings component will be discounted Act 1991 (Cth). investing the remaining money but couldn’t of damages continue to apply, subject to 15-30% for the “vicissitudes of life”; and the Where compensation is received by think what to do so put most of it in a term the caps and limits put in place by the Civil whole lump sum will be discounted 5% for the settlement, the ‘compensation part’ is deposit. He tried to spend a bit less than he Liability Act 2002 (NSW). The general rule fact that the money is being received earlier 50% of the lump sum, regardless of the used to but with rent, food, a holiday costing is that the injured person is to be placed than it would had the accident not happened. actual amount claimed for lost earnings. about $3000, the lawyer’s fees and significant back in the position they would have been So, if your lump sum runs out you can apply If the matter is decided by a court the medical expenses including on pain medication in had the accident not happened, so far as for social security, right? Wrong. Or probably ‘compensation part’ is whatever the court all the money had gone after 5 years. money will allow: Todorovic v Waller (1981) wrong. There are many examples of people specifies. The divisor is set at the amount of 150 CLR 402. This is the reason it has always Joe had confidently expected social security who have run out of compensation, not income a single pensioner can earn in a week been ‘better’ to injure a poor person than a to look after him. But they calculated his LSPP necessarily because they wasted the money, before the pension is lost. At present that is rich person. In order to put the person back on the usual basis that the compensation but who, on application to social security about $880. into that position various heads of damages amount was half of $530,000 = 265,000. found they were ‘precluded’. are considered, including lost earnings and Consider Joe. He was injured at work, Divided by the divisor of 880 =301 weeks that lost earning capacity, expenses incurred, If this happens to you it is a nasty shock if your lost a leg and the use of his right hand. In gave 6 years. He would not be entitled for future expenses, and general damages (pain solicitor didn’t warn you that it might happen. constant pain he can no longer work as an at least another year. Joe was destitute and and suffering, lost life-time etc). Because The Social Security Act 1991 (Cth) provides electrician or any kind of tradesman and has soon after he was homeless. compensation is not intended to punish that where compensation has been awarded no other work skills. Because he is 48 it is Notice the difference between the court’s the defendant (who, after all, may not have for lost earnings the person compensated will unlikely that he will be able to work again. original calculation of how long the money done anything very wrong – for example, not be eligible for social security for a ‘Lump He can no longer play the tuba in the band would last and the social security calculation. look sideways while driving) the courts Sum Preclusion Period’ (‘LSPP’). try to ensure there is no element of extra This may not be not as fair as it first seems. compensation by deciding on the low side There are two big issues: how the LSPP Is it reasonable for the social security preclusion in many of the heads of damages. Overall, is calculated, and the fact that it ignores compensation is worked out on the basis period to be calculated quite differently from the lawyers’ fees. that the person should be able to continue way the compensation was calculated? to live, more or less, as they did before, and 17 18 Lawyers’ fees The second issue for the person who has run out of compensation is that the calculation of the LSPP ignores the cost of getting the compensation – that is, the lawyer’s fees. This is a very big issue, particularly since the no-win- no-fee system has been allowed. The arrangement is usually that a percentage (as much as 40%) comes out of the compensation if there is a win. It turns out that Joe’s no- win-no-fee agreement provided that he would pay 20% of his award to the lawyers who litigated his compensation award. This means that he got 20% less in his hand. He actually got not $530,000 but $434,000. But when the LSPP is calculated this is ignored. This means that the preclusion period is one year or longer because of money Joe never had. We need to ask questions about this. Is it reasonable for the social security preclusion period to be calculated quite differently from the way the compensation was calculated? Taxpayers should not be overburdened; but this contradicts the compensation principle, which is to put the person back in the position they would have been in if the accident hadn’t happened. -L autrec Damages are not awarded on the basis that the plaintiff should have to live as if they are on the pension; but the LSPP formula directly contradicts this approach; and the failure to take account of the cost of lawyer’s fees exacerbates the problem. This leaves people like Joe with no options. The inadequacy of compensation, by this process is converted into an accelerator of people’s fall through the social security safety net into destitution. It could happen to anyone, even you. sex work, autonomy and the injustices of 1 Prue Vines, Professor, Law School, UNSW and * Matthew Butt, Litigation Solicitor, Welfare Rights criminalisatioN Centre. We are currently carrying out a research project on the impact of compensation on social f ro m “R eine d e J oi ” by T oulouse i m a g e is d etail by amber karanikolas security rights. 20 light as other professions. If the answer absence of coercion, and the quantity and is in the negative, what then makes sex quality of the pleasures they provide.”10 This work different? ethical view ought to be accepted as the proper lens through which we evaluate the Many sex workers defend their right to be role of autonomy in sex work. This is because paid for sexual acts and value the “dignity there is general acknowledgement, not only and liberty” of the profession.6 It is also often that women participate in sex work ultimately argued that sex work does not fundamentally for economic gain, but also because receiving differ from other kinds of professions through an income should not trump the safety of arguments that whatever exploitation or the individual. Many (but definitely not all) degradation accompanies sex work originates workers of the sex industry are unfairly, yet from its morally and legally stigmatised likely, to be exposed to “danger, disease, practice.7 Jody Freeman eruditely summarised mistreatment, [violence], insecurity, the ‘inescapable dilemma’ of the prejudiced psychological abuse, and emotional pain”.11 practice, signposting two overarching issues: Ample research provides that socio- “[R]esist[ing] the commodification of * Due to the disproportional amount making truly autonomous choices.3 Physical economic and political factors such as women’s sexuality …requires [either] of women involved in the sex industry, coercion interferes with autonomy but is not gender parity, loss of job security and the circumscribing choices that some women this article will be concerned with the only factor impeding the autonomous feminisation of poverty are the major causes themselves insist are voluntary, or to support what may appear to be a particularly right of persons.4 The respective literatures for female involvement in the sex industry.12 the right of women to do the work they say heteronormative view of the industry. of St James Richards and Schulhofer assume For some women it is an active choice but they want to do, at the cost of reinforcing Although I acknowledge the heterogeneous a broad definition, whilst Elizabeth and Scott for many it is a last resort where women are male dominance.”8 and diverse identities of those involved in Anderson have favoured a narrow approach.5 required to consent.13 It is this permeating sex work, (especially the fact that men are For the purposes of this essay I will adopt This dichotomy in opinion affects our notion of socio-economic and political sex workers as well), this is, unfortunately, Schulhofer’s wide delineation to consider interpretation of sex work. Are sex workers coercion which is the point of disagreement outside the scope of this research, as I will how international societies have developed exercising sexual freedom and pleasure as and a major reason why sex work has be focusing on those who identify as customs which impinge on the choice and free agents, or conversely, are sex workers historically proved so perplexing. In any case, women who are involved in sex work. consent of its democrats. exclusive victims of their customers?9 the conditions sex workers have worked and continue to work under has been Gayle Rubin rightly believes that “democratic I. Introduction - A War II. Sex Work versus ‘Normal overshadowed by notions of ‘voluntariness’ morality should judge sexual acts by the between Definitions Work’: is there a Difference? and the sex profession’s ‘patriarchy’.14 way partners treat one another, the level Understandings of the definition of autonomy It prima facie appears impossible to reach of mutual consideration, the presence or Interestingly Kathleen Barry rightly have been central to the way we view human a single conclusion about the role of champions the idea of the existing rights in relation to sex work. The conflicting autonomy in the choices of sex workers, “uselessness” of “choice” rhetorics by views on whether sex work is ‘real work’ seem or lack thereof, particularly in light of the This dichotomy in opinion highlighting that sex work is not concerned to crux on how we define sexual autonomy protracted history of feminist literature affects our interpretation with female autonomy, but rather the itself. Stephen Schulhofer defines sexual around the issue. Sex workers themselves autonomy of customers.15 An increasing autonomy as the freedom of every person to hold a multitude of conflicting views of sex work. Are sex number of writers are understandably decide whether and when to engage in sexual about their own autonomy, and scholars, workers exercising sexual requesting greater focus on those activity.1 In specific relation to sex work there academics and advocacy groups are all who purchase sex work, rather than ought to be a “right to safeguard and exclude, opinionated on the dynamics of consent and freedom and pleasure as concentrating on the female workers themselves.16 This is in an attempt to the freedom to refuse to have sex with any autonomy in the realm of sex work. free agents, or conversely, person at any time, for any reason or for no attack the “root of the problem”.17 When considering a woman’s choice to reason at all.”2 Questions of autonomy will are sex workers exclusive enter sexual relations in return for money, always involve problems of degree, and social it becomes necessary to evaluate whether conditions habitually prevent individuals from victims of their customers? sex work can be discussed in the same 21 22 III. To Reform, or not to Reform? legislated purpose; it has propelled the sex IV. The ‘Swedish Model’: The first effect after enactment was an That is the Question industry further underground.20 An Avenue for Justice? immediate drop in the numbers of women visibly working. A problem here arises, Crafting policy and reform proposals that Decriminalisation, the granting of (some) There has been recent debate in Europe because these findings unlikely reflected a protect the autonomy of the individual autonomy back onto sex workers, thus about legal changes introduced in several departure from sex work, but rather only without legitimising sexist elements of the seems a viable solution to the conundrum. countries. In Sweden, sex work is considered a likely emphasised how sex workers and practice has proved overwhelming for moral If sex workers can organise, form support ‘social problem’, and uniquely laws criminalise their clients have chosen less visible ways and legal theorists.18 State regulation or groups and run self-help networks, they the purchasers of sexual services in an of proceeding with their business. Also, the criminalisation is often a further imposition will be enabled to exert some control over attempt to reduce demand. The legislation number of convictions is startlingly low. In on the autonomy of sex workers. the coercive elements of the practice.21 hopes to achieve equality between males the first nine months of 1999 only three sex By listening to sex workers themselves, and females at a national level in Sweden Advocacy groups, such as the Canadian clients were found guilty and charged. While it is clear that many are weary of being by defining sex work as a form of violence Organisation for the Rights of Prostitutes project workers have emphasised that they subjected to other people’s views of against women.25 Since January 1, 1999, (CORP), lobbies for reform of criminal are available to sex workers for support, sex appropriate sexuality.22 purchasing or attempting to purchase sexual laws in relation to sex work. CORP strives workers seem to find it increasingly difficult services has constituted a criminal offence not only for decriminalisation of the so- However, decriminalisation and reform to contact project workers. Subsequently, punishable by fines and up to six months called ‘offensive’ and ‘amoral’ sex worker are only the starting points for the project workers have had little success.30 imprisonment.26 It is in this way that Swedish profession but also justifiably believes that professionalisation of the practice which laws, despite being highly regulatory, can be Moreover, not only should the effect of sex workers be allowed to organise, pay could lead to improved working conditions considered abolitionist.27 the legislation be considered at the local taxes and receive unemployment insurance. for many women. Although lobby groups level, but ought to be discussed on an In short, CORP’s “ideal situation is” to set for sex worker rights and many feminists The ‘Swedish Model’ has recently been international, scale, because immigrant their “own standards.”19 unwaveringly express different long-term adopted by other countries such as France.28 sex workers in Sweden are also likely to be goals, they ought to agree on short- Yet, it is important to note that the ‘Swedish Decriminalising sex work is especially driven underground in fear of deportation.31 term reform proposals to create some Model’ is an alternative to sex work distinct important from a moral standpoint. This The consequences of sex work being driven prospect for any long-term aspirations.23 from decriminalisation, because under the is because it is increasingly difficult for sex underground means that sex workers and Decriminalisation, albeit not a conclusive ‘Swedish Model’ sex work remains illegal. workers to report violence and other crimes their clients increasingly evade visibility and end to sex worker discrimination, would A support system was introduced that committed against their person for fear of thus criminal sanction. allow for unionisation, harm-minimisation included permanent government funding of themselves being prosecuted. Combined with policies, the extension of worker benefits, municipal sex worker projects, counselling Although the ‘Swedish Model’ is a practical the lack of protection and support available and health and safety regulations. All of and retraining possibilities.29 Yet, their success and virtuous legal policy solution to the sex for sex workers in such circumstances, the which could significantly improve the life of, has been hampered by the way statutory worker dilemma by aiming to criminalise criminalisation of sex work has ironically yet and provide some empowerment to, those regulations affect the women involved. the agents and managers of brothels who unjustifiably only achieved the opposite of its working in the sex industry.24
