The doctrine of command responsibility in the midst of war : legal fallacy or reflection of reality

The history of war is blighted with astonishing reminders of man’s ability to cast his sense of humanity aside and inflict unspeakable harm upon one another. The ruthless bombing of Dresden, the callousness of the Nazi concentration camps and the massacre of the Tutsis are but a few of the atrocities that have haunted our past. In response to these atrocities, society has imposed an ever-increasing number of laws and rules to regulate warfare. Amongst these is the doctrine of command responsibility. The doctrine of command responsibility states that a commander is criminally liable for the crimes of his subordinates if he knew or should have known of their crimes. This paper will examine whether the doctrine is an appropriate and realistic legal standard to hold commanders accountable to or whether the doctrine is more a reflection of social sentiment and legal rhetoric. If the doctrine, and indeed the law of war in general, is unrealistic then the law cannot fulfil its purpose - that is, the prevention of atrocities. Instead of being solely a reflection of moral authority and social sentiments the law must also be a tool that guides and shapes the decisions and actions of the military through the chaotic and brutal nature of war...

The BRICS and the responsibility to protect : lessons from the Libyan and Syrian crises

The emerging ‘responsibility to protect’ (R2P) principle presents a significant challenge to the BRICS (Brazil, Russia, India, China and South Africa) states’ traditional emphasis on a strict Westphalian understanding of state sovereignty and non-interference in domestic affairs. Despite formally endorsing R2P at the 2005 World Summit, each of the BRICS has, to varying degrees, retained misgivings about coercive measures under the doctrine’s third pillar. This paper examines how these rising powers engaged with R2P during the 2011–2012 Libyan and Syrian civilian protection crises. The central finding is that although all five states expressed similar concerns over NATO’s military campaign in Libya, they have been unable to maintain a common BRICS position on R2P in Syria. Instead, the BRICS have splintered into two sub-groups. The first, consisting of Russia and China, remains steadfastly opposed to any coercive measures against Syria. The second, comprising the democratic IBSA states (India, Brazil and South Africa) has displayed softer, more flexible stances towards proposed civilian protection measures in Syria, although these three states also remain cautious about the implementation of R2P’s coercive dimension. This paper identifies a number of factors which help to explain this split, arguing that the failure to maintain a cohesive BRICS position on R2P is unsurprising given the many internal differences and diverging national interests between the BRICS members. Overall, the BRICS’ ongoing resistance to intervention is unlikely to disappear quickly, indicating that further attempts to operationalize R2P’s third pillar may prove difficult.

Conflicts over protection of marine living resources : the ‘Volga Case’ revisited

Non-traditional maritime security concerns have become more importantthan ever in the post-Cold War era. Naval forces of most developedcountries are more concerned about these threats than conventional war.One of the main maritime security issues for many countries in the world isillegal, unreported and unregulated (IUU) fishing in the marine area. Withthese burgeoning issues comes the potential for a large number of disputesinvolving international law. In early 2002, a long-line fishing vessel under aRussian flag –the Volga, was detained by Australian authorities a few hundred meters outside the Exclusive Economic Zone of Australia’s Heard and McDonald Islands in the Southern Ocean. The vessel was reportedly engaged in illegal fishing. This incident gave birth to litigation in international and Australian courts. Apart from these cases, Russia also announced separate litigation against Australia for violation of Articles 111and 87 of the United Nations Convention on the Law of the Sea (NCLOS).Considering the outcome of these cases, this article critically examines thecharacteristics of litigation as a strategy for pacific settlement of disputesover marine living resources. Using the Volga Case as an example, thisarticle explores some issues related to the judicial settlement of disputes over marine living resources. This article demonstrates that the legal certainty of winning a case may not be the only factor influencing the strategy for settlement of an international dispute.

Implementation of the MARPOL Convention in developing countries

Over the years a large set of international conventions have been adopted under the auspices of the International Maritime Organization for prevention of vessel-source marine pollution. However, most of developing countries failed to effectively implement these conventions. Against this backdrop, this article aims to assess the inherent suitability of the MARPOL Convention for implementation in developing countries. It also examines the role of global community for effective implementation of the MARPOL Convention and identifies the legal and institutional bottlenecks in the current implementation regime.

