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 need for legislative reform of the privity doctrine in commercial contracts in Malaysia : a comparative analysis

This thesis commences with the proposition that the first limb of the doctrine of privity causes injustice to third party beneficiaries in Malaysia, particularly in commercial contracts. The doctrine of privity has been the subject of criticism by the judiciary and academic commentators in common law jurisdictions, mainly directed at the first limb of the doctrine, whereby only parties to a contract can sue and be sued. The first limb prevents a third party from enforcing benefits conferred on them by those contracts thereby resulting in third parties suffering loss and injustice to those parties. In several common law countries, such as England, Australia, New Zealand and Singapore, legislative reform of the doctrine has occurred. The legislative reform has abrogated to a significant extent the doctrine of privity in commercial contracts. Malaysia is a common law country, where the doctrine of privity is still applied to contracts. An analysis of Malaysian case law demonstrates that the most affected third party beneficiaries are those seeking to enforce insurance and construction contracts. While a small number of other third parties to commercial contracts, such as agreements to pay for work done, sale and purchase agreements and tenancy agreements are also affected, the detriment is not as significant. As a consequence, this thesis focuses primarily on the impact of the doctrine of privity on commercial contracts in the areas of insurance and construction in Malaysia The thesis aims to recommend appropriate reforms to address the injustices arising from the privity doctrine for third parties seeking to obtain the benefit of insurance and construction contracts, which may also benefit third parties to other types of commercial contracts. While the Malaysian insurance, consumer protection, negotiable instruments and agency laws allow third party beneficiaries to enforce benefits in contracts, the rights are found to be inadequate. As not all third parties seeking to enforce an insurance or construction contract can rely upon the legislation, the injustice arising from the doctrine of privity remains and needs to be addressed. To achieve this aim, a comparative analysis of the rights of third party beneficiaries under insurance and construction contracts in Malaysia, Australia and England is undertaken. The results of the analysis are used to identify appropriate elements for a legislative framework guided by the three essential criteria for effective law reform developed in the thesis. The three criteria are certainty, public interest and justice. The thesis recommends first the enactment of general legislation applicable to all commercial contracts including insurance contracts. Secondly, the thesis recommends specific targeted legislation to address the injustice faced by third party beneficiaries in construction contracts.

The doctrine of necessity and the detention and restraint of people with intellectual impairment: Is there any justification?

In Australia, the legal basis for the detention and restraint of people with intellectual impairment is ad hoc and unclear. There is no comprehensive legal framework that authorises and regulates the detention of, for example, older people with dementia in locked wards or in residential aged care, people with disability in residential services or people with acquired brain injury in hospital and rehabilitation services. This paper focuses on whether the common law doctrine of necessity (or its statutory equivalents) should have a role in permitting the detention and restraint of people with disabilities. Traditionally, the defence of necessity has been recognised as an excuse, where the defendant, faced by a situation of imminent peril, is excused from the criminal or civil liability because of the extraordinary circumstances they find themselves in. In the United Kingdom, however, in In re F (Mental Patient: Sterilisation) and R v Bournewood Community and Mental Health NHS Trust, ex parte L, the House of Lords broadened the defence so that it operated as a justification for treatment, detention and restraint outside of the emergency context. This paper outlines the distinction between necessity as an excuse and as a defence, and identifies a number of concerns with the latter formulation: problems of democracy, integrity, obedience, objectivity and safeguards. Australian courts are urged to reject the United Kingdom approach and retain an excuse-based defence, as the risks of permitting the essentially utilitarian model of necessity as a justification are too great.

Confronting Confucian Understandings of the Christian Doctrine of Salvation : A systematic theological analysis of the basic problems in the Confucian-Christian dialogue

The aim of the present study is to analyze Confucian understandings of the Christian doctrine of salvation in order to find the basic problems in the Confucian-Christian dialogue. I will approach the task via a systematic theological analysis of four issues in order to limit the thesis to an appropriate size. They are analyzed in three chapters as follows: 1. The Confucian concept concerning the existence of God. Here I discuss mainly the issue of assimilation of the Christian concept of God to the concepts of Sovereign on High (Shangdi) and Heaven (Tian) in Confucianism. 2. The Confucian understanding of the object of salvation and its status in Christianity. 3. The Confucian understanding of the means of salvation in Christianity. Before beginning this analysis it is necessary to clarify the vast variety of controversies, arguments, ideas, opinions and comments expressed in the name of Confucianism; thus, clear distinctions among different schools of Confucianism are given in chapter 2. In the last chapter I will discuss the results of my research in this study by pointing out the basic problems that will appear in the analysis. The results of the present study provide conclusions in three related areas: the tacit differences in the ways of thinking between Confucians and Christians, the basic problems of the Confucian-Christian dialogue, and the affirmative elements in the dialogue. In addition to a summary, a bibliography and an index, there are also eight appendices, where I have introduced important background information for readers to understand the present study.