An increasing number of writers are If sex workers can organise, form support understandably requesting greater focus groups and run self-help networks, they will be enabled to exert some control over the on those who purchase sex work, rather coercive elements of the practice. By listening than concentrating on the female workers to sex workers themselves, it is clear that themselves. This is an attempt to attack many are weary of being subjected to other the “root of the problem”. people’s views of appropriate sexuality. 24 5. Jeffery, Gauthier, ‘Prostitution, Sexual Autonomy, and Sex Discrimination’ (2011) 26(1) Hypatia 166, 176. 6. Christine Overall, ‘’What’s Wrong with Prostitution? Evaluating Sex Work’ (1992) 17(4) Signs 705, 705. 7. Gauthier, above n 5, 167. 8. Jody Freeman, ‘The Feminist Debate Over Prostitution Reform: Prostitutes’ Rights Groups, Radical Feminists, and the (Im)possibility of Consent’ (1990) 5 Berkeley Women’s Law Journal 75, 76. 9. [The citation given was incorrect and no part of the article cited reflected the ideas expressed by this
by q uinn norton p h oto sentence] In the event that you do find the ideas reflected, the correct citation is ‘Ibid 77.’ 10. Gayle Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’ in Carole Vance (ed), Pleasure and Danger (Routledge and K. Paul, 1984) 143, 153. 11. Overall, above n 6, 710. 12. Monica O’Connor and Grainne Healy, Coalition Against Trafficking in Women and the European Women financially profit from the sex work, it is often results in constraints on women’s options Lobby, The Links between Prostitution and Sex Trafficking: A Brief Handbook (2006) 6. the working women in particular who suffer.32 and freedom, but also contemporaneously 13. Overall, above n 6, 711. The ‘Swedish Model’ therefore ultimately forces them into a position of limited choice 14. Freeman, above n 8, 86. fails to protect the autonomy of sex workers. in what should be a right to choose or refuse 15. O’ Connor and Healy, above n 12, 12. 35 Is then decriminalisation the only sexual partners. Although some undertake 16. Jan Macleod et al, ‘‘Challenging Men’s Demand for Prostitution in Scotland: A Research Report Based justiciable answer? sex work voluntarily, we must remain on Interviews with 110 Men Who Bought Women in Prostitution’ (Report, United Kingdom: Women’s cognisant of the relativity of choice; where Support Project), 5. Governments therefore ought to opt for there exists an ability of social constituents 17. Ibid. decriminalisation, the establishment and to influence decision making which could 18. Gauthier, above n 5, 166. permanent funding of health and support impede an individual’s capacity to give programs, and to follow the United Nations’ 19. Ibid 83. ‘consent’. We ought to remain aware that recommendations on sex work policy 20. Freeman, above n 8, 81. legislation aimed at eliminating poverty and which would establish sex work as ‘real 21. Ibid 92. increasing employment options for women work’.33 Decriminalisation of sex work 22. Ibid 104. is equally as necessary as state action should include the abolition of criminal 23. Ibid 72. Freeman’s essay goes deeper into what most feminist think on the topic and the divergence regulating or the practice itself.36 As seen laws and penalties for the purchase of sex between liberal feminists (proponents of liberal individualism) and radical feminists, and how they too with the failures of the ‘Swedish Model’, have differing aspirations for the future or the sex industry. (as Sweden does) the management of sex without formal and pragmatic state efforts workers and brothels, and other activities in 24. Gauthier, above n 5, 182. to achieve gender equality, legal regulation connexion with sex work.34 25. Ministry of Industry, Employment and Communications, Government of Sweden, Prostitution and and criminalisation of sex work, there will trafficking in human beings (April 2005) Government Offices of Sweden, remain ineffective strategies to deter those
the formation of the Israeli state, who then stood among the many Palestinian Arabic men ‘A Nation should not be took control of the area recommended by and women who made their four hour journey the UN General Assembly Resolution 181 as to work, only to be used as cheap labour. Some judged by how it treats well as control of 60% of Arab land allocated people would fight their way to the front of the by the United Nations. Since then, Israel has gate in frustration. Others waited in silence, its highest citizens, but forced a daily struggle and oppression onto indicating how this routine has sadly become the Palestinian people. It is difficult not to convention for some. notice the likeness between the South African its lowest ones’ - Nelson Mandela I witnessed a woman being refused entry Apartheid regime and that of Israeli-occupied into a town at a checkpoint because she was territories and I witnessed it. BY FARAH ABDEL The impending death of Nelson Mandela has undoubtedly clearly of an Arabic heritage. I watched her prompted the world to reminisce on his inspirational life In the summer of 2007, I embarked on a suffer through emotions of despair, sadness achievements and I too have been influenced to do the routine visit to the Middle East with my and anger as she missed her sister’s funeral, same. I was reminded of Mandela’s role as an anti-apartheid family, first to Syria to visit my mother’s family for which she travelled from Jordan, whilst revolutionary. It reminds me of my journey with family to and then to Jordan, to visit my father’s. For the Israeli soldiers who refused her entry Palestine as a 12 year old girl in 2007. the first time, since migrating from the Middle laughed and socialised among one another. East in 1999, my family and I visited Palestine. I saw dozens of army tanks and thousands Despite being a violation of international law, apartheid I knew the history, I heard the stories and of armed soldiers patrolling towns, scaring regulated South Africa from 1948 until 1994. The South watched the news, but nothing prepared children and monitoring set curfew times. African National Party led a system of racial segregation me for events that I would experience, the I drove along the notorious ‘Wall’; a 700 where the rights of the black inhabitants of South Africa things that I would witness and the emotions kilometre Israeli West Bank barrier which were removed in order to preserve white supremacy. In his I would soon feel. What should have been separates the State of Israel from the efforts to destroy this apartheid regime, Mandela announced a peaceful and secure journey (due to the Palestinian West Bank; a wall which separates that there is ‘no such thing as part freedom’ for ‘freedom Australian passport) was made tense and and exacerbates different cultures and would be meaningless without security in the home and in difficult due to our obvious Arabic heritage. the streets.’ Mandela’s spoken truth resulted in his 27 years cultural tensions. On either side of the wall of imprisonment. I witnessed the Israelis control each place we there is a stark contrast in infrastructure and visited. I saw the “Jewish-only” settlements, living conditions. Thousands of armed Israeli The South African apartheid seems analogous to the modern the separate states, towns and roads for the soldiers patrol the wall’s border and create Arab-Israeli conflict. Following the series of Arab-Israeli wars dispersed Israeli and Palestinian citizens. I further apprehension among the Palestinian from 1947-1949, approximately 700,000 Palestinians fled the waited at several military checkpoints for hours people. Yet, the world does not appear to care. country or were expelled from their homes. This resulted in at a time to reach our destination, where I 27 28 In hindsight, and from a contemporary Western perspective, it is truly shocking that apartheid was law and system for 46 years in South Africa. While the world became increasingly aware and opposed to this system in South Africa, the Palestinians suffered and continue to suffer in silence. Apartheid no longer exists for the South Africans. Apartheid however is still law for the Palestinians: 65 years and running. by Kristian Ber g e p h oto In 1973, the UN made Apartheid an international crime under the International Convention on the Suppression and Punishment of the Crime of Apartheid. International critics of the Israeli national and international policy make an analogy between Israel and South Africa and accuse Israel of committing the crime of apartheid. Opponents to this analogy claim that it is intended to deligitimise Israel and say their policy is enacted for security concerns in order to protect them from Palestinian terrorist organisations. I wonder how much longer Israel and the USA will be able to use security concerns as a means of justifying their own terrorism, not just on Palestine, but on nations worldwide. How much longer will our society be brainwashed to overlook the fact that Israel and its alliances possess superior weaponry, money, strength and the most powerful nations on their side and use the media to produce an apprehensive and mindless society? If they are at a “war on terror”, then they are at war with themselves.
‘We know too well that TRANSSEXUALS our freedom is incomplete AND THE LAW
without the freedom of BY WILLIAM SHRUBB the Palestinians.’ – Nelson Mandela 29 30 Corbett, an English aristocrat who was him, His Honour listed four possible criteria: Governor of Tasmania from 1959 to 1963. The respondent was April Ashley, a former (i) chromosomal factors, model. Their marriage had broken up, and (ii) gonadal factors (i.e., presence or Ashley was seeking some share of Corbett’s absence of testes or ovaries), property. Ormrod LJ was asked to determine if the marriage between the two parties (iii) genital factors (including internal sex was valid. It was, all in all, the standard organs), and kind of fodder for the society pages of the (iv) psychological factors.4 British tabloids. Except for one thing: April Ashley had been outed as a male-to-female Secondly, His Honour found that physical transsexual ten years earlier. characteristics of a person were, by reason of their chromosomes, ‘fixed at birth Born in Liverpool in 1935 as George (at the latest), and cannot be changed, Jamieson, April was raised as a boy, and either by natural development of organs joined the Merchant Navy at the age of of the opposite sex, or by medical or I. A comparison between this previously simple sexual dualism has broken fourteen. But despite being biologically male surgical means.’5 Having found this, the England and Australia down. Courts have had to answer questions like: from birth, April felt trapped in the wrong question for His Honour became whether a 1 body. After a deliberate drug overdose, and ‘Male and female he created them,’ wrote person’s sex for the purposes of marriage • What criteria should be used to time in a psychiatric hospital, he moved to the author of the Book of Genesis. It is such ought to be determined by reference determine a person’s sex? France, and became friendly with a troupe an easy sexual dualism that touches so many to physical characteristics as apparent of female impersonators. He joined the aspects of our lives. When you walk into the at birth, psychological criteria, or some • When should transsexual people troupe, began taking female hormones, UNSW Law building, seeking a bathroom, be recognised as a member of a combination thereof. and are confronted with a choice – male or and, in 1960, underwent surgery. His testes particular sex? female – the same dualism is lurking. It is and scrotum were amputated, and a vagina His Honour found that only physical not a problem for most people. Sometimes, • Under what circumstances should was constructed from the inverted skin of characteristics as apparent at birth ought to however, a person may have the physical new birth certificates and identity his penis. No womb or ovaries could be be determinative in the case of marriage. constructed, nor could his chromosomes be Bearing in mind that Ashley was accepted characteristics of one sex, yet feel deeply that documents be issued to altered. Only six months later, post-operative as a woman for the purposes of national they are in fact a member of the other sex. transsexual people? This is known as transsexualism, or gender George, who adopted the name April Ashley, insurance, His Honour nevertheless dysphoria. It is different from homosexuality. • And crucially, who is a transsexual met Arthur Corbett for the first time. Arthur found that marriage was a special kind of Women who have sex with women are still person allowed to marry? was aware at all times that April was a relationship, because ‘it is the institution on women; they have the physical characteristics male-to-female transsexual. The pair fell in which the family is built, and in which the of women, and identify as women. It is Answering these questions has been difficult, love, and married in 1963. In the meantime, capacity for natural heterosexual intercourse different from transvestism, or cross-dressing: and the results have often been tragic, but Ashley had changed her name by deed poll, is an essential element.’6 His Honour men who dress as women still have the the general trend has been towards a greater and had received a woman’s insurance card helpfully conceded that “[marriage] has, of physical characteristics of men, and still understanding and tolerance of those people from the Ministry for National Insurance. All course, many other characteristics, of which identify as men. It is also different from being who do not fit so easily into our constructed was not well in the relationship, however, companionship and mutual support is an and the pair separated not long after the an intersex person, or a hermaphrodite. sexual dualism. important one,”7 but maintained that ‘the marriage. The question for Ormrod LJ was Transsexual people only have the physical characteristics which distinguish it from all whether Ashley was considered by English characteristics of one sex. II. The law in England: the other relationships can only be met by two marriage law to be a man, and thus whether restrictive biological test persons of opposite sex.’8 However, over twenty thousand Australians the marriage was void. who experience transsexualism, feel like The first major case to deal with this issue Nor was Ashley’s operation or hormone First, His Honour considered the criteria by they are stuck with the wrong physical was Corbett v Corbett (orse. Ashley).3 The which a person’s sex might be determined. On treatment sufficient for Ormrod LJ. In a characteristics.2 applicant was Arthur Corbett, later Baron Over the last four decades, the the evidence of the medical experts before breathtakingly outspoken – some might say law has had to grapple with questions where Rowallan, the cross-dressing son of Thomas 32 liability, the court ought to have regard to ‘the relevant circumstances at the time of the behaviour.’19 Two conclusions followed down the from this: first, a person’s chromosomes path of the restrictive were never ‘relevant circumstances’; and biological test in the interests secondly, in sexual offences, the state of of ‘certainty and consistency.’ In a person’s external genitalia ought to be contrast, the first Australian case to deal with considered at the time of the alleged offence, the issue of determining a person’s sex was a regardless of whether ‘they were artificially 20 criminal case. In R v Harris and McGuiness16 created or were not the same as at birth.’ the New South Wales Court of Criminal Consequently, the Court overturned Lee Appeal attempted to define a ‘male person’ Harris’ conviction on the grounds that, 12 Later, in R v Tan, this restrictive biological for the purposes of s 81A of the Crimes Act as a post-operative transsexual, she was test was extended to determining a person’s 1900 (NSW), which used to criminalise a not a ‘male person’ for the purposes of s sex for the purposes of criminal liability too, in male person attempting to procure an ‘act 81A. Phillis McGuiness was not so lucky. 