Violation of labour rights in the ship-breaking yards of Bangladesh

Ship-breaking started as an industry in Bangladesh in the early 1970s. This industry is not technically organized, and the management is also primitive and unsound. Although specific information is not available, it is estimated that about 700 workers have been killed and, at the same time, a total of 10,000 workers have been injured in explosions at the ship-breaking yards over the last three decades. This process continues unabated in the absence of specific legislation for regulating ship-breaking industries in Bangladesh. Against this backdrop, this paper identifies the major issues relating to enforcement of labour rights in the ship-breaking yards of Bangladesh.

Future of the Haze Agreement : is the glass half empty or half full?

"In 1997–98, the ASEAN (Association of Southeast Asian Nations) region suffered an unprecedented health and environmental catastrophe due to choking haze created by a massive forest !re in Indonesia. It is estimated that the total losses from the fire could be US$5–6 billion after taking into account the loss of trees and other natural resources as well as the long-term impact on human health. This unprecedented anthropogenic disaster not only created a severe health and environmental hazard but also raised a question mark about the credibility and effectiveness of the ASEAN regional grouping. Against this background, ASEAN took a number of regional initiatives to try and solve the problem and finally adopted a new treaty for regional cooperation to combat forest fire and haze in 2002. This paper assesses the future success of this agreement from the perspectives of the legal, institutional and geopolitical reality of the region. Since numerous studies have examined state responsibility for transboundary environmental harm under international law and its implications on the ASEAN haze problem, this article will not touch upon that general debate nor the remedies that are possibly available to victim states. Rather, it will focus on the ASEAN regional legal and institutional initiatives to combat the haze pollution and compare them with a similar European regional agreement. Regarding the following analysis, it is important to recognise the uncertainty arising from Indonesia’s status (presently a non-party to the Agreement). A primary indication of the future effectiveness of this agreement can be drawn from an analysis of the principles involved in this agreement, bearing in mind the inherent difficulty of enforcing norms in the international environmental legal system as a whole, and the geopolitical reality of the region."

Climate change and reduction of emissions of greenhouse gases from ships : an appraisal

Article 2(2) of the Kyoto Protocol imposes an obligation only on certain developed countries, working through the International Maritime Organisation (IMO), to pursue the reduction of greenhouse gas (GHG) emissions from marine bunker fuels. The IMO recently took the initiative to adopt a new legal instrument for the reduction of shipgenerated greenhouse gas emissions. Some developing countries have suggested that the proposed IMO initiative should strictly adhere to Article 2(2) of the Kyoto Protocol and the principle of Common but Differentiated Responsibility (CBDR). Against this backdrop, this article intends to review the extent to which it is possible to propose an international legal instrument for the reduction of GHG emissions from marine bunker fuels which is applicable only to ships from developed countries considering the complex characteristics of the international shipping industry. This article also examines how far this approach is justifiable even within the framework of the CBDR principle.

The judiciary in contemporary society : Australia

In Australia the appointment of judges is, by constitution or statute, universally the responsibility of the executive branch. The federal government handles all such matters relating to the High Court, the Federal Court, the Family Court and other federal judicial bodies. State governments exercise similar authority over the state supreme courts, district and magistrates' courts. All appointments are formally made by the Governor-General, or the Governor, in Council...

Addressing vulnerability and human rights in disaster response mechanisms in Oceania

The Oceania region is an area particularly prone to natural disasters such as cyclones, tsunamis, floods, droughts, earthquakes and volcanic eruptions. Many of the nations in the region are Small Island Developing States (SIDS), yet even within wealthy states such as Australia and New Zealand there are groups which are vulnerable to disaster. Vulnerability to natural disaster can be understood in human rights terms, as natural disasters threaten the enjoyment of a number of rights which are guaranteed under international law, including rights to health, housing, food, water and even the right to life itself. The impacts of climate change threaten to exacerbate these vulnerabilities, yet, despite the foreseeability of further natural disasters as a result of climate change, there currently exists no comprehensive international framework for disaster response offering practical and/or legally reliable mechanisms to assist at‐risk states and communities. This paper sets out to explore the human rights issues presented by natural disasters and examine the extent to which these issues can be addressed by disaster response frameworks at the international, regional and national levels.

Legal activism for ensuring environmental justice

This article reviews some of the roles environmental lawyers have played in ensuring environmental justice in Bangladesh. It leans on law and social movement theories to explicate the choice (and ensuing success) of litigation as a movement strategy in Bangladesh. The activists successfully moved the courts to read the right to a decent environment into the fundamental right to life, and this has had the far-reaching effect of constituting a basis for standing for the activists and other civil society organisations. The activists have also sought to introduce emerging international law principles into the jurisprudence of the courts. These achievements notwithstanding, the paper notes that litigation is not a sustainable way to institute enduring environmental protection in any jurisdiction and recommends the utilisation of the reputation and recognition gained through litigation to deploy or encourage more sustainable strategies.

