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,