13 the interests of “certainty and consistency.” of indecency’ with another male person. Lee While accepting that psychological factors 21 Ormrod LJ’s test, founded on the supposed Harris was a post-operative male-to-female contributed to a person’s sexual identity, Mathews J regretfully rejected the argument special nature of marriage, came to be the transsexual, while Phillis McGuiness was a pre- that “where a person’s gender identification sole test for determining a person’s sex across operative male-to-female transsexual. They differs from his or her biological sex, the all fields of law in the United Kingdom. The were both charged with offering to engage in former should in all cases prevail.”22 Pre- publicly available register of births recorded a oral intercourse with two male undercover operative Phillis McGuiness remained a ‘male person’s sex at birth, based on the restrictive police officers in Darlinghurst. Both Street CJ person’ for the purposes of the Act. biological test, and changes were only possible and Mathews J were anxious to point out that if there had been a clerical error, a process boorish – judgment, His Honour claimed Corbett was not a binding authority on them, Harris has shaped the way transsexual people that could cause grave embarrassment to a 17 9 and in any event it was not a criminal case. have been treated by Australian law ever that ‘the pastiche of femininity’ exhibited transsexual person if their birth sex became Although R v Tan was a criminal case, Mathews since. In Secretary of Department of Social by Ashley had nearly fooled him, but under known to those around them.14 New birth J dealt it short shrift, saying it was just an Security v SRA,23 the Harris test was imported ‘closer and longer examination in the witness certificates, required for passport applications, application of the rule in Corbett, and there from criminal law into social security law. In box…the voice, manner, gestures and pension insurance, university enrolment and attitudes became increasingly reminiscent was ‘little, if any, independent consideration SRA, some kind of surgery was considered public service employment, were not issued 18 10 of the issues relating to transsexuals.’ necessary in order for a transsexual person of the accomplished female impersonator.’’ to post-operative transsexuals, like April to be considered a member of their acquired Despite her operation and hormone Ashley.15 It was a low point in the history of In Harris, Her Honour (with whom Street CJ sex. Black CJ acknowledged that there were treatment, Ashley was deemed not ‘naturally the common law. agreed) found that, in determining criminal capable of performing the essential role of a problems with this, but held that ‘a line has woman in marriage’,11 whatever that might III. The law in Australia: be, and the marriage was held to be void. towards a broader test Despite her operation and hormone treatment, For the purposes of marriage, a person’s sex was to be determined by the physical Corbett v Corbett was a marriage case, Ashley was deemed not ‘naturally capable of characteristics that they exhibited at birth, and the heightened tension around that performing the essential role of a woman in and no subsequent changes could affect institution arguably coloured the judgment that determination. of Ormrod LJ, leading English jurisprudence marriage,’ whatever that might be ... 34 to be drawn somewhere.’24 Lockhart J also His Honour conclusively rejected both person’s self-perception as a man or a issue a Gender Recognition Certificate, with regretfully adopted this line, noting: propositions. With regard to the first, His woman; the extent to which the person which the applicant can get a new birth Honour said while he accepted its truth, has functioned in society as a man or a certificate, which can be used in all the ways A transsexual who genuinely regards nevertheless ‘ancient Christian law’ provided woman; any hormonal, surgical or other discussed above. As a result, transsexuals in himself or herself as having achieved no guidance on how to determine a person’s medical sex reassignment treatments the United Kingdom can finally be accepted the new sex must find life extremely sex for the purposes of marriage. With regard the person has undergone, and the as members of the sex to which they always difficult. Judicial opinions in this to the second proposition, His Honour also consequences of such treatment; and felt they belonged. area of the law must be liberal and rejected the necessary connection between the person’s biological, psychological and Yet it is worth comparing Australian law’s understanding, guided by the signposts marriage and procreation, citing examples of physical characteristics at the time of tolerance and understanding with the of what is in the best interests of infertile couples with valid marriages.29 the marriage.31 society and the transsexual. They do not narrow-mindedness of Corbett, and noting conflict in the case of the post-operative Instead, His Honour found that ‘man’ and Chisholm J’s judgment was upheld by the Full that human rights legislation is not always 32 transsexual, but in my opinion the ‘woman’ ought to be given their ordinary Court of the Family Court of Australia. necessary for the law to protect all who come conflict still exists in the case of the contemporary meanings, and so the list before it from injustice. Unlike the European pre-operative transsexual.25 of criteria to take into account when IV. The current state Court of Human Rights, the NSW Court of determining a person’s sex was not limited of the law Criminal Appeal did not base its objections to physical criteria, even for the purposes of to Corbett on human rights legislation, nor Secondly, the Court made clear, as in Harris, The situation in the United Kingdom has marriage.30 His Honour said: did the Family Court of Australia. To its credit, that it was not determining anything with finally changed as a result of several appeals 26 the common law in Australia has largely regard to marriage. That bridge was finally To determine a person’s sex for the to the European Court of Human Rights 27 managed to recognise and protect the rights crossed in Re Kevin. In that case, Chisholm J purpose of the law of marriage, all based on the European Convention on of transsexual people even without human definitively demolished Ormrod LJ’s restrictive relevant matters need to be considered. Human Rights.33 In 2004 the UK Parliament rights legislation. biological test. At the heart of Chisholm I do not seek to state a complete list, passed the Gender Recognition Act. Under J’s judgment was the question of whether or suggest that any factors necessarily the Act, transsexual people can apply to As Street CJ said back in 1988, ‘the time has marriage was special in the sense that a have more importance than others. a Gender Recognition Panel for a Gender finally come when the beacon of Corbett different test from that in Harris and SRA However, the relevant matters include, in Recognition Certificate.34 They must provide will have to give place to more modern ought to be adopted. my opinion, the person’s biological and evidence they that have been diagnosed navigational guides to voyages on the seas of 36 His Honour considered two arguments for physical characteristics at birth (including with gender dysphoria, have been living in problems thrown up by human sexuality.’ having a special test for marriage: ‘(i) that gonads, genitals and chromosomes); their acquired sex for two years or more, marriage is a social institution having its the person’s life experiences, including and intend to continue living in that sex origins in ancient Christian law, and (ii) that it the sex in which he or she is brought until death.35 Evidence of surgery is not is intrinsically connected with procreation.’28 up and the person’s attitude to it; the required. If satisfied, the Panel can then
[ His Honour said ] ‘ancient Christian law’ provided no guidance on how to determine a person’s sex for the To its credit, the common law in Australia has purposes of marriage. [...] His Honour also rejected largely managed to recognise and protect the the necessary connection between marriage and rights of transsexual people even without procreation, citing examples of infertile couples human rights legislation. with valid marriages. 35 36 References 1. Genesis 1:27, New King James Bible. 2. Rachael Wallbank, Young People with Transsexualism: the Contemporary Australian Experience (February 2010) True Colours,
OTO BY Th o m as Sm illie P H OTO ‘[transforming] an anarchic, conflict prone the premise of spreading peace by spreading world into an open, international community democracy and market capitalism.9 Similarly, under the rule of law’.3 Through maintaining Hartmann writes that new global economic influence over international law, the US can regulations are ‘disciplinary neoliberalism’ – shape this system around Western values, forcing states to act according to Western free even without direct involvement. This is market principles rather than protectionist ones.10 In the area of intervention, Over the past two decades, international law based on liberalism simply allows for the West to intervene in order to rhetoric of humanitarian maintain their power. Knox argues that the intervention, the ‘dominant’ position on intervention argues the ‘desirability of spreading democracy and Race and Rivalry: responsibility to protect human rights through war’.11. Thus liberalism becomes linked with Eurocentric modernity, Neoimperialism, intervention and and anticipatory self- recognising the primacy of democracy and defence have been used to inferiority of non-Western regimes. Reid the civilising mission post-1991 argues that liberalism is thus used to attack justify military intervention rivals pursuing different political projects,12 BY JOSH BEALE a Marxist critique which can be applied to in sovereign states. attempts to secularise the Muslim world, discussed below. The Western world have long insisted on Rather than examining the formation of the the institutional power that Barnett and the morality of liberal democratic capitalism UN and its institutions, this paper will discuss Duvall outline; America can ‘establish global The links between liberalism and modernity as the model to be emulated. We speak of the more recent interventions in Kosovo institutions that...further American interest can be regarded as closely linked to democratisation, liberalisation, secularisation and Libya, and the invasions of Afghanistan, and spread American values’.4 Thus Western neoimperialism, barely masked by the of states at a time when rivalries are pushing Iraq, and Georgia, arguing that they are power becomes not just compulsory power, Western concept of the humanitarian America to show that it remains the sole examples of neoimperialism. In particular, the ‘use [of] coercion and intimidation...to intervention or the ‘responsibility to protect’. global power. Over the past two decades, the rhetoric of the ‘Long War’1 on terror is develop and sustain [Western] supremacy’,5 US National Security Advisor (later Secretary rhetoric of humanitarian intervention, the influenced by this doctrine, as seemingly but extends to ‘guidance, and steering’.6 This of State) Rice stated in responsibility to protect and anticipatory incompatible liberalism and conflict converge is evident through the institution of justified 2004 that America self-defence have been used to justify with neorealism to form the neoconservative intervention, the subject of this paper. ‘is taking the military intervention in sovereign states. The foreign policy of the Bush and Obama side of the From a theoretical perspective however, construction of the ‘invadee’ as uncivilised, administrations. America and exceptionalism millions of it is difficult to reconcile this Western primitive, and undemocratic compared with remain crucial to examine in light of the ‘war people in the ideology constructed as peaceful, liberal the morality and freedom-bringing invader on terror’, as does the continued Manichean Muslim world internationalism with the number of conflicts has had a significant impact on international construction of the East/West into good and who long for conducted in the name of liberalism. Reid law. These interventions are linked with evil, heavily influenced by American Christian freedom, who claims instead that liberalism has failed ‘to neoimperialism, as the West enforces its and liberal rhetoric. cherish learning realise its pacific ends’.7 Indeed, the post- views upon those unable to effectively resist. and progress 42 the ‘dominant’ position In contrast to Kosovo and Libya, the intervenor in the 2008 intervention in on intervention argues Georgia was Russia, who claimed grounds of humanitarian intervention. As Knox the ‘desirability of believes, this intervention was evidence of the ‘severely weakened’ position of the US; spreading democracy humanitarian intervention did not occur pursuit of justice with the consent of the US but instead was in Western terms, and human rights committed by one of its rivals.28 Thus it could those who fight for be theorised that the West is beginning to counter-hegemonic, through war’ lose control over international law, following transnational justice are the economic weakening of the 2008 global excluded, while the West is normal channels’23 but nevertheless able to financial crisis, the rise in military power of 17 ‘[shielded] from critical scrutiny’. intervene with its liberal values of peace. America’s rivals, and the decline in political Thus humanitarian intervention is a support for continuing Western interventions. Western construct used as a means of Thirteen years after Kosovo, the Libyan However, while the US criticised Russia for actively promoting liberalism. intervention marked another significant its intervention, it was essentially treated development in Western justification for the as a minor issue rather than one requiring Drawing on an example of humanitarian and who seek economic opportunity’,13 going use of military force. Defined in 2005, the a mass international response. Indeed, intervention – the 1998 NATO-spearheaded on to state that ‘we need to get the truth of responsibility to protect placed the primary perhaps the lack of significant US strategic intervention in Kosovo – the nature of this our values and our policies to the people of responsibility of protecting civilians from interest in Georgia, or the unwillingness to doctrine becomes clear. Glennon writes that the Middle East’.14 This muscular liberalism ICC-level crimes on the nation-state, but the intervene militarily with what Russia deemed the US and NATO abandoned the ‘old rules’ thus entails intervention when a nation is not international community could intervene a domestic issue, meant that the US did not of the United Nations Charter that prevented should the state be ‘unwilling or unable to following a Western notion of governance. 