Democracy and participation in Singapore : a case study

A typical characteristic of the ongoing practice of democracy in Singapore has been described by some scholars as 'illiberal democracy'. Noting that Singapore 's brand of democracy operates within a 'dominant, one-party system', other scholars cushioned such a democratic practice by their reference to 'semi-democracy', 'controlled democracy, 'guided democracy, and 'communitarian democracy'. However, despite the demonstration that there are many restrictions in the type of democracy that exists in Singapore, the benefits are numerous. Singapore is the only country in the world to have transformed itself from a developing country to a developed country in less than only forty years. But its slower move towards a culture ofparticipation must move as quickly as globalization does if it is to remain in relevant and legitimate democracy. If the younger generation understands that they should have the right to a voice before the government acknowledges it, the transition could be more tumultuous than necessary.

Prosecution of maritime terrorists : the role of national courts in ensuring accountability

Maritime security has emerged as a critical legal and political issue in the contemporary world. Terrorism in the maritime domain is a major maritime security issue. Ten out of the 44 major terrorist groups of the world, as identified in the US Department of State’s Country Reports on Terrorism, have maritime terrorism capabilities. Prosecution of maritime terrorists is a politically and legally difficult issue, which may create conflicts of jurisdiction. Prosecution of alleged maritime terrorists is carried out by national courts. There is no international judicial institution for the prosecution of maritime terrorists. International law has therefore anticipated a vital role for national courts in this respect. The international legal framework for combating maritime terrorism has been elaborately examined in existing literature therefore this paper will only highlight the issues regarding the prosecution of maritime terrorists. This paper argues that despite having comprehensive intentional legal framework for the prosecution of maritime terrorists there is still some scopes for conflicts of jurisdiction particularly where two or more States are interested to prosecute the same offender. This existing legal problem has been further aggravated in the post September 11 era. Due to the political and security implications, States may show reluctance in ensuring the international law safeguards of alleged perpetrators in the arrest, detention and prosecution process. Nevertheless, international law has established a comprehensive system for the prosecution of maritime terrorists where national courts is the main forum of ensuring the international law safeguards of alleged perpetrators as well as ensuring the effective prosecution of maritime terrorists thereby playing an instrumental role in establishing a rule based system for combating maritime terrorism. Using two case studies, this paper shows that the role of national courts has become more important in the present era because there may be some situations where no State is interested to initiate proceedings in international forums for vindicating rights of an alleged offender even if there is a clear evidence of violation of international human rights law in the arrest, detention and prosecution process. This paper presents that despite some bottlenecks national courts are actively playing this critical role. Overall, this paper highlights the instrumental role of national courts in the international legal order.

The responsibility to protect and the Arab Spring : Libya as the exception, Syria as the norm?

On March 17 2011 the UN Security Council passed resolution 1973 authorising the use of force for civilian protection purposes in Libya.1 This resolution was hailed by many supporters of the responsibility to protect (R2P) as a crucial step towards the consolidation of the concept’s normative standing.2 Gareth Evans described the intervention as ‘a textbook case of the R2P norm working exactly as it was supposed to’.3 For Lloyd Axworthy the Libya episode signalled a move towards a ‘more humane world’.4 UN Secretary-General Ban Ki-Moon declared that it ‘affirms, clearly and unequivocally, the international community’s determination to fulfil its responsibility to protect civilians from violence perpetrated by their own government.’5 At first glance, the Security Council’s rapid, decisive response to escalating violence in Libya might well have suggested a new willingness on the part of the international community to take collective action to avert intra-state humanitarian crises. However, a closer examination of the text of resolution 1973 and statements by Security Council member states reveals a less than complete endorsement of R2P. Disagreements between states over the scope of the mandate for the use of force in Libya quickly emerged. Long-standing fears among Russia, China and other non-Western states that R2P could be used as a pretext for regime change returned to the fore as the legality and legitimacy of NATO’s military action were called into question. This post-Libya backlash against R2P has been a central factor in the international community’s subsequent inability to agree on effective civilian protection measures in Syria. Much of the optimism that surrounded R2P in the immediate aftermath of resolution 1973 has given way to a sober realization that achieving international consensus on civilian protection measures will rarely be straightforward.