M/V ELPIS Coral Reef Restoration Monitoring Report Monitoring Events 2004-2007 Florida Keys National Marine Sanctuary, Monroe County, Florida

This document presents the results of the first three monitoring events to track the recovery of a repaired coral reef injured by the M/V Elpis vessel grounding incident of November 11, 1989. This grounding occurred within the boundaries of what at the time was designated the Key Largo National Marine Sanctuary (NMS), now designated the Key Largo NMS Existing Management Area within the Florida Keys National Marine Sanctuary (FKNMS). Pursuant to the National Marine Sanctuaries Act (NMSA) 16 U.S.C. 1431 et seq., and the Florida Keys National Marine Sanctuary and Protection Act (FKNMSPA) of 1990, NOAA is the federal trustee for the natural and cultural resources of the FKNMS. Under Section 312 of the NMSA, NOAA has the authority to recover monetary damages for injury, destruction, or loss of Sanctuary resources, and to use the recovered monies to restore injured or lost sanctuary resources within the FKNMS. The restoration monitoring program tracks patterns of biological recovery, determines the success of restoration measures, and assesses the resiliency to environmental and anthropogenic disturbances of the site over time. To evaluate restoration success, reference habitats adjacent to the restoration site are concurrently monitored to compare the condition of restored reef areas with natural coral reef areas unimpacted by the vessel grounding. Restoration of the site was completed September 1995, and thus far three monitoring events have occurred; one in the summer of 2004, one in the summer of 2005, and the latest in the summer of 2007. The monitoring in 2004 was in the nature of a “pilot project,” or proof of concept. Only the quantitative results of the 2005 and 2007 monitoring are presented and discussed. Monitoring has consisted of assessment of the structural stability of limestone boulders used in the restoration and comparison of the coral communities on the boulders and reference areas. Corals are divided into Gorgonians, Milleporans, and Scleractinians. Coral densities at the Restored and Reference areas for the 2005 and 2007 events are compared, and it is shown that the densities of all taxa in the Restored area are greater by 2007, though not significantly so. For the Scleractinians, number and percentage of colonies by species, as well as several common biodiversity indices are provided. The greater biodiversity of the Restored area is evidenced. Also, size-class frequency distributions for Agaricia spp. (Scleractinia) are presented. These demonstrate the approaching convergence of the Restored and Reference areas in this regard. An inter-annual comparison of densities, within both areas, for all three Orders, is presented. The most noteworthy finding was the relative consistency across time for all taxa in each area. Finally, certain anomalies regarding species settlement patterns are presented. (PDF contains 48 pages.)

M/V WELLWOOD Coral Reef Restoration Monitoring Report, Monitoring Events 2004-2006. Florida Keys National Marine Sanctuary Monroe County, Florida

This document presents the results of the first two monitoring events to track the recovery of a repaired coral reef injured by the M/V Wellwood vessel grounding incident of August 4, 1984. This grounding occurred within the boundaries of what at the time was designated the Key Largo National Marine Sanctuary (NMS), now designated the Key Largo NMS Existing Management Area within the Florida Keys National Marine Sanctuary (FKNMS). Pursuant to the National Marine Sanctuaries Act (NMSA) 16 U.S.C. 1431 et seq., and the Florida Keys National Marine Sanctuary and Protection Act (FKNMSPA) of 1990, NOAA is the federal trustee for the natural and cultural resources of the FKNMS. Under Section 312 of the NMSA, NOAA has the authority to recover monetary damages for injury, destruction, or loss of Sanctuary resources, and to use the recovered monies to restore injured or lost sanctuary resources within the FKNMS. The restoration monitoring program tracks patterns of biological recovery, determines the success of restoration measures, and assesses the resiliency to environmental and anthropogenic disturbances of the site over time. To evaluate restoration success, reference habitats adjacent to the restoration site are concurrently monitored to compare the condition of restored reef areas with “natural” coral reef areas unimpacted by the vessel grounding or other injury. Restoration of the site was completed on July 22, 2002, and thus far two monitoring events have occurred; one in the Fall of 2004, and one in the Summer/Fall of 2006. The monitoring has consisted of: assessment of the structural stability of restoration modules and comparison of the coral recruitment conditions of the modules and reference sites. Corals are divided into Gorgonians, Milleporans, and Scleractinians and (except where noted) recruits are defined as follows: Gorgonians—maximum size (height) 150 mm at first monitoring event, 270 mm at second; Milleporans—maximum size (height) 65 mm at first event, 125 mm at second; Scleractinians—maximum size (greatest diameter) 50 mm at second event (only one species was size-classed at first event, at smaller size). Recruit densities at the restored and reference areas for each event are compared, as are size-class frequency distributions. For the Scleractinians, number and percentage of recruits by species, as well as several common biodiversity indices are provided. Finally, a qualitative comparison of recruit substrate settlement preference is indicated. Generally, results indicate that restored areas are converging on reference areas, based on almost all parameters examined, with one noted exception. Further monitoring is planned and the trends are anticipated to continue; close attention will be paid to the indicated anomaly. (PDF contains 63 pages.)