18 take substantial action. Thus Knox’s claim the use of force and instead moved toward 24 Beres, a supporter of these interventions, fulfil this responsibility’ – thus ceding the of dying US power is not made apparent, a system ‘much more tolerant of military writes that ‘the concept of the civilised nation sovereignty of ‘uncivilised’ states to the more especially when the Libyan intervention is intervention but [with] few hard and fast continues to make legal and geopolitical sense civilised West. Security Council Resolution examined. Instead, there are greater grounds rules’.19 While Glennon goes on to argue that in the present world order’,15 highlighting this 1973 permitted the use of all necessary for arguing that US rivals are challenging the ‘little will be lost in the attempt to forge a measures (i.e. force) ‘to protect civilians and neoconservative foreign policy which treats 20 dominance of the West in international law. new system of rules’, it can be noted that 25 some nations as more civilised than others. civilians populations under threat of attack’. the West was simply able to disregard the These three interventions were based Indeed, this Eurocentric neoimperialism relies This resolution passed the Security Council Charter and pursue its own aims. While Cohen on humanitarian grounds. However, the on a stark distinction between modern and despite Russia and China’s general contempt argues that this may be due to the ‘absence link between intervening to help victims primitive nations – 16 justifying spreading towards Western intervention, perhaps of obvious or agreed upon mechanisms of of primitive regimes is closely linked to democracy and peace to those nations due to the strictly limited mandate that the resolving...disputes’,21 if the West can challenge the racialisation of Muslims who do not possess it. Through framing the resolution contained. Yet, Obama, Sarkozy the very base of international law like this, and Cameron stated that ‘it is impossible to throughout the war The construction of the then international law is certainly subject to imagine a future for Libya with Qaddafi in on terror. The Western interpretation of these mechanisms. power’.26 Thus a mandate protecting civilians ‘invadee’ as uncivilised, As Knox writes, states were no longer the was interpreted by the West as allowing ‘possessor of unparalleled sovereign rights’ primitive, and undemocratic for regime change, on the grounds that – where a state failed its obligations, it was ‘regime change would protect civilians’.27 ‘necessary for the international community to The eventual downfall of Qaddafi was compared with the morality 22 intervene’. The West then becomes the judge substantially attributable to NATO support for and freedom-bringing invader of this failure of obligations, as was seen when rebel offensives, again showing that the West it was decided that the situation in Kosovo has had a significant impact retains power over international law as a formed a threat, requiring a response from means of spreading democracy and toppling on international law. the ‘guardians of the system, acting outside... dictators. 43 44 ‘exaggerated form of liberalism...associated The invasion of Afghanistan in 2001 following reinterpreting international law. Iraq and well-intentioned moral exemplar’.44 Yet with the Bush doctrine’29 has been used the terrorist attacks on September 11 displays Afghanistan represent attempts by the US to international law continues to turn against to create a Manichean construction of the a link between the neoimperialism discussed enforce regime change and create secular, Muslims, not the West; Guantánamo Bay world into good and evil – white and Muslim. above and international law as a Western democratic states in the heart of Muslim remains an anomaly of international law International law has been used as both ‘an concept, maintaining Western power. The world in the place of states which posed a created by America and Obama’s drone attempt to justify [as] legal’30 interventions construction of Taliban-led Afghanistan as threat to Western power. assassinations are increasing. Thus Chomsky’s in Afghanistan and Iraq, and as a means of an ‘ongoing threat’ to security35 displays the view that we must apply the same standards The war on terror has now diversified from ensuring the Western democratic model ease by which the US constructed the state to ourselves as we do to others45 becomes the offensives outlined above to a campaign remains at the heart of international law. of Afghanistan as a threat requiring a military the paradox within international law; the of targeted assassinations by American This insistence on Western values suggests response, suggesting that the indeterminacy West as freedom-bringers and the East as drones. Beres, supporting these tactics, writes that international law is a construct which of international law36 allowed for the West freedom-haters, while both employ violence. that ‘under international law, the legitimacy allows realisation of Western political goals. to construct a solution fulfilling their policy of a certain cause can never legitimise the The West remains at the political forefront Nazir’s description of the world as ‘a power goals. Subsequently, the 2003 invasion of use of certain forms of violence’.40 He points of the international community. It retains domain comprised of nation states with Iraq by America’s ‘coalition of the willing’ was vastly differing degrees of power and levels of carried out in pursuit of the war on terror, control over their sovereignty’31 can thus be but without direct approval from the UN. applied to this neoimperial split into West and Despite protests, and the threat that the Chomsky’s view that we must apply the same Islamic, with the Islam world as incompatible coalition’s intervention would be challenged,37 with the West. the US-led West continued the intervention, standards to ourselves as we do to others as it deemed it necessary to fight terrorism Building on this racialisation of Islam as becomes the paradox within international law; on every front. The shaping of the world as too different from Western morality, it Manichean by Bush – ‘either you are with us, is important to examine the relationship or you are with the terrorists’38 – makes these the West as freedom-bringers and between Christianity and liberalism and links between modernity and liberalism clear. the impact it has had on the construction The notion that force is limited by Article 2(4) the East as Freedom-haters, of international law, especially following of the UN Charter is seemingly superseded 9/11. Nabers and Patman examine this by the desire of the West to employ ‘the while both employ violence. relationship in detail, arguing that the strategic use of violence [to] spread freedom, ‘fusion of evangelism and foreign policy progress and peace’39 by extending and activism’32 has led to America adopting political fundamentalism. They believe that to the indiscriminate murder of civilians undeniable influence over the direction of there is a strong connection between the The construction of by Islamist terrorist groups as indicating international law. I have argued that through Manichean construction of the war on terror that America’s ‘civilisational enemies’41 are interventions, including those during the – which Bush characterised as ‘a long struggle Taliban-led Afghanistan primitive, fitting the terms of the discussion war on terror, international law has been between good and evil’33 and Christian on Eurocentric modernity and New Oriental used to maintain Western power. However, fundamentalism. Rojecki echoes these as an ‘ongoing threat’ primitivity outlined above. Yet he supports China’s rising economic dominance, and the sentiments; ‘no other nation would have to security displays drone strikes from a utilitarian perspective: power China and Russia retain on the Security been hopeful enough to try to evangelise for ‘assassination as counter-terrorism is Council poses threats to Western power. As 42 democracy across the Middle East’.34 These the ease by which the reasonable [because] fewer lives [are] lost’ – was seen in the Iraq intervention, the US fundamental Christian values are linked to ignoring the number of civilian deaths caused did not return to the Council to seek explicit foreign policy in a way that further promotes US constructed the by such tactics. Indeed, Nabers and Patman authorisation but instead took law into its the liberal spreading of freedom through argue that there is a risk of America’s ‘political own hands. Despite this, the influence that violence. Western Christian values, especially state of Afghanistan fundamentalism [replicating] the norms the West retains over international law is those of the US, thus play a major role within of Islamic terrorism’.43 As Rojecki writes, significant, in that freedom and democracy shaping the norms of international law. as a threat requiring a ‘photos [of tortured Iraqi prisoners] were are seen as necessary international values. incompatible with an image of the United military response States as a somewhat naïve but nevertheless 46 Bibliography 12. Reid, above n 7, 68. 1. Stilwell, F, Jordan, K, & Pearce, A 2008, ‘Crises, interventions and profits: a political economic 13. Condoleezza Rice, ‘War on Terror: Truth is needed for freedom of defence’ (2004) 70(22) Vital Speeches perspective’, Global Change, Peace & Security (formerly Pacifica Review: Peace, Security and Global of the Day 674, 676. Change), vol. 20, no. 3, pp. 263-274 14. Ibid. 2. Powell, E J 2013, ‘Islamic Law States and the International Court of Justice’, Journal of Peace Research, 15. Louis René Beres, ‘After Osama bin Laden: Assassination, Terrorism, War, and International Law’ (2011) vol. 50, no. 2, pp. 203-217 44(1) Case Western Reserve Journal of International Law 93, 132. 3. Adamson, F 2006, ‘Crossing Borders: International Migration and National Security’, International 16. See Knox, above n 11, 112. Security, vol. 31, no. 1 (Summer), pp. 165-199 17. Nancy Fraser, ‘Who Counts? Dilemmas of Justice in a Postwestphalian World’ (2009) 41(S1) Antipode 4. Chaudhuri, A 2012, ‘Multiculturalism, minoritization and the War on Terror: The politicization of 281, 289. Hinduism in North America’, Journal of Postcolonial Writing, vol. 48, no. 3, pp. 252-264 18. See Charter of the United Nations art 2(4). 5. Connolly, J, & Falkoff, M 2011, ‘Habeas, International Asymmetries, and the War on Terror’, Seton Hall 19. Michael J. Glennon, ‘The New Interventionism: The Search for a Just International Law’ (1999) 78(3) Law Review, vol. 41, pp. 1361-1396 Foreign Affairs 2, 2. 6. Conversi, D 2008, ‘’We are all equals!’ Militarism, homogenization and ‘egalitarianism’ in nationalist 20. Ibid 3. state-building (1789-1945)’, Ethnic and Racial Studies, vol. 31, no. 7, pp. 1286-1314 21. Harlan Grant Cohen, ‘Finding International Law, Part II: Our Fragmenting Legal Community’ (2012) 44(4) 7. Giroux, H 2004, ‘War on Terror: The Militarising of Public Space and Culture in the United States’, Third New York University Journal of International Law and Politics 1049, 1050. Text, vol. 18, no. 4, pp. 211-221 22. Knox, above n 11, 119. 8. Guru, S 2012, ‘Under Siege: Families of Counter-Terrorism’, British Journal of Social Work, vol. 42, pp. 1151-1173 23. Ibid 124. 9. Kidane, W 2009-2010, ‘The Terrorism Bar to Asylum in Australia, Canada, the United Kingdom, and the 24. Geir Ulfstein & Hege Føsund Christiansen, ‘The legality of the NATO bombing in Libya’ (2013) 62(1) United States: Transporting Best Practices’, Fordham International Law Journal, vol. 33, pp. 300-371 International and Comparative Law Quarterly 159, 161. 10. Lentin, A 2012, ‘Post-race, post politics: the paradoxical rise of culture after multiculturalism’, Ethnic and 25. Cited in Ulfstein, above n 24, 161. Racial Studies, DOI:10.1080/01419870.2012.664278 26. Cited in Ulfstein, above n 24, 165-6. 11. Moran, A 2011, ‘Multiculturalism as nation-building in Australia: Inclusive national identity and the 27. Ulfstein, above n 24, 168. embrace of diversity’, Ethnic and Racial Studies, vol. 34, no. 12, pp. 2153-2172 28. Knox, above n 11, 127. 12. Schulman, S 2009-2010, ‘Victimized Twice: Asylum Seekers and the Material Support Bar’,Catholic 29. Corinna Mullin, ‘The US discourse on political Islam: is Obama’s a truly post-’war on terror’ University Law Review, vol. 59, pp. 949-964 administration?’ (2011) 4(2) Critical Studies on Terrorism 263, 264. 13. Shome, R 2012, ‘Mapping the Limits of Multiculturalism in the Context of Globalization’, International 30. Knox, above n 11, 112. Journal of Communication, vol. 6, pp. 144-165 31. Pervaiz Nazir, ‘War on terror in Pakistan and Afghanistan: discursive and political contestations’ (2010) 14. Walsh, J 2012, ‘The marketisation of multiculturalism: neoliberal restructuring and cultural difference in 3(1) Critical Studies on Terrorism 63, 64. Australia’, Ethnic and Racial Studies, DOI:10.1080/01419870.2012.720693 32. Nabers, above n 2, 169. 33. See Nabers, above n 2, 175. REFERENCES 34. David Brooks, ‘In Iraq, America’s shakeout moment’ New York Times (New York), May 18 2004, A23, cited 1. Tariq Amin-Khan, ‘New Orientalism, Securitisation and the Western Media’s Incendiary Racism’ (2012) in Andrew Rojecki, ‘Rhetorical Alchemy: American Exceptionalism and the War on Terror’ (2008) 25(1) 33(9) Third World Quarterly 1595, 1596. Political Communication 67, 67. 2. Dirk Nabers & Robert G. Patman, ‘September 11 and the rise of political fundamentalism in the Bush 35. Michael Byers, ‘Terrorism, the use of force and international law after 11 September’ (2002) 51(2) administration: domestic legitimization versus international estrangement?’ (2008) 20(2) Global Change, International and Comparative Law Quarterly 401, 408. Peace & Security 169, 170. 36. See, for eg, Susan Scott, International Law in World Politics (Lynne Reiner Publishers, 2nd ed, 2010) 122. 3. Ibid 171. 37. See especially Advice re. Iraq Resolution 1441 from Baron Peter Goldsmith to Prime Minister David 4. Michael Barnett & Raymond Duvall, ‘Power in International Politics’ (2005) 59 International Organization Cameron, 7 March 2003, 13. 39, 63. 38. Cited in Nazir, above n 31, 70. 5. Ibid 62. 39. Nazir, above n 31, 65. 6. Ibid 57. 40. Beres, above n 15, 119. 7. Julian Reid, ‘War, Liberalism, and Modernity: The Biopolitical Provocations of ‘Empire’’ (2004) 17(1) 41. Ibid 130. Cambridge Review of International Affairs 63, 63. 42. Ibid 98. 8. Mehdi Hasan, ‘More telling than the PM’s cynical speech was Labour’s response to it’ New Statesman (London), 14 February 2011, 16. 43. Nabers, above n 2, 182. 9. Reid, above n 7, 66. 44. Andrew Rojecki, ‘Rhetorical Alchemy: American Exceptionalism and the War on Terror’ (2008) 51(2) Political Communication 67, 67. 10. Eva Hartmann, ‘The Difficult Relation between International Law and Politics: The Legal Turn from a Critical IPE Perspective’ (2011) 16(5)New Political Economy 561, 564. 45. Cited in Mullin, above n 29, 273. 11. Robert Knox, ‘Civilizing interventions? Race, war and international law’ (2013) 26(1) Cambridge Review of International Affairs 111, 112. 48 We need to communicate to our politicians what we want. We want Australia to support human rights. We want our politicians to abide by international law and human rights standards. We want an effective and humane way of processing these desperate people who want to live peacefully and often wish to work to contribute to the Australian economy; to humanely process those who do not deserve to be treated in a sub-human way in detention centres. We want to say no to offshore processing where children are The Faceless ‘Boat People’ imprisoned, families suffer and men would BY BRITTNEY RIGBY rather attempt suicide than live another moment in a place they thought would be safe and different from the country they fled. What kind of person are you? A ‘people has arrived in Australia because her parents We need to think about how desperate these person’, a ‘sports person’, a ‘black person’, want her safe from the tragedy of conflict. We people must have been to board a boat with We need to change the a ‘gay person’? Our individual attributes, never see a news story explaining that fellow their children, often without ever previously stigma attached to whether they be physical, emotional humans have exercised their right to asylum sailing, in the hope of a better life. We want or intellectual, which often reflect only and have migrated to a country in the false to rid asylum seekers of the stigma of being ‘boat people’; a label minor parts of our lives, serve as the fuel belief that it will provide a safe haven; a new identified as ‘boat people’. We do not want for generalisation and categorisation. No home. Instead, we are exposed only to the them to remain faceless. only exacerbating longer are we a unique person who merely ‘boat people crisis’ the media forces down happens to be ‘white’, but instead we have our throats. A ‘crisis’ far removed from the We persecute asylum seekers, simply because political propaganda they are seeking their right to asylum. It is become somebody stripped of individuality realities of the war-torn countries ravaged and unwarranted and classified under a homogenous group by torture, terror and death that the asylum never their fault for being born into a country of ‘white people’. Whilst these labels seekers were (through no fault of their own) of atrocity. What would you do and hope for fear. dehumanise and desensitise, we perceive living in and desperately trying to escape. In if you were in their position? 7,500 innocent such labels as ‘normal’. Rarely can a female our Australian society we unjustifiably exploit people are currently imprisoned in Australian wear a short skirt without being called a ‘slut’ the tragedy suffered by those who journey to detention centres. Over 1,200 of these are and a male wear pink and take pride in his this country on boats. It is only from within children whose detainment can last months appearance without people assuming he is the polished walls of Parliament and safe or even years. The fates of these ‘boat people’ ‘gay’. The ‘individual’ ceases to exist and in confines of our respective homes where are decided by our democratically-elected their place emerges a uniform assembly of we have the audacity to condemn the ‘boat leaders; leaders who do not know each faceless persons. Sadly, the ‘boat people’ people’ to lives of misery. individual story; leaders who treat all of the construct reflects this trend in labelling. individual asylum seekers as one We are compressed by social conditions homogenous ‘boat people’ category. Our Media outlets rarely provide a glimpse into that amplify differences and generate a Prime Minister should be visiting the people the lives of individuals seeking asylum. News fear of the unknown. How can we amend detained, both on the Australian mainland stories are presented to us, often unwittingly, the asylum seeker issue and change the and offshore. Our politicians should be less in the form of selected video footage for the discourse surrounding it when governments concerned with political power and more purpose of a ‘better story’ or to champion are indifferent towards human life because concerned with human rights. Our current a specific political party’s ideals. Seldom are they are more concerned with their re- handling of asylum seekers and ‘solutions’ to the plights of real people conveyed – and if election than the rights of humans to have the ‘problem’ are unjust and circular. It is up they are, all we see is a glimpse. We never life and liberty? to us to push for effective reform. It is up to hear a news report about a little girl who us to strive for justice. 50 The plight of asylum seekers deserves open of those outside the wall- those who have discussion in our homes, our workplaces, sought asylum- from the awareness of those amongst friends, family and colleagues. It Australian citizens inside the wall. This wall has to become an issue we are all actively has obstructed our view from the realities engaged in, rather than passively exposed of the so-called ‘boat people’; a wall only to through mediums that only publish conquerable by those passionate enough the limited information the government to climb it. It is only after climbing this wall purposefully feeds us. Media are currently when we can empathise with asylum seekers banned from entering detention centres and become vessels for change. on Manus Island and Nauru. How can we We need to change. We need to change expect to be informed of the realities of how we think about asylum seekers. We these offshore processing centres when our need to change Australia’s political views government restricts access to reporters about asylum seekers. We need to change and subsequently the public at large? We the stigma attached to ‘boat people’; a label deserve to know what is happening and how only exacerbating political propaganda and refugees are being treated. We ought to be unwarranted fear. Offshore processing has reminded of the humanity of these people dehumanised and criminalised these innocent the media has made faceless. In essence, people who are only trying to protect their our awareness has been imprisoned by families. Asylum seekers are not toys, but our government. We have had a tall wall human beings entitled to freedom. Seeking built around us; a wall of sturdy and cold asylum is not illegal. ‘Boat people’ are human. sheath which strengthens with time. A wall which keeps separate the relational being
Sub-ordination – 21 years later BY COLIN FONG*
In 1992, Julia Baird1 and I wrote an article Unfortunately and ironically, there are no titled ‘Sub-ordination’,2 which outlined the practising female Anglican priests in the background to the struggle in enabling dioceses of Sydney, Ballarat, The Murray women to be priested in the Anglican and North West Australia. Many capable Church in Australia. Sydney women have left Sydney and gone to be priested elsewhere in Australia.4 Some Since then about a quarter of all Australian people have become disenchanted with the Anglican priests are female. In one sense a church on this subject, they have left the wag could suggest: “You’ve come a long way, church completely. baby!” From the middle of 2013, there are now four female Australian Anglican bishops.3 51 52 One Anglican male priest once suggested that In the early years of MOW’s foundation there to ordain a female was akin to ordaining a was a bit of pushing and shoving. Some MOW meat pie.5 members demonstrated outside and within synods with some singing and chanting, some The irony hinted at earlier is poignant since Australian members travelled to London and a lot of lobbying from the Movement for the demonstrated at the Lambeth Conference Ordination of Women (MOW) originated in which are decennial assemblies of bishops of Sydney and one of its founders was Dr Patricia the Anglican Communion convened by the Brennan, died on 6 March 2011.6 Last year, a Archbishop of Canterbury.14 book was published outlining the history and struggle for Anglican women’s ministry and Some church people argue about the dedicated to Brennan.7 centrality of scripture in the way they conduct their lives. Yet we all like to select In November 2013, MOW held a conference the bits which suit us. The scriptures talk to celebrate the 20th anniversary of the 1992 REFERENCES about divorce and for centuries the church priesting of Anglican women in Australia.8 has censured divorcees, yet today even in 1. Currently a respected columnist with the Sydney Morning Herald Unfortunately during the conference we Moore College you have divorcees on staff. 2. Polemic, Volume 3, Issue 1, May 1992 pp 46-50 heard the English synod rejected the Leading evangelical Sydney churches have had 3. Kay Goldsworthy (Perth, 2008), Barbara Darling (Melbourne, 2008), Genieve Blackwell (Wagga Wagga, proposal for female bishops, by the divorced priests. Senior evangelicals have had 2012), Alison Taylor (Brisbane, 2013) narrowest of votes.9 gay offspring yet the church regularly pillories 4. Diane Nicolios was appointed in charge of women’s ministry within the Sydney Diocese, and within a If you believe you have gifts, but cannot the existence of gays. number of years resigned to become a priest in Melbourne. exercise them, how would you feel? The 5. Attributed to Father Ian Herring and the title of a film: Fully ordained meat pie, Film Australia, 1987 In 2011 Moore College established the scriptures already suggest that individuals http://www.youtube.com/watch?v=t5HSFvCLyS0 Priscilla and Aquila centre which aims to should utilise the gifts we are given.10 6. Apart from her involvement with MOW, Brennan was in charge of the Sexual Assault Unit at Liverpool encourage and promote further thinking However the ability of being a priest has Hospital and subsequently renamed in her honour as the Brennan Unit. Part of the plaque installed about the practice of Christian ministry by in the Unit reads: “Dr Patricia Brennan had boundless energy and fierce drive and determination. She resistance within some parts of the women, in partnership with men. Is there campaigned vigorously for social justice and prevention of interpersonal violence. She had a creative Australian Anglican Church. anywhere a debate about the possibility mind and a quirky sense of humour which enabled her to overcome obstacles others would find Our prime minister, Julia Gillard scored of female priests? This is almost akin to insurmountable.” enormous kudos by labelling the leader of the contemporary debate we are having 7. Lindsay, E & Scarfe, J (ed) Preachers, prophets & heretics: Anglican women’s ministry, Sydney, UNSW the Opposition, Tony Abbott, a misogynist.11 in Australia about tax reform without Press, 2012 I would like to suggest perhaps this label considering an increase in the Goods & 8. Johnson, C ‘Women congregate to celebrate ordination’, Canberra Times 21 November 2012 p 7 might be appropriate to parts of the Sydney Services Tax (GST). Increasing the GST is 9. Sherlock, P ‘Why Anglican women can be bishops in Australia but not England’ The Conversation 21 Anglican Diocese. pivotal to increasing revenues. Presently both December 2012 http://theconversation.com/why-anglican-women-can-be-bishops-in-australia-but-not-england-11337 major political parties are excluding increasing I receive an unsolicited publication of Moore the GST. The federal opposition is prepared to 10. I Corinthians 12: 1-31 College, the Anglican college for training future discuss it and if it is an option, claim to take it 11. ‘Transcript of Julia Gillard’s speech’ 10 October 2012 priests in Sydney. It is called Moore Matters to the next federal election in 2016. http://www.smh.com.au/opinion/political-news/transcript-of-julia-gillards-speech-20121010-27c36.html and in the past year and a half I have received or via YouTube http://www.youtube.com/watch?v=SOPsxpMzYw4 about four issues. Yet in not one of these Why have a Priscilla and Aquila centre 12. Brown, M ‘Jensen begs off as deputy consecrates woman bishop’ Sydney Morning Herald 31 March 2012 issues have they acknowledged one of their without considering the full roles women can http://www.smh.com.au/nsw/jensen-begs-off-as-deputy-consecrates-woman-bishop-20120330-1w3ha.html ; graduates, Genieve Blackwell has been made play in church needing women’s gifts? ‘Right Reverend Genieve Blackwell, 50 - 10 questions’ Weekend Australian 5 May 2012 a bishop. I am sure if one their male graduates http://www.theaustralian.com.au/news/features/right-reverend-genieve-blackwell-50/story- e6frg8h6-1226343342822 was made a bishop, this would be yelled from the rooftops! Blackwell’s appointment has 13. ‘Tribute to Archdeacon Genieve Blackwell’ New South Wales Parliament Legislative Assembly 12 Parliamentary debates 6 March 2012 p 9021 https://www.parliament.nsw.gov.au/prod/parlment/ been noted in the secular media and even *Sessional lecturer, University of New South Wales, hansart.nsf/V3Key/LA20120306052?open&refNavID=HA4_1 in the New South Wales parliament.13 Faculty of Law 14. See the front cover of Lindsay, E & Scarfe, J (ed) Preachers, prophets & heretics: Anglican women’s ministry, Sydney, UNSW Press, 2012 54 of divine principles, but on a fabric of of state action and acquiescence; whereas rational acts, woven through a multiplicity the deductive emphasises opinio juris as it of relations over time”.5 The resulting focuses primarily on statements rather than ambiguities have led some academics actions, and was heavily relied on in the to label customary international law as Merits decision in Nicaragua.12 “doctrinally incoherent”,6 and “behaviourally Though claiming to adopt an approach epiphenomenal”,7 the latter phrase coined that considers state practice and opinio to describe the game theory view that juris in equal measure, the ICRC study in what appears to be states’ compliance with reality appears to lean toward a deductive international law is in fact nothing but an approach, with extremely little evidence of exercise in self-interest, with co-operation state practice that could not equally be said occurring only where it is advantageous to to be evidence of opinio juris. While some all parties.8 That view, however, tends to influential theorists have endorsed such discount the importance of opinio juris (see methods as helpfully progressive,13 ultimately definition below) as a legitimating force it is states’ acceptance of the study that will in customary international law, while the THE ICRC CUSTOMARY LAW STUDY: determine its future influence. Here we see concerns about ambiguities in the law are scepticism of the way the study conflates the exactly what this study aims to address. A SMALL STEP TOWARDS MORE two criteria, with the United States retorting Given the diversity of opinions that exist on that opinio juris cannot “simply be inferred HUMANE WARTIME PRACTICES? customary international law, the theoretical from practice”.14 Henckaerts (co-author of the BY DANIEL REYNOLDS* assumptions that form the backdrop of the study) responds to this with the justification ICRC’s approach to the study are hugely that without a clear mathematical threshold important – if not determinative – as to the of how “extensive and uniform” state practice The International Committee of the Red • The study’s methodology, in particular validity of its conclusions. Some aspects of has to be, the density of practice shown will Cross Customary Law Study1 is a 5,000 page, the choice of legal materials in this have not been contentious, such as the depend instead on the subject matter, and seven-kilogram document reporting on the establishing state practice and Statute of the International Court of Justice’s therefore sparse practice is no barrier to current status of customary international opinio juris2; characterisation of customary international establishing a customary rule if its relevance humanitarian law. It was published in • Its legal conclusions, using its rule law as “a general practice accepted as law,”9 arises only sporadically:15 an argument with 2005 after 10 years of extensive research against bombardment3 as a case study or its widely accepted dual criteria of state some juridical support,16 but still lacking and consultation with experts from nearly for the robustness of its results; and practice (usus) and the belief that such wholesale endorsement by states. 