M/V CONNECTED Coral Reef Restoration Monitoring Report, Monitoring Events 2004-2005. Florida Keys National Marine Sanctuary Monroe County, Florida

This document presents the results of the monitoring of a repaired coral reef injured by the M/V Connected vessel grounding incident of March 27, 2001. This grounding occurred in Florida state waters within the boundaries of the Florida Keys National Marine Sanctuary (FKNMS). The National Oceanic and Atmospheric Administration (NOAA) and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, (“State of Florida” or “state”) are the co-trustees for the natural resources within the FKNMS and, thus, are responsible for mediating the restoration of the damaged marine resources and monitoring the outcome of the restoration actions. The restoration monitoring program tracks patterns of biological recovery, determines the success of restoration measures, and assesses the resiliency to environmental and anthropogenic disturbances of the site over time. The monitoring program at the Connected site was to have included an assessment of the structural stability of installed restoration modules and biological condition of reattached corals performed on the following schedule: immediately (i.e., baseline), 1, 3, and 6 years after restoration and following a catastrophic event. Restoration of this site was completed on July 20, 2001. Due to unavoidable delays in the settlement of the case, the “baseline” monitoring event for this site occurred in July 2004. The catastrophic monitoring event occurred on August 31, 2004, some 2 ½ weeks after the passage of Hurricane Charley which passed nearby, almost directly over the Dry Tortugas. In September 2005, the year one monitoring event occurred shortly after the passage of Hurricane Katrina, some 70 km to the NW. This report presents the results of all three monitoring events. (PDF contains 37 pages.)

M/V JACQUELYN L Coral Reef Restoration Monitoring Report, Monitoring Events 2004-2005. Florida Keys National Marine Sanctuary Monroe County, Florida

This document presents the results of the monitoring of a repaired coral reef injured by the M/V Jacquelyn L vessel grounding incident of July 7, 1991. This grounding occurred in Florida state waters within the boundaries of the Florida Keys National Marine Sanctuary (FKNMS). The National Oceanic and Atmospheric Administration (NOAA) and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, (“State of Florida” or “state”) are the co-trustees for the natural resources within the FKNMS and, thus, are responsible for mediating the restoration of the damaged marine resources and monitoring the outcome of the restoration actions. The restoration monitoring program tracks patterns of biological recovery, determines the success of restoration measures, and assesses the resiliency to environmental and anthropogenic disturbances of the site over time. The monitoring program at the Jacquelyn L site was to have included an assessment of the structural stability of installed restoration modules and biological condition of reattached corals performed on the following schedule: immediately (i.e., baseline), 1, 3, and 6 years after restoration and following a catastrophic event. Restoration of this site was completed on July 20, 2000. Due to unavoidable delays in the settlement of the case, the “baseline” monitoring event for this site occurred in July 2004. The catastrophic monitoring event occurred on August 31, 2004, some 2 ½ weeks after the passage of Hurricane Charley which passed nearby, almost directly over the Dry Tortugas. In September 2005, the year one monitoring event occurred shortly after the passage of Hurricane Katrina, some 70 km to the NW. This report presents the results of all three monitoring events. (PDF contains 31 pages.)

M/V WAVE WALKER Coral reef restoration baseline monitoring report – 2004 Florida Keys National Marine Sanctuary, Monroe County, Florida

This document presents the results of baseline monitoring of a repaired coral reef injured by the M/V Wave Walker vessel grounding incident of January 19, 2001. This grounding occurred in Florida state waters within the boundaries of the Florida Keys National Marine Sanctuary (FKNMS). The National Oceanic and Atmospheric Administration (NOAA) and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, (“State of Florida” or “state”) are the co-trustees for the natural resources within the FKNMS. This report documents the efficacy of the restoration effort, the condition of the restored reef area two year and four months post-effort, and provides a picture of surrounding reference areas, so as to provide a basis for future comparisons by which to evaluate the long-term success of the restoration. (PDF contains 25 pages.)

Contrasting Models of Posttraumatic Stress Disorder: Reply to Monroe and Mineka (2008)

The authors address the 4 main points in S. M. Monroe and S. Mineka's (2008) comment. First, the authors show that the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev.; American Psychiatric Association, 2000) posttraumatic stress disorder (PTSD) diagnosis includes an etiology and that it is based on a theoretical model with a distinguished history in psychology and psychiatry. Two tenets of this theoretical model are that voluntary (strategic) recollections of the trauma are fragmented and incomplete while involuntary (spontaneous) recollections are vivid and persistent and yield privileged access to traumatic material. Second, the authors describe differences between their model and other cognitive models of PTSD. They argue that these other models share the same 2 tenets as the diagnosis and show that these 2 tenets are largely unsupported by empirical evidence. Third, the authors counter arguments about the strength of the evidence favoring the mnemonic model. Fourth, they show that concerns about the causal role of memory in PTSD are based on views of causality that are generally inappropriate for the explanation of PTSD in the social and biological sciences. © 2008 American Psychological Association.