50 countries. Despite these herculean practice is required, prohibited or allowed, proportions, the study has been the subject • Critical reception of the study, The practical result of all this is that the depending on the nature of the rule, as a of serious criticism by governments, considering the responses of states selection of materials used by the ICRC to matter of law (opinio juris sive necessitatis).10 international lawyers and judges, while and legal professionals, which in turn establish customary international law rules receiving lukewarm acceptance in other draw upon practical, jurisdictional, Beyond these settled principles, the ICRC is arguably dubious, with an almost exclusive contexts. As customary law is the most institutional and motivational was faced with a theoretical decision focus on ‘verbal’ materials, such as military significant source of international law observations about the study. between adopting an inductive (or manuals and treaties, at the expense of outside of treaties – given its capacity to bind traditional) approach to establish the materials outlining ‘physical’ state practice. countries despite their non-ratification of METHODOLOGY existence of customary international law The use of treaty texts is perhaps the least any protocol – and as the ICRC plays such a rules, or a deductive(or modern) one.11 problematic of these, as the ICJ considered The ICRC project was bound to encounter central role in the general administration of The inductive approach tends to emphasise in the North Sea Continental Shelf Cases that difficulties from the start, as customary international humanitarian law, such a report state practice, and was evident in Lotus the degree of ratification of a treaty could international law is an inherently has the potential to be extremely significant. where the Permanent Court of International be relevant to the assessment of customary contentious area, laden with “deficiencies, In light of this, critical evaluation of this study Justice inferred a general custom about international law.17 The use of military loopholes, and ambiguity,”4 and resting is crucial, and will be carried out here having objective territorial jurisdiction over ships manuals, however, is a far more vexed “not on a rock-solid natural law basis regard to three key aspects: on the high seas from previous instances issue, for two key reasons: the first is that 55 56 manuals are often relied on in the study as a which forbids as indiscriminate “an attack substitute for physical state practice, posing by bombardment by any method or means challenges for countries such as Germany, which treats as a single military objective whose military manual18 is extremely detailed, a number of clearly separated and distinct but whose military engagement since 1945 military objectives located in a city, town, has been approximately zero.19 Secondly, the village or other area containing a similar use of military manuals to establish opinio concentration of civilians or civilian objects”.24 juris is also questionable, as practice that is Similar wording was also inserted into the reflected in manuals is often based simply on draft of Article 26(3)(a) of Additional Protocol government policy, and not a sense of a legal II (hereafter ‘APII’), however this version of f ro m www. icrc . or g P H OTO obligation, thus falling short of the threshold the provision failed to amass enough votes.25 to give rise to a customary rule.20 Proponents On the face of it, it would appear that this of the study retort that military manuals rule has gained near-universal consensus constitute a useful second-best option where and can reasonably be considered to be state practice is limited or non-existent, and customary law. However, such a conclusion that many of these so-called verbal acts in overlooks several factors, the first of which fact describe practice in actual wars anyhow;21 is the extent of ratification of API. Anderson but this assumes – rather than demonstrates describes this as the “elephant in the room”, – compliance on the battlefield, and also fails the fact that the study tends to proceed as if to disprove the opinio juris objection. API has been universally accepted, whereas at LEGAL CONCLUSIONS the time of the study’s publication, it in fact had 163 parties. This might seem like a good The vast majority of the Geneva Conventions’ enough majority, but considering that the list provisions are considered to be customary,22 of 29 non-parties includes India, Indonesia, Secondly, the evidence supposed to attacked separately”,29 a semantic sleight of and given that these conventions anyhow Pakistan, Iraq, Iran, Israel, Turkey and the support the existence of the rule is often hand which shifts the test from an objective enjoy near universal ratification (195 parties), United States, and that the reservations of questionable value. As a preliminary consideration of separation to a subjective the study focussed instead on issues arising made even by ratifying countries are often observation, not a single piece of evidence consideration of distinct targetability, which in treaties that are only partially ratified, in “dauntingly large”,26 the propriety of simply forming the “Practice Relating to Rule 13” hinges, amongst other things, on the targeting particular the Additional Protocols, the Hague importing the language of API provisions to relates to any physical state practice, a capabilities of the weaponry in question. This Convention for the Protection of Cultural be used as putative rules of customary law problem discussed above in the methodology fairly self-serving definition was also adopted Property, and certain conventional weapons should be called into question.27 section of this article. Specific pieces of by three more major world powers at the treaties. Unable to individually assess all 161 evidence cited are intrinsically flawed too, conference – Canada, Egypt, and the United rules laid down by the study, this article will ...the selection of materials such as the US Air Force Pamphlet28 which Arab Emirates – and these endorsements instead focus on just one as a case study: Rule used by the ICRC to establish quotes Article 24(3) of the 1923 Hague Rules too are cited by the study, misleadingly, as 13. The rule is given in the following terms: of Air Warfare (cast in substantially similar supporting state practice for Rule 13. customary international law terms to Art. 51(5)(a) of API) but states that “Attacks by bombardment by any Finally, in concluding that Rule 13 applies “they do not represent existing customary method or means which treats as a even in non-international armed conflicts, the rules is arguably dubious, with an law”. The study goes on to cite a US proviso single military objective a number of study was forced to concede that APII does to the area bombardment rule stated at the clearly separated and distinct military almost exclusive focus on ‘verbal’ not contain the rule (as mentioned above), Diplomatic Conference on the Reaffirmation objectives located in a city, town, but asserted in the alternative that the rule materials, such as military and Development of International village or other area containing a was inferentially included as it forbids making Humanitarian Law Applicable in Armed similar concentration of civilians or manuals and treaties, at the civilian populations the object of attack – a 23 Conflicts, that the words “clearly separated” civilian objects are prohibited.” prohibition cast in terms reminiscent of the expense of materials outlining meant “at least sufficiently large to permit canonically accepted principle of distinction. This mirrors the wording of Article 51(5) the individual military objectives to be (a) of Additional Protocol I (hereafter ‘API’), ‘physical’ state practice. However, to simply treat the prohibition on 58 ...considering that the list an “edifice of scholasticism”39 that lacks significant practical value, as its exhaustive of 29 non-parties [to the cataloguing of the views of many smaller API] includes India, Indonesia, countries might muddy the waters of what constitutes actual state practice. He also Pakistan, Iraq, Iran, Israel, notes a bias in the selection of experts for the various national consultations, none of whom Turkey and the United States, “bring to the table any significant scepticism about the desirability of an expanding and that the reservations made reach for customary rules”.40 This concern even by ratifying countries are is further bolstered by Meron’s observation that expert committee disbanded in 1999 often “dauntingly large”, the prior to the actual writing of the report,41 leaving the task of compilation essentially in propriety of simply importing the hands of Henckaerts and Doswald-Beck the language of API provisions alone. These observations may go some way towards explaining the over-simplification to be used as putative rules of evident in the framing of much of the state practice material, and the tendency for the N A rc h i v es an d R ecor s Adm inistratio f ro m N ational P H OTO customary law should be study to assert rules as unqualified customary norms where the evidence is often more called into question. controversial. In any case, the study was always intended to be only a starting point area bombardment as coextensive with the findings, leading some critics to argue – suspicious at best and misleading at worst,35 for discussion, and now forms the basis of principle of distinction is poor reasoning both perhaps over-simplistically – that this suggests with Parks also agreeing that this conflict of the ICRC’s online customary international on inductive and deductive grounds, and goes a tacit acceptance on the part of all the interest may have led to the study placing too humanitarian law database:42 despite its directly against the clearly demonstrated other states.31 Yet the critical responses by much weight on its own official statements flaws, and with some deliberative input from intentions of the framers in rejecting the draft lawyers and academics have been diverse as relevant to support the customary nature states and other international actors, the provision containing that exact prohibition. and insightful, and can help to illuminate the of a rule.36 These concerns are valid in part, study’s rules may yet manage to crystallise Finally, the justification that “it has been impact on international humanitarian law as a body that is invested in the progressive as hard and fast custom in years to come. included in other instruments pertaining the study will have in years to come. Before development of international humanitarian Whether state practice will become more also to non-international armed conflicts”30 considering these critiques, it is worthwhile law will likely be motivated to do more than humane as a result remains to be seen. does little to salvage the rule in light of the noting that many commentators have indeed merely ‘tidy up’ the law;37 however the depth foregoing considerations, especially given praised the study as “comprehensive, high- and breadth of scholarly input that went into that two of these are bilateral agreements, level research”32 and “a remarkable feat the study should go some way to assuaging despite its flaws, and with and the third is Amended Protocol II and a significant contribution to scholarship these concerns. Perhaps more defensible some deliberative input the Convention on Certain Conventional and debate”;33 and that the study has is the critique that the ICRC’s stated Weapons, which has only five parties that are also been invoked by both advocates and humble expectation that “governmental from states and other not also parties to APII. judges in ICTY jurisprudence, for instance in experts [will] use the study [merely] as a Hadžihasanović.34 basis for discussions on current challenges international actors, the CRITICAL RECEPTION to international humanitarian law” is Considering the study from an institutional disingenuous and risks provoking a backlash, study’s rules may yet The final aspect that demands evaluation standpoint, Thürer takes issue with the as it suggests a certain detached neutrality is the critical reception of the study. propriety of the ICRC’s dual role as codifier manage to crystallise as from the project that is clearly artificial.38 Interestingly, seven years after the study’s and advocate of international humanitarian hard and fast custom in publication, the US remains the only state law, arguing that the fact that the research is Other critiques hone in on the research to have issued an official response to the presented as an exercise in ‘finding’ the law is process itself. Anderson labels the study years to come. 59 60 REFERENCES 19. Anderson, K. (2005) “My Initial Reactions to the ICRC Customary International Humanitarian Law Study”, Kenneth Anderson’s Law of War and Just War Theory Blog (Nov 15th 2005). * My thanks go to Amrita Kapur, who provided invaluable feedback on an earlier version of this paper. 20. Balgamwalla, S. (2005) “Review of Conference: The Reaffirmation of Custom as an Important Source 1. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, 2 of International Humanitarian Law”, Human Rights Brief 13, no. 2 (2006): 13-16, reporting on a speech volumes, Volume I. Rules, Volume II. Practice (2 Parts), Cambridge University Press, 2005. given by Joshua Dorosin (Assistant Legal Advisor to the US) at that Conference. 2. There are other methodological criticisms to be levelled at the study which will not be discussed here, 21. Henckaerts, J-M. (2006) “ICRC’s Jean-Marie Henckaerts responds to my comments on ICRC Customary such as its treatment of ‘specially affected states’. See International Law Association (2000) “Final Report Law Study”, Kenneth Anderson’s Law of War and Just War Theory Blog (Jan 24th 2006). of the Committee on the Formation of Customary (General) International Law, Statement of Principles 22. International Court of Justice,Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 Applicable to the Formation of General Customary International Law” Report of the Sixty-Ninth July 1996, ICJ Reports 1996, p. 226. Conference, London, Principle 14 23. Rule 13, Henckaerts and Doswald-Beck, supra note 1. 3. Rule 13, Henckaerts and Doswald-Beck, Volume II supra note 1. 24. Additional Protocol I, Article 51(5)(a). 4. Cassesse, A. (1986) International Law in a Divided World, at 285. 25. CDDH, Official Records, Vol. VII, CDDH/SR.52, 6 June 1977, p. 134. 5. Norman, G. and Trachtman, J. (2005) “The Customary International Law Game”,The American Journal of International Law, Vol. 99, No. 3 (Jul., 2005), pp. 541-580. 26. Anderson, supra at 26. 6. Ibid, at 541. 27. Balgamwalla, supra at 27. 7. Ibid. 28. United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, s 5-2(c). 8. Engel, C. and Kurschilgen, M. (2011) “The Coevolution of Behaviour and Normative Expectations: Customary Law in the Lab”, Preprints of the Max Planck Institute for Research on Collective Goods, Bonn 29. United States, Statement at the CDDH, Official Records, Vol. XIV, CDDH/III/SR.31, 14 March 1975, p. 307, 2011/32. paragraph 50. 9. Statute of the International Court of Justice, Article 38(l)(b). 30. Rule 13, Henckaerts and Doswald-Beck, Volume II supra note 1. 10. See for example, International Court of Justice, Continental Shelf Case (Libyan Arab Jamahiriya v. Malta), 31. Bugnion, F. (2004) “The International Committee of the Red Cross and the Development of International Judgment, 3 June 1985, ICJ Reports 1985, pp. 29-30, at para. 27. Humanitarian Law”, 5 Chicago Journal of International Law 191, 211-212. 11. Roberts, A. (2001) “Traditional and Modern Approaches to Customary International Law: A 32. MacLaren and Schwendimann, supra at 18. Reconciliation”, The American Journal of International Law, Vol. 95, No. 4 (Oct., 2001), pp. 757-791. 33. Ibid. 12. International Court of Justice,Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. 34. Prosecutor v. Hadžihasanović and Kubura (Appeal Judgment), IT-01-47-A, International Criminal Tribunal United States of America), Merits, Judgment, ICJ Reports 1986. for the former Yugoslavia (ICTY), 22 April 2008 13. Tasioulas, J. (1996) “In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case”, 35. Thürer, D. (2005) “The Democratisation of Contemporary International Law-Making Processes and the 16 Oxford Journal of Legal Studies 85; Kirgis, F. (1987) “Custom on a Sliding Scale”, 81 American Journal Differentiation of Their Application”, in Developments of International Law in Treaty Making 53 (2005). of International Law 146. 36. Parks, W. (2005) “The ICRC Customary Law Study: A Preliminary Assessment”, Proceedings of the Annual 14. Bellinger, J. and Haynes, W. (2007) “A US Government Response to the International Committee of the Meeting (American Society of International Law) , Vol. 99, (March 30-April 2, 2005), pp. 208-212 Red Cross study Customary International Humanitarian Law”, International Review of the Red Cross, 37. Wolfrum, R. (2005) Developments of International Law in Treaty Making, Rüdiger; Röben, Volker (Eds.). Volume 89 Number 866 June 2007. 38. International Committee of the Red Cross, Customary law study enhances legal protection of persons 15. Henckaerts, J-M. (2007) “Customary International Humanitarian Law: a Response to US Comments”, affected by armed conflict, Press Release No. 05 / 17 (17 March 2005). International Review of the Red Cross, Volume 89 Number 866 June 2007. 39. Anderson, K. (2005) “My Initial Reactions to the ICRC Customary International Humanitarian Law Study”, 16. Eg. In International Court of Justice,The S.S. Wimbledon (1923), PCIJ Series A, No. 1, pp. 1, 28, the PCIJ Kenneth Anderson’s Law of War and Just War Theory Blog (Nov 15th 2005). relied on two precedents only (Panama and Suez canals), to find that the passage of contraband of war through international canals was not a violation of the neutrality of the state. 40. Ibid. 17. International Court of Justice,North Sea Continental Shelf Cases, (1969) ICJ 13 at para 73. 41. Meron, T. (2005) “Revival of Customary Humanitarian Law”, The American Journal of International Law, Vol. 99, No. 4 (Oct., 2005), pp. 817-834. 18. Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992. 42. International Committee of the Red Cross (2011) “ICRC database on customary international humanitarian law: new update”, ICRC Resource Centre, 18-11-2011 News Release 11/233.
61 62 the principle of Giannarelli v Wraith.8 to relax the formality of court ceremonies This contradiction of duty is evidently such as the role of the magistrate as a problematic, representing a conflict of ‘referee’ rather than an active participant, interest that gives the prosecution an is representative of the contrast in purpose inequitable advantage. of lower and higher courts.10 Higher courts represent an ideological practice of law and 3. Police prosecutors are not subject to the justice, while lower courts practice summary same code of practice of behaviour and justice that is ‘not real law’,11 and devoid of professional discipline as members of the ‘traditional due process’.12 legal profession.9 Solicitors and barristers are bound by and face significant Other defendants in the Local Court are penalties for not adhering to their represented by a variety of under-paid professional code of conduct. The police legal-aid lawyers13 and often-inexperienced prosecutor code of conduct is ambiguous solicitors. This is in itself a problem against (see (2) above), and the mechanisms of police prosecutors who have an advantage, (DIS)ADVANTAGE its enforcement are significantly different, as discussed above. The court environment, resulting in different actors in the local designed to reflect traditional courtroom IN LOWER AND HIGHER COURTS court system being held to varying power structures,14 does not remedy the standards for performing similar roles. problem. Most defendants sit furthest of BY TARANG IMMIDI all participants in the court room. Those In short, the Wood Royal Commission said in the dock sit well off to the side of that police prosecutors face a conflict of There is great discrepancy between higher In 1997, the Wood Royal Commission found proceedings, which is a particular problem and lower courts in New South Wales that the independence and impartiality of interest between being impartial to ensure a fair trial, and protecting and aligning with that extends past the most apparent police prosecutors is compromised for three The position of differences such as sentencing powers or the main reasons:2 their peers. The problem is distinct from any seriousness of matters heard. The division conflict of interest defence representation 1. They are answerable to their superiors advantage enjoyed by marks a fundamental difference in court may face, as police prosecutors adhere to a in the police chain of command.3 This operation, public perception and adherence different set of rules that may not be enforced police prosecutors creates a conflict of interest between to traditional notions of how justice is to be as effectively as those for solicitors and the court and their peers, whom they done. 95.9% of criminal hearings take place in barristers. It is my opinion that this problem stands in contrast may be questioning. Regardless of a lower court,1 however, local courts are where still exists in local courts, or that little has police prosecutor’s intention to remain to the position of defendants are given the least equitable been done to remedy it. impartial, the fact that their superiors, chance to defend their innocence. most defendants, who may not be as familiar with the II. DEFENCE IN LOCAL COURTS 4 I. POLICE PROSECUTION courts system, would be biased towards particularly those who protecting another police officer.5 This The position of advantage enjoyed by police As a somewhat lay observer in the Local clouds the impartiality of the prosecutor, prosecutors stands in contrast to the position are self-represented. Courts, it is particularly evident to me that the resulting in unjust interactions between of most defendants, particularly those who relationship between police prosecutors and police officers and the court. are self-represented. These defendants are in the event of self-represented defendants the police officers testifying is significantly generally given a minimal level of guidance, 2. Police prosecutors do not have a legal from the dock. The other consequence of different to that between the officers and resulting in a limited grasp of court room this spatial organisation is that audibility duty like solicitors and barristers do.6 defence lawyers. In my observations, officers terminology, for example, being able to refer is compromised.15 According to the police prosecutor’s code Inaudibility further tended to be openly hostile to defence to the Magistrate properly. These defendants of conduct, prosecutors are required to compromises the position of both self- lawyers’ questioning, at some points are however, unable, on the whole, to present ‘discharge their duties to the Court and represented defendants and inexperienced bordering on ridiculing the questions asked. legally compelling arguments, often times Police Service honestly and impartially.’7 solicitors who may not be familiar with court This is in stark contrast to the elaborate, resorting to an emotional appeal destined Simultaneously, the prosecutor’s jargon, thus putting defendants at further seemingly pre-prepared responses to the to fail in a courtroom. There tends to be a course guides prosecutors to embrace disadvantage in lower courts. prosecution’s questions. preparedness by Local Courts magistrates 64 III. DEFENCE IN HIGHER COURTS judge in higher courts risks the perception representatives. This is a product of the way result of these differing functions has led to of bias, invalidating a trial or hearing.20 in which each court is conducted, a result of the current, inequitable situation. Steps can In higher courts, there exists a more level Self-represented defendants thereby result the function of each tier of the courts system be taken to move towards a more equitable playing field between the defence and in improper court processes, which is in society. As academic Doreen McBarnett adversarial process in lower courts, in my prosecuting counsel. Director of Public particularly problematic in higher courts. argues, higher courts reflect the ideal of opinion, by transferring responsibility for Prosecutions (DPP) and defence lawyers tend the criminal justice system, and exist partly prosecutions to the DPP and ensuring self- to be equally familiar with and confident in IV. DPP PROSECUTION for public consumption, resulting in rigid represented defendants have sufficient addressing the court and interacting with rules of process.23 Lower courts exist to ‘get resources to defend themselves. the judge. All legal professionals involved Prosecutions by the DPP tend to bring the through the list’ and process as many matters in these courts interact with the court on a operation of the court closer to the ideal. as possible in the shortest time possible,24 regular basis, hence are equally capable of First, both prosecutors and defence lawyers resulting in more lax court processes. The interacting with it. in higher courts are bound by the same codes of practice, therefore have the same In contrast, from the perspective of the limits placed on their conduct. Second, any defendant or any lay person, stepping into a special relationship or familiarity a public REFERENCES court room is a daunting experience, due to prosecutor has, is dealt with professionally the immediately perceptible nature of power 1. Kathy Mack and Sharyn Roach Anleu, ‘‘Getting Through the List’: Judgecraft and Legitimacy in the Lower by the court. Prosecutors already have a Courts’ (2007) 16 Social Legal Studies 342, 349. dynamics,16 signs of which saturate the court close working relationship with judges, but room, from the elevated and ornate judge’s 2. New South Wales, Royal Commission into the New South Wales Police Service, Final Report (1997) vol 2, are able to maintain a degree of formality 297. bench to the language used and the ritual and professionalism that ensures that justice 3. Ibid of bowing. In the idealistic perception of is not only done in higher courts, but is the operation of the court room, the judge 4. Ibid 298. also seen to be done.21 Even so, some of and court officers ‘hold a fair monopoly over 5. Nicholas Cowdery, ‘Cowdery seeks take over of police prosecutions’, The Sydney Morning Herald the greatest miscarriages of justice have (Sydney, Australia), 1 May 2010, 1. ceremonies’17 It is through ceremonies, often occurred in some of the highest courts in archaic,18 that power is exuded. The major 6. Royal Commission into the NSW Police Service, above n 3, 297. Australia. Mohamed Haneef was wrongly difference, to me, between lower and higher 7. Royal Commission into the New South Wales Police Service, above n 2, 380. charged and detained on advice given by courts is the relaxing of these ceremonies 8. (1988) 165 CLR 543, 556: “This duty may require the advocate to act to the disadvantage of the client’s the Commonwealth DPP on the basis of case, even if the client instructs to the contrary.” and rules. Thus, given the disadvantage inaccurate information given by the Federal that self-represented defendants are at in 9. Royal Commission into the NSW Police Service, above n 3, 297. Police.22 This is indicative of the fact that lower courts, self-represented defendants in 10. Doreen McBarnet, Conviction: Law, the State and the Construction of Justice (Palgrave Macmillan, 1981) higher courts are not perfect and still face 152. higher courts are at an entirely unacceptable problems such as prosecutorial discretion. disadvantage. While the incidence of such 11. Ibid 153. Higher courts might be better for a fairer trial, defendants is rare, it is not unheard of, 12. Ibid. however they are hugely expensive, and not especially in matters such as bail hearings. 13. Nicholas Cowdery, ‘Dietrich: Why Should the Prosecution Worry?’ (1997) 9(2) Current Issues in Criminal by any means perfect. Justice 163, 167. Self-represented defendants in these courts 14. Pat Carlen, Magistrates Justice (Martin Robertson and Co, 1976) 21. may have been given greater legal advice than V. CONCLUSION in lower courts, higher courts simply lack the 15. Ibid 23. experience of dealing with such defendants to The greatest difference between lower and 16. Harold Garfinkel, ‘Conditions of successful degradation ceremonies’ (1956) 61(5) American Journal of Sociology accommodate them equitably. Fundamentally, higher courts with regard to representation 420, 424. a self-represented defendant will require is the discrepancy of advantage that the 17. Ibid. some degree of leniency or assistance from prosecution has over defendants. In lower 18. McBarnet, above n 10, 160. the judge or magistrate regarding process courts, this arises from the advantage 19. Duncan Webb, ‘The right not to have a lawyer’ (2007) 16 (3) Journal of Judicial Administration 165, 175. and court rules.19 This cannot often occur in police prosecutors have in addition to the 20. Ibid. higher courts as empirically, such rules and disadvantage self-represented defendants 21. McBarnet, above n 10, 153. processes are more strictly enforced in higher are at. Higher courts tend to be a more 22. Peter Hastings, ‘A Lesson for Prosecutors’ [2011]Bar News: Journal of the New South Wales Bar courts, particularly the Supreme Court. The level playing field, with most matters having Association 40, 42. relaxation of rules and assistance from the similar calibre prosecutors and defence 23. McBarnet, above n 10, 153. 24. Ibid. 65 66 The purpose of this piece is to challenge this place in May 2001, when fifty-two men were exclusion of homosexuals from ICL, and I arrested during a police raid of a “Cairo argue that such a construction is inconsistent discotheque” called the ‘Queen Boat’.18 After with the principles of transitional justice and these men were rounded up, Human Rights fails to address the widespread culture of Watch reported that victims were “whipped, impunity attached to such crimes. Although beaten, bound and suspended in painful it would be difficult to indict perpetrators positions, splashed with ice-cold water, and from Egypt for international crimes against burned with lit cigarettes”, or more heinously humanity,11 as Egypt is yet to ratify the “tortured with electroshock on the limbs, Rome Statute,12 this case study is relevant genitals, or tongue”.19 In addition, guards to this piece’s arguments, as the alleged would sometimes encourage “other prisoners crimes committed against homosexual men to rape suspected homosexuals”.20 in Egypt are akin to those committed by Moreover, similar to the Nazi Party, who used Nazi officials over seven decades ago. This “invasive ‘medical’ procedures” designed to situation where history is seemingly repeating alter sexual orientation,21 men arrested for HISTORY REPEATING itself demonstrates the extent to which ICL appearing homosexual in Egypt are “forcibly since the Nuremberg Trials has failed to THE PERSECUTION OF HOMOSEXUAL MEN IN MODERN-DAY EGYPT subjected to anal examinations at the deter crimes of such gravity, and in particular hands of the Forensic Medical Authority”, AND THE STRUGGLE TO RECOGNISE ‘SEXUAL ORIENTATION’ AS A highlights the necessity for ICL to positively an agency of the government’s Ministry of protect people who are persecuted on the GROUNDS OF PERSECUTION UNDER THE ROME STATUTE Justice.22 According to Human Rights Watch: basis of their sexual orientation. As many homosexuals in a variety of countries are Doctors compel the BY MARIE ISKANDER often subjected to severe state-sanctioned men to strip and violence, persecution and torture,13 this piece kneel; they massage, calls on the ICC to consider an expansive dilate, and in some “I used to think being gay was just part of to prosecute perpetrators of crimes against definition of ‘gender’ when interpreting the cases penetrate my life and now I know it means dark cells humanity,5 the Rome Statute has been Rome Statute in order to deter further crimes the prisoners’ anal and beatings. It is very, very difficult to be celebrated for eliminating this requirement of persecution against individuals on the basis cavities in search of gay in Egypt.”1 in relation to all crimes against humanity of sexual orientation. signs that they have except for the crime of persecution.6 This International criminal law (‘ICL’) emerged been “habitually is a step forward for ICL, as it enables the in response to the unimaginable “scale of The persecution of used” in “sodomy.”23 International Criminal Court (ICC) to indict barbarism” committed by Nazi officials during homosexual men in Egypt individuals responsible for perpetrating What is worse is that the Third Reich,2 whereby the Nuremburg and memories of the ‘pink crimes against humanity, regardless of a doctors have also recently Charter and Nuremberg trials codified triangle’ in Nazi Germany discriminatory motive.7 However, the grounds employed “new methods” crimes against humanity into positive ICL.3 of persecution under the Rome Statute8 have The Third Reich began their persecution of involving electricity to Despite their merits, the Nuremberg Charter been construed in a manner which seeks homosexual men immediately following their investigate prisoners’ and Nuremberg trials both failed to adopt to exclude sexual orientation, as Article rise to power, whereby the police were set anuses.24 a holistic approach to the crimes against 7(3) narrowly defines ‘gender’ in a manner to “destroy the homosexual subculture” in humanity committed by the Nazis. This was Furthermore, akin which would preclude homosexuals.9 This Germany by “performing raids” at “exotic particularly the case as the catalogue of to the imprisonment construction of gender in the Rome Statute is events”.14 By a disturbingly similar token, victim groups recognised in the Nuremberg of homosexuals in particularly problematic as homosexuals and agents of the “Vice Squad”15 in Egypt have Charter was “too narrow”, and although concentration camps transsexuals are often subjected to the worst reportedly been involved in conducting “mass homosexuals “suffered group-based attacks under the Nazi regime, form of persecution,10 but under the current roundups” of “men suspected of homosexual by the Nazis”,4 they were not recognised. where the Gestapo interpretations emerging from the Rome conduct”16 following raids conducted at bars Unlike the Nuremberg Charter, which habitually imprisoned Statute they would not be afforded protection and clubs renowned for being frequented seemingly required a discriminatory motive men without any against persecution under ICL. by gay men.17 The most significant raid took 67 68 evidence that they had actually engaged could have been satisfied in this case, as the sentence: “[t]he term ‘gender’ does not when considering the chapeau elements in homosexual “offences”,25 the Vice Squad persecution of homosexuals clearly involved indicate any meaning different from the of persecution in the context of the Rome in Egypt regularly arrest and imprison men conduct such as torture,34 rape35 and arbitrary above”.41 While the inclusion of ‘gender’ as Statute. To be prosecuted under the Statute, “suspected” of engaging in homosexual acts, deprivation of liberty.36 Nonetheless, while a ground for persecution has been hailed the persecutory acts must have been charging them with contravening Egyptian the persecutory conduct by the Egyptian as an achievement for international law,42 conducted “in connection” with other crimes laws prohibiting “debauchery”.26 These men officials was clearly pursued for discriminatory this restrictive definition was intentionally against humanity referred to under the Rome are routinely harassed, beaten and arrested reasons, because persons were targeted constructed to ensure that persecution on Statute or within the ICC’s jurisdiction.52 The based on how they look and walk, the style for their perceived homosexual identity,37 the basis of sexual orientation was high threshold therefore renders persecution of their hair, and even the colour of their the conditions of persecution as recognised not proscribed.43 type crimes to a ‘secondary status’,53 requiring underwear.27 Thus such persecution often under the Rome Statute would not be proven it to be “of the same gravity or severity” as Interestingly, it may be noted that Egypt, merely occurs merely because individuals due to the limited grounds of persecution other crimes enumerated under the Statute.54 among other Arab and Catholic delegates, appear to act “at odds with social norms” in recognised under Article 7(1)(h). This is the Therefore contrary to the ‘fears’ expressed played a dominant role in opposing the particular “norms for expressing gender”.28 case as persecution may only be prosecuted during the negotiations at Rome, “not every inclusion of the term ‘gender’,44 as they under the Rome Statute if it is committed denial of human rights may constitute a Although the political regime in Egypt has feared it would be understood to include on the basis of “political, racial, national, crime against humanity”.55 For this reason, changed since the Human Rights Watch sexual orientation.45 In relation to this, one ethnic, cultural, religious, gender as defined issues pertaining to “marriage equality”, report was published in 2004, frequent media commentator stated that they objected to in article 7, paragraph 3, of the Statute, or for example, would not come within the reports have cited the ongoing existence of the inclusion of the ‘term’ gender because other grounds that are universally recognized ambit of the ICC’s jurisdiction as this form persecution against homosexuals in Egypt.29 In they believed that this would “be a code of as impermissible under international law”.38 of discriminatory conduct does not amount addition, as the principles of Shar’ia law have homosexuals”46 and would subsequently Up until this point, international criminal to persecution as defined by the Rome been codified in the Egyptian constitution, “put them and their lifestyles on the same jurisprudence does not recognise persecution Statute. In order to constitute a crime against it is arguable that there is a likely chance legal footing as married couples”.47 As a on the grounds of sexual orientation.39 As will humanity, acts of persecution in their “overall that persecutory practices will continue, as result, some delegates suggested that the be discussed next in this piece, the narrow consequences must offend humanity in such homosexuality is cited as being inconsistent term “sex” be alternatively adopted, as this definition provided for ‘gender’ is problematic a way that they may be termed ‘inhumane’”.56 with Shar’ia law.30 would confine the definition to the biological as it precludes prosecution of perpetrators For this reason it seems rather futile that the differences between men and women.48 who have persecuted homosexuals. delegations sought to preclude protecting Developing a case against Other delegates however argued that the people from being persecuted on the grounds Egyptian officials for crimes inclusion of the term ‘gender’ would be a A critique of Article 7(3): of sexual orientation, unless their aim was to against humanity more “accurate reflection of the current state a futile definition of ‘gender’ tacitly permit the persecution of homosexuals of international law”, as it would capture As previously noted Egypt has not ratified and transsexuals. “The religious enclave, wrongly elevated to sociological and biological definitions.49 the Rome Statute31 and therefore would statehood by an unthinking international Therefore, the definition in Article 7(3) was In light of Egypt’s persecution of not come within the ambit of the ICC’s community, was responsible for including adopted to “prohibit any interpretation of homosexuals, it is clear that inclusion of jurisdiction, unless the United Nations Article 7(3): the most ridiculous clause in any the term gender as a social construction Article 7(3) has contributed to a culture Security Council referred the matter to the international treaty ever devised.”40 that might encompass sexual orientation”,50 of impunity, where state actors can ICC Prosecutor to investigate.32 particularly as this definition was the only systematically persecute people on the Article 7(3) of the Rome Statute defines Notwithstanding this, in order for persecution one which the “Arab States and others” basis of their sexual orientation, and be ‘gender’ as referring to the “two sexes, to be proved under the Rome Statute, it must were willing to agree to.51 able to escape unscathed and without being male and female, within the context of have been committed in “connection with any reprimanded by ICL. society”. In addition the definition of The definition of ‘gender’ encapsulated act” referred to in Article 7(1) or any crime gender, Article 7(3) includes the following in Article 7(3), however, appears futile within the jurisdiction of the Court.33 This contrary to the ‘fears’ expressed during the negotiations at Rome, “not every denial of human rights may constitute
69 a crime against humanity”. 70 Reading ‘sexual orientation’ homosexual men in Egypt satisfy the grounds as expressed in Article 21(3), it would be as was evident during the negotiations at into the Rome Statute as a of persecution under the Rome Statute, as dubious to suggest that any ambiguities Rome, whereby delegates failed to seize the ground of persecution such persecutory conduct was driven by a inherent in the definition of gender “would opportunity to define gender in a way which motivation to re-establish “gender hierarchy be resolved in favour of discrimination, protects victims who are frequently targeted, Although some delegates were convinced in a context of shifting gender roles”.64 especially in a statute establishing the highest persecuted and tortured on the basis of that the definition of ‘gender’ would preclude international institution of justice”.69 This their sexual orientation or gender identity. sexual orientation as becoming a ground of In addition, while the last sentence of is arguable on the basis that Article 21(3) Although the birth of the Rome Statute and persecution,57 the definition in Article 7(3) Article 7(3) appeared to be an attempt to states that the Statute must be consistent the International Criminal Court marked an adopted language which could be interpreted exclude sexual orientation being read within with international human rights and that the evolution in international law as it sought to include sexual orientation and thereby the Statute’s definition of gender, several law must be applied without any adverse to end impunity for mass atrocities,73 the contribute to the “progressive development scholars have argued that this sentence is distinction of discrimination. Therefore, tacit failure of the international community of international law”.58 “superfluous”.65 This is evident because the this holistic approach to reading gender in to protect homosexuals from persecution sentence merely refers the reader back to Firstly, sexual orientation may be recognised light of other provisions contained in the has contributed to an ongoing culture of the first sentence, which as previously stated, within Article 7(1)(h) as falling within “other Rome Statute would favour an inclusion of impunity. This is most evidently portrayed may be read in a way that accommodates for grounds that are universally recognised sexual orientation as a prohibited ground by the case study detailing the modern- sexual orientation.66 Moreover, while some as impermissible under international of persecution, rather than interpreting the day persecution of homosexuals in Egypt, may have been concerned that the language law”. 59 This ground however may not easily definition of gender as being exclusive. where such crimes and persecutory conduct “within the context of society” would be accommodate for sexual orientation on appears disturbingly similar to the crimes read to accommodate for cultural relativism, Therefore, these approaches demonstrate the basis that “universal recognition” is a committed by the Nazi regime. thereby precluding expansive definitions that while the definition of ‘gender’ in significantly high threshold.60 of gender, Kelly Askin highlights that this Article 7(3) upon first reading appears rather While the Rome Statute deserves positive Alternatively, the inclusion of the language language does not refer to a “specific restrictive, it may be expansively read to allow recognition for eliminating the discriminatory “within the context of society” sought to society” but rather “connotes a normative the ICC to interpret the definition of gender chapeau element from the application of provide sufficient flexibility to the definition approach to society as a whole”.67 Therefore, as including non-discrimination on the basis crimes against humanity, the restrictive which would thereby leave it open for the within this framework the ICC may consider of sexual orientation, thereby avoiding a definition of ‘gender’ adopted in Article 7(3) ICC to interpret the definition of gender reading the definition of ‘gender’ in light “regression in the law”.70 should be read expansively, reformed or based on the “circumstances before it”.61 The of the context of the international society’s abolished for the Statute to be considered term ‘gender’ in the context of the language conception of gender. Conclusion complete. The justification for this argument used in Article 7(3) may be read in a way is based on the facts that such an exclusive Furthermore, by adopting a plain reading “Hatred which expresses itself in persecution that suggests that individuals who do not definition of gender is not consistent with of the Rome Statute’s definition of gender must draw condemnation and punishment as behave according to “a prescribed gender the principles of transitional justice, as and analysing the negotiation history, it a crime against humanity, otherwise hatred role”62 may be afforded protection against it contributes to a culture of impunity does not appear that “sexual orientation” wins the day.”71 persecution under the Rome Statute. This with regards to crimes committed against was explicitly excluded from the meaning approach to “gender-based violence” was Crimes against humanity, committed on the individuals on the basis of their sexual of ‘gender’. This therefore provides further taken by the United Nations Human Rights grounds of sexual orientation, have existed orientation. Ultimately, it is not appropriate scope for the ICC to expansively read the Council which highlighted that persecution before the birth of ICL and date back to the for the international community or the ICC prohibited grounds of discrimination as on the grounds of gender may be “driven atrocities committed by the Nazi Party.72 to tacitly permit such “egregious” crimes to including sexual orientation.68 by a desire to punish those seen as defying Despite this, ICL has been slow to positively occur,74 or to allow the horrors of history to gender norms”.63 This reading would thereby Finally, it may be argued that when protect homosexuals and transsexuals, continuously repeat itself. support the finding that the crimes against considering the general principles of ICL
delegates failed to seize the opportunity to define gender in a way which protects victims who are frequently targeted, persecuted and tortured on the
71 basis of their sexual orientation or gender identity. 72 REFERENCES 1. Scott Long, ‘In A Time of Torture: The Assault on Justice in Egypt’s Crackdown on Homosexual Conduct’, 38. Rome Statute, art (7)(1)(h). (Report, Human Rights Watch, 2004) 1. 39. See Explanatory Memorandum of the (German) Code of Crimes against International Law (BT-Drucks. 2. Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (Penguin Books, 3rd ed, 2006) 14/8524) 22. 207. 40. Robertson, above n 2, 338. 3. Alycia T. Feindel, ‘Reconciling Sexual Orientation: Creating A definition of Genocide that includes Sexual 41. Rome Statute, art 7(3). Orientation’ (2005) 13 Michigan State Journal of International Law 197, 198. 42. Cate Steains, ‘Gender issues’ in Roy S. Lee (ed), The International Criminal Court: The Making of the Rome 4. David Luban, ‘A Theory of Crimes Against Humanity’ (2004) 29 Yale Journal of International Law 85, 100. Statute - Issues, Negotiation, Results (Kluwer Law International, 1999) 357, 372. 5. Cameron Charles Russell, ‘The Chapeau of Crimes Against Humanity: The Impact of the Rome Statute of the 43. Stephanie Farrior, ‘The Rights of Women in International Human Rights Law Textbooks: Segregation, International Criminal Court’ (2011-12) 8 Eyes on the ICC 25, 36. Integration or Omission?’ (2003) 12 Columbia Journal of Gender and Law 587, 598. 6. Ibid 53-4. 44. Joseph, above n 9, 67; Johan D. Van Der Vyver, ‘Civil Society and the International Criminal Court’ (2003) 2(3) 7. Ibid. Journal of Human Rights 425, 432. 8. Statute of the International Court of Justice art 7(1)(h) (‘Rome Statute’). 45. Valerie Oosterveld, ‘The Definition of ‘Gender’ in the Rome Statute of the International Criminal Court: A Step 9. Joshua H. Joseph, ‘Gender and International Law: How the International Criminal Court can bring Justice to Forward or Back for International Criminal Justice?’ (2005) 18 Harvard Human Rights Journal 55, 76. Victims of Sexual Violence’ (2009) 18 Texas Journal of Women and the Law 61, 67-68. 46. Steains, above n 44, 372. 10. Ibid 96-7. 47. Roger S. Clark, ‘Crimes Against Humanity and the Rome Statute of the International Criminal Court’ in Mauro 11. An exception to this would be if the United Nations Security Council referred the matter to the Prosecutor of Politi and Giuseppe Nesi (eds.) Rome Statute of the International Criminal Court (Ashgate Publishing Limited, the International Criminal Court under Chapter VII of the United Nations Charter. See Rome Statute art 13(b). 2001) 75, 81. 12. Coalition for the International Criminal Court, ‘Global Coalition Calls on Egypt to Move Forward on ICC 48. Steains, above n 44, 373. Commitment’ (Media Release, 23 May 2013) 1 49. Ibid.
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